At the time of the Civil War, this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as having any legal existence. 1797 Today, its practical significance lies in the limitations which it implies upon the power of the States to deal with matters having a bearing upon international relations. In the early case of Holmes v. Jennison, 1798 Chief Justice Taney invoked it as a reason for holding that a State had no power to deliver up a fugitive from justice to a foreign State. Recently, the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the Federal Government prompted the Court to hold that, since the oil under the three mile marginal belt along the California coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area. 1799 In Skiriotes v. Florida, 1800 the Court, on the other hand, ruled that this clause did not disable Florida from regulating the manner in which its own citizens may engage in sponge fishing outside its territorial waters. Speaking for a unanimous Court, Chief Justice Hughes declared; ''When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances.'' 1801
Within the sense of the Constitution, bills of credit signify a paper medium of exchange, intended to circulate between individuals, and between the Government and individuals, for the ordi nary purposes of society. It is immaterial whether the quality of legal tender is imparted to such paper. Interest bearing certificates, in denominations not exceeding ten dollars, which were issued by loan offices established by the State of Missouri and made receivable in payment of taxes or other moneys due to the State, and in payment of the fees and salaries of state officers, were held to be bills of credit whose issuance was banned by this section. 1802 The States are not forbidden, however, to issue coupons receivable for taxes, 1803 nor to execute instruments binding themselves to pay money at a future day for services rendered or money borrowed. 1804 Bills issued by state banks are not bills of credit; 1805 it is immaterial that the State is the sole stockholder of the bank, 1806 that the officers of the bank were elected by the state legislature, 1807 or that the capital of the bank was raised by the sale of state bonds. 1808
Relying on this clause, which applies only to the States and not to the Federal Government, 1809 the Supreme Court has held that where the marshal of a state court received state bank notes in payment and discharge of an execution, the creditor was entitled to demand payment in gold or silver. 1810 Since, however, there is nothing in the Constitution prohibiting a bank depositor from consenting when he draws a check that payment may be made by draft, a state law providing that checks drawn on local banks should, at the option of the bank, be payable in exchange drafts was held valid. 1811
Statutes passed after the Civil War with the intent and result of excluding persons who had aided the Confederacy from following certain callings, by the device of requiring them to take an oath that they had never given such aid, were held invalid as being bills of attainder, as well as ex post facto laws. 1812
Other attempts to raise bill-of-attainder claims have been unsuccessful. A Court majority denied that a municipal ordinance, that required all employees to execute oaths that they had never been affiliated with Communist or similar organizations, violated the clause, on the grounds that the ordinance merely provided standards of qualifications and eligibility for employment. 1813 A law that prohibited any person convicted of a felony and not subsequently pardoned from holding office in a waterfront union was not a bill of attainder because the ''distinguishing feature of a bill of attainder is the substitution of a legislative for a judicial determination of guilt'' and the prohibition ''embodies no further implications of appellant's guilt than are contained in his 1920 judicial conviction.'' 1814
Scope of the Provision .--This clause, like the cognate restriction imposed on the Federal Government by Sec. 9, relates only to penal and criminal legislation and not to civil laws that affect private rights adversely. 1815 There are three categories of ex post facto laws: those ''which punish as a crime an act previously committed, which was innocent when done; which make more burdensome the punishment for a crime, after its commission; or which deprive one charged with crime of any defense available according to law at the time when the act was committed.'' 1816 The bar is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts. 1817 Even though a law is ex post facto and invalid as to crimes committed prior to its enactment, it is nonetheless valid as to subsequent offenses. 1818 If it mitigates the rigor of the law in force at the time the crime was committed, 1819 or if it merely penalizes the continuance of conduct lawfully begun before its passage, the statute is not ex post facto. Thus, measures penalizing the failure of a railroad to cut drains through existing embankments 1820 or making illegal the continued possession of intoxicating liquors which were lawfully acquired 1821 have been held valid.
Denial of Future Privileges to Past Offenders .--The right to practice a profession may be denied to one who was convicted of an offense before the statute was enacted if the offense reasonably may be regarded as a continuing disqualification for the profession. Without offending the Constitution, statutes barring a person from practicing medicine after conviction of a felony 1822 or excluding convicted felons from waterfront union offices, unless pardoned or in receipt of a parole board's good conduct certificate, 1823 may be enforced against a person convicted before the measures were passed. But the test oath prescribed after the Civil War, whereby office holders, teachers, or preachers were required to swear that they had not participated in the Rebellion, was held invalid on the ground that it had no reasonable relation to fitness to perform official or professional duties, but rather was a punishment for past offenses. 1824 A similar oath required of suitors in the courts also was held void. 1825
Changes in Punishment .--Statutes that changed an indeterminate sentence law to require a judge to impose the maximum sentence, whereas formerly he could impose a sentence between the minimum and maximum, 1826 required criminals sentenced to death to be kept thereafter in solitary confinement, 1827 or allowed a warden to fix, within limits of one week, and keep secret the time of execution, 1828 were held to be ex post facto as applied to offenses committed prior to their enactment. Because it made more onerous the punishment for crimes committed before its enactment, a law, a law that altered sentencing guidelines to make it more likely the sentencing authority would impose on a defendant a more severe sentence than was previously likely and making it impossible for the defendant to challenge the sentence was ex post facto as to one who had committed the offense prior to the change. 1829 But laws providing heavier penalties for new crimes thereafter committed by habitual criminals, 1830 changing the punishment from hanging to electrocution, fixing the place therefor in the penitentiary, and permitting the presence of a greater number of invited witnesses, 1831 or providing for close confinement of six to nine months in the penitentiary, in lieu of three to six months in jail prior to execution, and substituting the warden for the sheriff as hangman, have been sustained. 1832
In Dobbert v. Florida, 1833 the Court may have formulated a new test for determining when a criminal statute vis-a-vis punishment is ex post facto. Defendant murdered two of his children; at the time of the commission of the offenses, Florida law provided the death penalty upon conviction for certain takings of life. Subsequent to the commission of the capital offenses, the Supreme Court held laws similar to Florida's unconstitutional to the extent that death was a sentence under them, although convictions obtained under the statutes were not to be overturned, 1834 and the Florida Supreme Court voided its death penalty statutes on the authority of the High Court decision. The Florida legislature then enacted a new capital punishment law, which was sustained. Dobbert was convicted and sentenced to death under the new law, which was enacted after the commission of his offenses. The Court rejected the ex post facto challenge to the sentence on the basis that whether the old statute was constitutional or not, ''it clearly indicated Florida's view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.'' 1835 Whether the ''fair warning'' standard is to have any prominent place in ex post facto jurisprudence may be an interesting question but it is problematical in any event whether the fact situation will occur often enough to make the principle applicable in very many cases.
Changes in Procedure .--An accused person does not have a right to be tried in all respects in accordance with the law in force when the crime charged was committed. 1836 Laws shifting the place of trial from one county to another, 1837 increasing the number of appellate judges and dividing the appellate court into divisions, 1838 granting a right of appeal to the State, 1839 changing the method of selecting and summoning jurors, 1840 making separate trials for persons jointly indicted a matter of discretion for the trial court rather than a matter of right, 1841 and allowing a comparison of handwriting experts 1842 have been sustained over the objection that they were ex post facto. It was said or suggested in a number of these cases, and two decisions were rendered precisely on the basis, that the mode of procedure might be changed only so long as the substantial rights of the accused were not curtailed. 1843 The Court has now disavowed this position. 1844 All that the language of most of these cases meant was that a legislature might not evade the ex post facto clause by labeling changes as alteration of ''procedure.'' If a change labeled ''procedural'' effects a substantive change in the definition of a crime or increases punishment or denies a defense, the clause is invoked; however, if a law changes the procedures by which a criminal case is adjudicated, the clause is not implicated, regardless of the increase in the burden on a defendant. 1845
[Footnote 1801] Id., 78-79.
[Footnote 1815] Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Watson v. Mercer, 33 U.S. (8 Pet.) 88, 110 (1834); Baltimore and Susquehanna Railroad Co. v. Nesbit, 51 U.S. (10 How.) 395, 401 (1850); Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 463 (1855); Loche v. New Orleans, 71 U.S. (4 Wall.) 172 (1867); Orr v. Gilman, 183 U.S. 278, 285 (1902); Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911).
[Footnote 1816] Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169 -170 (1925)). Alternatively, the Court described the reach of the clause as extending to laws that ''alter the definition of crimes or increase the punishment for criminal acts.'' Id., 43.
[Footnote 1817] Frank v. Mangum, 237 U.S. 309, 344 (1915); Ross v. Oregon, 227 U.S. 150, 161 (1913). However, an unforeseeable judicial enlargement of a criminal statute so as to encompass conduct not covered on the face of the statute operates like an ex post facto law if it is applied retroactively and violates due process in that event. Bouie v. City of Columbia, 378 U.S. 347 (1964). See Marks v. United States, 430 U.S. 188 (1977) (applying Bouie in context of Sec. 9, cl. 3). But see Splawn v. California, 431 U.S. 595 (1977) (rejecting application of Bouie ). The Court itself has not always adhered to this standard. See Ginzburg v. United States, 383 U.S. 463 (1966).
[Footnote 1829] Miller v. Florida, 482 U.S. 423 (1987). But see California Dep't of Corrections v. Morales, 514 U.S. 499 (1995) (a law amending parole procedures to decrease frequency of parole-suitability hearings is not ex post facto as applied to prisoners who committed offenses before enactment). The opinion modifies previous opinions that had held impermissible some laws because they operated to the disadvantage of covered offenders. Henceforth, ''the focus of ex post facto inquiry is . . . whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.'' Id. at 506 n.3.
[Footnote 1835] Id., 432 U.S., 297.
[Footnote 1843] E.g., Duncan v. Missouri, 152 U.S. 377, 382 -383 (1894); Malloy v. South Carolina, 237 U.S. 180, 183 (1915); Beazell v. Ohio, 269 U.S. 167, 171 (1925). The two cases decided on the basis of the distinction were Thompson v. Utah, 170 U.S. 343 (1898) (application to felony trial for offense committed before enactment of change from 12- person jury to an eight-person jury void under clause), and Kring v. Missouri, 107 U.S. 221 (1883) (as applied to a case arising before change, a law abolishing a rule under which a guilty plea functioned as a acquittal of a more serious offense, so that defendant could be tried on the more serious charge, a violation of the clause).
[Footnote 1845] Id., 44, 52. Youngblood upheld a Texas statute, as applied to a person committing an offense and tried before passage of the law, that authorized criminal courts to reform an improper verdict assessing a punishment not authorized by law, which had the effect of denying defendant a new trial to which he would have been previously entitled.