ROGERS v. TENNESSEE

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451 OCTOBER TERM, 2000
Syllabus
ROGERS v. TENNESSEE
certiorari to the supreme court of tennessee
No. 99–6218. Argued November 1, 2000—Decided May 14, 2001
Following James Bowdery’s death some 15 months after petitioner
stabbed him, petitioner was convicted in Tennessee state court of second
degree murder under the State’s criminal homicide statute. Although
that statute makes no mention of the common law “year and a day
rule”—under which no defendant could be convicted of murder unless
his victim died by the defendant’s act within a year and a day of the
act, see, e. g., Louisville, E. & St. L. R. Co. v. Clarke, 152 U. S. 230, 239—
petitioner argued on appeal that the rule persisted as part of the State’s
common law and, as such, precluded his conviction. The Tennessee
Court of Criminal Appeals disagreed and affirmed the conviction. In
affirming, the State Supreme Court abolished the rule, finding that the
reasons for recognizing the rule at common law no longer existed. The
court disagreed with petitioner’s contention that application of its deci-
sion abolishing the rule to his case would violate the Ex Post Facto
Clauses of the State and Federal Constitutions, observing that those
provisions refer only to legislative Acts. The court also concluded that
application of its decision to petitioner would not run afoul of Bouie v.
City of Columbia, 378 U. S. 347, 354, in which this Court held that due
process prohibits retroactive application of any judicial construction of
a criminal statute that is unexpected and indefensible by reference to
the law which has been expressed prior to the conduct in issue.
Held: The Tennessee Supreme Court’s retroactive application to peti-
tioner of its decision abolishing the year and a day rule did not deny
petitioner due process of law in violation of the Fourteenth Amend-
ment. Pp. 456–467.
(a) To the extent petitioner argues that the Due Process Clause incor-
porates the specific prohibitions of the Ex Post Facto Clause, he mis-
reads Bouie. Bouie contains some dicta suggestive of the broad inter-
pretation for which petitioner argues, see, e. g., 378 U. S., at 353–354,
but the decision was rooted firmly in well established notions of due
process. Its rationale rested on core due process concepts of notice,
foreseeability, and, in particular, the right to fair warning as those con-
cepts bear on the constitutionality of attaching criminal penalties to
what previously had been innocent conduct, see, e. g., id., at 351, 352,
354–355. Subsequent decisions have not interpreted Bouie as ex-
tending so far as petitioner suggests, but have uniformly viewed Bouie

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452 ROGERS v. TENNESSEE
Syllabus
as restricted to its traditional due process roots. In doing so, they have
applied Bouie’s check on retroactive judicial decisionmaking not by ref-
erence to the scope of the Ex Post Facto Clause, but, rather, in accord-
ance with the more basic and general principle of fair warning that
Bouie so clearly articulated. See, e. g., United States v. Lanier, 520
U. S. 259, 266. While petitioner’s assertion that the two Clauses safe-
guard common interests is undoubtedly correct, he is mistaken to sug-
gest that these considerations compel extending the Ex Post Facto
Clause’s strictures to the context of common law judging through the
rubric of due process. Such an extension would circumvent the Ex Post
Facto Clause’s clear text, which expressly applies only to legislatures;
would evince too little regard for the important institutional and contex-
tual differences between legislating and common law decisionmaking;
would be incompatible with the resolution of uncertainty that marks
any evolving legal system; and would unduly impair the incremental and
reasoned development of precedent that is the foundation of the common
law system. It was on account of such concerns that Bouie restricted
due process limitations on the retroactive application of judicial inter-
pretations of criminal statutes to those that are unexpected and inde-
fensible by reference to the law which had been expressed prior to the
conduct in issue. See 378 U. S., at 354. That restriction adequately
serves the common law context as well. Pp. 456–462.
(b) The Tennessee court’s abolition of the year and a day rule was not
unexpected and indefensible. Advances in medical and related science
have so undermined the rule’s usefulness as to render it without ques-
tion obsolete, and it has been legislatively or judicially abolished in the
vast majority of jurisdictions recently to have addressed the issue. De-
spite petitioner’s argument to the contrary, the fact that a vast number
of jurisdictions outside Tennessee have abolished the rule is surely rele-
vant to whether its abolition in his case, which involves the continuing
viability of a common law rule, can be said to be unexpected and inde-
fensible by reference to the law as it then existed. Bouie, supra, at
359–360, distinguished. Perhaps most importantly, at the time of peti-
tioner’s crime the rule had only the most tenuous foothold as part of
Tennessee’s criminal law. It did not exist as part of the State’s statu-
tory criminal code, and while the Tennessee Supreme Court concluded
that the rule persisted at common law, it also pointedly observed that
the rule had never once served as a ground of decision in any murder
prosecution in the State. Indeed, in all the reported Tennessee cases,
the rule has been mentioned only three times, and each time in dicta.
These cases hardly suggest that the Tennessee court’s decision was “un-
expected and indefensible” such that it offended the due process princi-
ple of fair warning articulated in Bouie and its progeny. There is noth-

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ing to indicate that abolition of the rule in petitioner’s case represented
an exercise of the sort of unfair and arbitrary judicial action against
which the Due Process Clause aims to protect. Far from a marked and
unpredictable departure from prior precedent, the court’s decision was
a routine exercise of common law decisionmaking that brought the law
into conformity with reason and common sense. Pp. 462–467.
992 S. W. 2d 393, affirmed.
O’Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Kennedy, Souter, and Ginsburg, JJ., joined. Stevens, J.,
filed a dissenting opinion, post, p. 467. Scalia, J., filed a dissenting opin-
ion, in which Stevens and Thomas, JJ., joined, and in which Breyer, J.,
joined as to Part II, post, p. 467. Breyer, J., filed a dissenting opinion,
post, p. 481.
W. Mark Ward argued the cause for petitioner. With him
on the briefs were Tony Brayton and Garland Ergu¨ den.
Michael E. Moore, Solicitor General of Tennessee, argued
the cause for respondent. With him on the brief were Paul
G. Summers, Attorney General, and Gordon W. Smith, Asso-
ciate Solicitor General.*
Justice O’Connor delivered the opinion of the Court.
This case concerns the constitutionality of the retroactive
application of a judicial decision abolishing the common law
“year and a day rule.” At common law, the year and a day
rule provided that no defendant could be convicted of murder
unless his victim had died by the defendant’s act within a
year and a day of the act. See, e. g., Louisville, E. & St. L.
R. Co. v. Clarke, 152 U. S. 230, 239 (1894); 4 W. Blackstone,
Commentaries on the Laws of England 197–198 (1769). The
Supreme Court of Tennessee abolished the rule as it had
existed at common law in Tennessee and applied its decision
to petitioner to uphold his conviction. The question before
us is whether, in doing so, the court denied petitioner due
process of law in violation of the Fourteenth Amendment.
*Paula R. Voss filed a brief for the Tennessee Association of Criminal
Defense Attorneys as amicus curiae urging reversal.

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454 ROGERS v. TENNESSEE
Opinion of the Court
I
Petitioner Wilbert K. Rogers was convicted in Tennessee
state court of second degree murder. According to the un-
disputed facts, petitioner stabbed his victim, James Bow-
dery, with a butcher knife on May 6, 1994. One of the stab
wounds penetrated Bowdery’s heart. During surgery to re-
pair the wound to his heart, Bowdery went into cardiac ar-
rest, but was resuscitated and survived the procedure. As
a result, however, he had developed a condition known as
“cerebral hypoxia,” which results from a loss of oxygen to
the brain. Bowdery’s higher brain functions had ceased,
and he slipped into and remained in a coma until August
7, 1995, when he died from a kidney infection (a common
complication experienced by comatose patients). Approxi-
mately 15 months had passed between the stabbing and
Bowdery’s death which, according to the undisputed testi-
mony of the county medical examiner, was caused by cere-
bral hypoxia “ ‘secondary to a stab wound to the heart.’ ”
992 S. W. 2d 393, 395 (Tenn. 1999).
Based on this evidence, the jury found petitioner guilty
under Tennessee’s criminal homicide statute. The statute,
which makes no mention of the year and a day rule, defines
criminal homicide simply as “the unlawful killing of another
person which may be first degree murder, second degree
murder, voluntary manslaughter, criminally negligent homi-
cide or vehicular homicide.” Tenn. Code Ann. § 39–13–201
(1997). Petitioner appealed his conviction to the Tennessee
Court of Criminal Appeals, arguing that, despite its absence
from the statute, the year and a day rule persisted as part
of the common law of Tennessee and, as such, precluded his
conviction. The Court of Criminal Appeals rejected that ar-
gument and affirmed the conviction. The court held that
Tennessee’s Criminal Sentencing Reform Act of 1989 (1989
Act), which abolished all common law defenses in criminal
actions in Tennessee, had abolished the rule. See Tenn.
Code Ann. § 39–11–203(e)(2) (1997). The court also rejected

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petitioner’s further contention that the legislative abolition
of the rule constituted an ex post facto violation, noting that
the 1989 Act had taken effect five years before petitioner
committed his crime. No. 02C01–9611–CR–00418 (Tenn.
Crim. App., Oct. 17, 1997), App. 7.
The Supreme Court of Tennessee affirmed on different
grounds. The court observed that it had recognized the via-
bility of the year and a day rule in Tennessee in Percer v.
State, 118 Tenn. 765, 103 S. W. 780 (1907), and that, “[d]espite
the paucity of case law” on the rule in Tennessee, “both
parties . . . agree that the . . . rule was a part of the common
law of this State.” 992 S. W. 2d, at 396. Turning to the
rule’s present status, the court noted that the rule has been
legislatively or judicially abolished by the “vast majority” of
jurisdictions recently to have considered the issue. Id., at
397. The court concluded that, contrary to the conclusion of
the Court of Criminal Appeals, the 1989 Act had not abol-
ished the rule. After reviewing the justifications for the
rule at common law, however, the court found that the origi-
nal reasons for recognizing the rule no longer exist. Ac-
cordingly, the court abolished the rule as it had existed at
common law in Tennessee. Id., at 399–401.
The court disagreed with petitioner’s contention that ap-
plication of its decision abolishing the rule to his case would
violate the Ex Post Facto Clauses of the State and Federal
Constitutions. Those constitutional provisions, the court
observed, refer only to legislative Acts. The court then
noted that in Bouie v. City of Columbia, 378 U. S. 347 (1964),
this Court held that due process prohibits retroactive appli-
cation of any “ ‘judicial construction of a criminal statute
[that] is unexpected and indefensible by reference to the law
which has been expressed prior to the conduct in issue.’ ”
992 S. W. 2d, at 402 (quoting Bouie v. City of Columbia,
supra, at 354) (alteration in original). The court concluded,
however, that application of its decision to petitioner would

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not offend this principle. 992 S. W. 2d, at 402. We granted
certiorari, 529 U. S. 1129 (2000), and we now affirm.
II
Although petitioner’s claim is one of due process, the Con-
stitution’s Ex Post Facto Clause figures prominently in his
argument. The Clause provides simply that “[n]o State
shall . . . pass any . . . ex post facto Law.” Art. I, § 10, cl. 1.
The most well-known and oft-repeated explanation of the
scope of the Clause’s protection was given by Justice Chase,
who long ago identified, in dictum, four types of laws to
which the Clause extends:
“1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law
that aggravates a crime, or makes it greater than it was,
when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law re-
quired at the time of the commission of the offense, in
order to convict the offender.” Calder v. Bull, 3 Dall.
386, 390 (1798) (seriatim opinion of Chase, J.) (empha-
sis deleted).
Accord, Carmell v. Texas, 529 U. S. 513, 521–525 (2000); Col-
lins v. Youngblood, 497 U. S. 37, 41–42, 46 (1990). As the
text of the Clause makes clear, it “is a limitation upon the
powers of the Legislature, and does not of its own force apply
to the Judicial Branch of government.” Marks v. United
States, 430 U. S. 188, 191 (1977) (citation omitted).
We have observed, however, that limitations on ex post
facto judicial decisionmaking are inherent in the notion of
due process. In Bouie v. City of Columbia, we considered
the South Carolina Supreme Court’s retroactive application

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of its construction of the State’s criminal trespass statute to
the petitioners in that case. The statute prohibited “entry
upon the lands of another . . . after notice from the owner or
tenant prohibiting such entry . . . .” 378 U. S., at 349, n. 1
(citation and internal quotation marks omitted). The South
Carolina court construed the statute to extend to patrons of
a drug store who had received no notice prohibiting their
entry into the store, but had refused to leave the store when
asked. Prior to the court’s decision, South Carolina cases
construing the statute had uniformly held that conviction
under the statute required proof of notice before entry.
None of those cases, moreover, had given the “slightest indi-
cation that that requirement could be satisfied by proof of
the different act of remaining on the land after being told to
leave.” Id., at 357.
We held that the South Carolina court’s retroactive appli-
cation of its construction to the store patrons violated due
process. Reviewing decisions in which we had held criminal
statutes “void for vagueness” under the Due Process Clause,
we noted that this Court has often recognized the “basic
principle that a criminal statute must give fair warning of
the conduct that it makes a crime.” Id., at 350; see id., at
350–352 (discussing, inter alia, United States v. Harriss, 347
U. S. 612 (1954), Lanzetta v. New Jersey, 306 U. S. 451 (1939),
and Connally v. General Constr. Co., 269 U. S. 385 (1926)).
Deprivation of the right to fair warning, we continued, can
result both from vague statutory language and from an un-
foreseeable and retroactive judicial expansion of statutory
language that appears narrow and precise on its face.
Bouie v. City of Columbia, 378 U. S., at 352. For that rea-
son, we concluded that “[i]f a judicial construction of a crimi-
nal statute is ‘unexpected and indefensible by reference to
the law which had been expressed prior to the conduct in
issue,’ [the construction] must not be given retroactive ef-
fect.” Id., at 354 (quoting J. Hall, General Principles of
Criminal Law 61 (2d ed. 1960)). We found that the South

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Carolina court’s construction of the statute violated this
principle because it was so clearly at odds with the statute’s
plain language and had no support in prior South Carolina
decisions. 378 U. S., at 356.
Relying largely upon Bouie, petitioner argues that the
Tennessee court erred in rejecting his claim that the retroac-
tive application of its decision to his case violates due proc-
ess. Petitioner contends that the Ex Post Facto Clause
would prohibit the retroactive application of a decision abol-
ishing the year and a day rule if accomplished by the Tennes-
see Legislature. He claims that the purposes behind the
Clause are so fundamental that due process should prevent
the Supreme Court of Tennessee from accomplishing the
same result by judicial decree. Brief for Petitioner 8–18.
In support of this claim, petitioner takes Bouie to stand for
the proposition that “[i]n evaluating whether the retroactive
application of a judicial decree violates Due Process, a criti-
cal question is whether the Constitution would prohibit the
same result attained by the exercise of the state’s legislative
power.” Brief for Petitioner 12.
To the extent petitioner argues that the Due Process
Clause incorporates the specific prohibitions of the Ex Post
Facto Clause as identified in Calder, petitioner misreads
Bouie. To be sure, our opinion in Bouie does contain some
expansive language that is suggestive of the broad interpre-
tation for which petitioner argues. Most prominent is our
statement that “[i]f a state legislature is barred by the
Ex Post Facto Clause from passing . . . a law, it must follow
that a State Supreme Court is barred by the Due Process
Clause from achieving precisely the same result by judicial
construction.” 378 U. S., at 353–354; see also id., at 353
(“[A]n unforeseeable judicial enlargement of a criminal stat-
ute, applied retroactively, operates precisely like an ex post
facto law”); id., at 362 (“The Due Process Clause compels the
same result” as would the constitutional proscription against
ex post facto laws “where the State has sought to achieve

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precisely the same [impermissible] effect by judicial con-
struction of the statute”). This language, however, was
dicta. Our decision in Bouie was rooted firmly in well es-
tablished notions of due process. See supra, at 457–458.
Its rationale rested on core due process concepts of notice,
foreseeability, and, in particular, the right to fair warning
as those concepts bear on the constitutionality of attaching
criminal penalties to what previously had been innocent con-
duct. See, e. g., 378 U. S., at 351, 352, 354–355. And we
couched its holding squarely in terms of that established
due process right, and not in terms of the ex post facto-
related dicta to which petitioner points. Id., at 355 (conclud-
ing that “the South Carolina Code did not give [the peti-
tioners] fair warning, at the time of their conduct . . . , that
the act for which they now stand convicted was rendered
criminal by the statute”). Contrary to petitioner’s sugges-
tion, nowhere in the opinion did we go so far as to incorpo-
rate jot-for-jot the specific categories of Calder into due
process limitations on the retroactive application of judicial
decisions.
Nor have any of our subsequent decisions addressing
Bouie-type claims interpreted Bouie as extending so far.
Those decisions instead have uniformly viewed Bouie as re-
stricted to its traditional due process roots. In doing so,
they have applied Bouie’s check on retroactive judicial deci-
sionmaking not by reference to the ex post facto categories
set out in Calder, but, rather, in accordance with the more
basic and general principle of fair warning that Bouie so
clearly articulated. See, e. g., United States v. Lanier, 520
U. S. 259, 266 (1997) (“[D]ue process bars courts from apply-
ing a novel construction of a criminal statute to conduct that
neither the statute nor any prior judicial decision has fairly
disclosed to be within its scope”); Marks v. United States,
430 U. S., at 191–192 (Due process protects against judicial
infringement of the “right to fair warning” that certain con-
duct will give rise to criminal penalties); Rose v. Locke, 423
U. S. 48, 53 (1975) (per curiam) (upholding defendant’s con-

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viction under statute prohibiting “crimes against nature” be-
cause, unlike in Bouie, the defendant “[could] make no claim
that [the statute] afforded no notice that his conduct might
be within its scope”); Douglas v. Buder, 412 U. S. 430, 432
(1973) (per curiam) (trial court’s construction of the term
“arrest” as including a traffic citation, and application of that
construction to defendant to revoke his probation, was un-
foreseeable and thus violated due process); Rabe v. Washing-
ton, 405 U. S. 313, 316 (1972) (per curiam) (reversing convic-
tion under state obscenity law because it did “not giv[e] fair
notice” that the location of the allegedly obscene exhibition
was a vital element of the offense).
Petitioner observes that the Due Process and Ex Post
Facto Clauses safeguard common interests—in particular,
the interests in fundamental fairness (through notice and fair
warning) and the prevention of the arbitrary and vindictive
use of the laws. Brief for Petitioner 12–18. While this is
undoubtedly correct, see, e. g., Lynce v. Mathis, 519 U. S. 433,
439–440, and n. 12 (1997), petitioner is mistaken to suggest
that these considerations compel extending the strictures of
the Ex Post Facto Clause to the context of common law judg-
ing. The Ex Post Facto Clause, by its own terms, does not
apply to courts. Extending the Clause to courts through
the rubric of due process thus would circumvent the clear
constitutional text. It also would evince too little regard for
the important institutional and contextual differences be-
tween legislating, on the one hand, and common law decision-
making, on the other.
Petitioner contends that state courts acting in their com-
mon law capacity act much like legislatures in the exercise
of their lawmaking function, and indeed may in some cases
even be subject to the same kinds of political influences and
pressures that justify ex post facto limitations upon legisla-
tures. Brief for Petitioner 12–18; Reply Brief for Petitioner
15. A court’s “opportunity for discrimination,” however, “is
more limited than [a] legislature’s, in that [it] can only act

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in construing existing law in actual litigation.” James v.
United States, 366 U. S. 213, 247, n. 3 (1961) (Harlan, J., con-
curring in part and dissenting in part). Moreover, “[g]iven
the divergent pulls of flexibility and precedent in our case
law system,” ibid., incorporation of the Calder categories
into due process limitations on judicial decisionmaking would
place an unworkable and unacceptable restraint on normal
judicial processes and would be incompatible with the resolu-
tion of uncertainty that marks any evolving legal system.
That is particularly so where, as here, the allegedly imper-
missible judicial application of a rule of law involves not the
interpretation of a statute but an act of common law judging.
In the context of common law doctrines (such as the year
and a day rule), there often arises a need to clarify or even
to reevaluate prior opinions as new circumstances and fact
patterns present themselves. Such judicial acts, whether
they be characterized as “making” or “finding” the law, are
a necessary part of the judicial business in States in which
the criminal law retains some of its common law elements.
Strict application of ex post facto principles in that context
would unduly impair the incremental and reasoned develop-
ment of precedent that is the foundation of the common law
system. The common law, in short, presupposes a measure
of evolution that is incompatible with stringent application
of ex post facto principles. It was on account of concerns
such as these that Bouie restricted due process limitations
on the retroactive application of judicial interpretations of
criminal statutes to those that are “unexpected and indefen-
sible by reference to the law which had been expressed prior
to the conduct in issue.” Bouie v. City of Columbia, 378
U. S., at 354 (internal quotation marks omitted).
We believe this limitation adequately serves the common
law context as well. It accords common law courts the sub-
stantial leeway they must enjoy as they engage in the daily
task of formulating and passing upon criminal defenses and
interpreting such doctrines as causation and intent, reevalu-

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ating and refining them as may be necessary to bring the
common law into conformity with logic and common sense.
It also adequately respects the due process concern with fun-
damental fairness and protects against vindictive or arbi-
trary judicial lawmaking by safeguarding defendants against
unjustified and unpredictable breaks with prior law. Ac-
cordingly, we conclude that a judicial alteration of a common
law doctrine of criminal law violates the principle of fair
warning, and hence must not be given retroactive effect, only
where it is “unexpected and indefensible by reference to
the law which had been expressed prior to the conduct
in issue.” Ibid.
Justice Scalia makes much of the fact that, at the time
of the framing of the Constitution, it was widely accepted
that courts could not “change” the law, see post, at 472–473,
477–478 (dissenting opinion), and that (according to Justice
Scalia) there is no doubt that the Ex Post Facto Clause
would have prohibited a legislative decision identical to the
Tennessee court’s decision here, see post, at 469–471, 478.
This latter argument seeks at bottom merely to reopen what
has long been settled by the constitutional text and our own
decisions: that the Ex Post Facto Clause does not apply to
judicial decisionmaking. The former argument is beside the
point. Common law courts at the time of the framing un-
doubtedly believed that they were finding rather than mak-
ing law. But, however one characterizes their actions, the
fact of the matter is that common law courts then, as now,
were deciding cases, and in doing so were fashioning and
refining the law as it then existed in light of reason and expe-
rience. Due process clearly did not prohibit this process of
judicial evolution at the time of the framing, and it does not
do so today.
III
Turning to the particular facts of the instant case, the Ten-
nessee court’s abolition of the year and a day rule was not
unexpected and indefensible. The year and a day rule is
widely viewed as an outdated relic of the common law. Peti-

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tioner does not even so much as hint that good reasons exist
for retaining the rule, and so we need not delve too deeply
into the rule and its history here. Suffice it to say that the
rule is generally believed to date back to the 13th century,
when it served as a statute of limitations governing the time
in which an individual might initiate a private action for mur-
der known as an “appeal of death”; that by the 18th century
the rule had been extended to the law governing public
prosecutions for murder; that the primary and most fre-
quently cited justification for the rule is that 13th century
medical science was incapable of establishing causation be-
yond a reasonable doubt when a great deal of time had
elapsed between the injury to the victim and his death; and
that, as practically every court recently to have considered
the rule has noted, advances in medical and related science
have so undermined the usefulness of the rule as to render
it without question obsolete. See, e. g., People v. Carrillo,
164 Ill. 2d 144, 150, 646 N. E. 2d 582, 585 (1995); Common-
wealth v. Lewis, 381 Mass. 411, 414–415, 409 N. E. 2d 771,
772–773 (1980); People v. Stevenson, 416 Mich. 383, 391–392,
331 N. W. 2d 143, 146 (1982); State v. Hefler, 310 N. C. 135,
138–140, 310 S. E. 2d 310, 313 (1984); see generally Comment,
59 U. Chi. L. Rev. 1337 (1992) (tracing the history of the
rule).
For this reason, the year and a day rule has been legisla-
tively or judicially abolished in the vast majority of jurisdic-
tions recently to have addressed the issue. See 992 S. W. 2d,
at 397, n. 4 (reviewing cases and statutes). Citing Bouie,
petitioner contends that the judicial abolition of the rule in
other jurisdictions is irrelevant to whether he had fair warn-
ing that the rule in Tennessee might similarly be abolished
and, hence, to whether the Tennessee court’s decision was
unexpected and indefensible as applied to him. Brief for
Petitioner 28–30. In discussing the apparent meaning of the
South Carolina statute in Bouie, we noted that “[i]t would be
a rare situation in which the meaning of a statute of another
State sufficed to afford a person ‘fair warning’ that his own

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State’s statute meant something quite different from what
its words said.” 378 U. S., at 359–360. This case, however,
involves not the precise meaning of the words of a particular
statute, but rather the continuing viability of a common law
rule. Common law courts frequently look to the decisions
of other jurisdictions in determining whether to alter or
modify a common law rule in light of changed circumstances,
increased knowledge, and general logic and experience.
Due process, of course, does not require a person to apprise
himself of the common law of all 50 States in order to guaran-
tee that his actions will not subject him to punishment in
light of a developing trend in the law that has not yet made
its way to his State. At the same time, however, the fact
that a vast number of jurisdictions have abolished a rule that
has so clearly outlived its purpose is surely relevant to
whether the abolition of the rule in a particular case can be
said to be unexpected and indefensible by reference to the
law as it then existed.
Finally, and perhaps most importantly, at the time of peti-
tioner’s crime the year and a day rule had only the most
tenuous foothold as part of the criminal law of the State of
Tennessee. The rule did not exist as part of Tennessee’s
statutory criminal code. And while the Supreme Court of
Tennessee concluded that the rule persisted at common law,
it also pointedly observed that the rule had never once
served as a ground of decision in any prosecution for murder
in the State. Indeed, in all the reported Tennessee cases,
the rule has been mentioned only three times, and each time
in dicta.
The first mention of the rule in Tennessee, and the only
mention of it by the Supreme Court of that State, was in
1907 in Percer v. State, 118 Tenn. 765, 103 S. W. 780. In
Percer, the court reversed the defendant’s conviction for sec-
ond degree murder because the defendant was not present
in court when the verdict was announced and because the
proof failed to show that the murder occurred prior to the
finding of the indictment. In discussing the latter ground

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Opinion of the Court
for its decision, the court quoted the rule that “ ‘it is . . . for
the State to show that the crime was committed before the
indictment was found, and, where it fails to do so, a convic-
tion will be reversed.’ ” Id., at 777, 103 S. W., at 783 (quot-
ing 12 Cyclopedia of Law and Procedure 382 (1904)). The
court then also quoted the rule that “ ‘[i]n murder, the death
must be proven to have taken place within a year and a day
from the date of the injury received.’ ” 118 Tenn., at 777,
103 S. W., at 783 (quoting F. Wharton, Law of Homicide § 18
(3d ed. 1907)).
While petitioner relies on this case for the proposition that
the year and a day rule was firmly entrenched in the common
law of Tennessee, we agree with the Supreme Court of Ten-
nessee that the case cannot establish nearly so much. After
reciting the rules just mentioned, the court in Percer went
on to point out that the indictment was found on July 6, 1906;
that it charged that the murder was committed sometime in
May 1906; and that the only evidence of when the victim died
was testimony from a witness stating that he thought the
death occurred sometime in July, but specifying neither a
date nor a year. From this, the court concluded that it did
“not affirmatively appear” from the evidence “whether the
death occurred before or after the finding of the indictment.”
118 Tenn., at 777, 103 S. W., at 783. The court made no
mention of the year and a day rule anywhere in its legal
analysis or, for that matter, anywhere else in its opinion.
Thus, whatever the import of the court’s earlier quoting of
the rule, it is clear that the rule did not serve as the basis
for the Percer court’s decision.
The next two references to the rule both were by the Ten-
nessee Court of Criminal Appeals in cases in which the date
of the victim’s death was not even in issue. Sixty-seven
years after Percer, the court in Cole v. State, 512 S. W. 2d
598 (Tenn. Crim. App. 1974), noted the existence of the rule
in rejecting the defendants’ contentions that insufficient evi-
dence existed to support the jury’s conclusion that they had
caused the victim’s death in a drag-racing crash. Id., at 601.

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466 ROGERS v. TENNESSEE
Opinion of the Court
Twenty-one years after that, in State v. Ruane, 912 S. W. 2d
766 (Tenn. Crim. App. 1995), a defendant referred to the rule
in arguing that the operative cause of his victim’s death was
removal of life support rather than a gunshot wound at the
defendant’s hand. The victim had died within 10 days of
receiving the wound. The Court of Criminal Appeals re-
jected the defendant’s argument, concluding, as it had in this
case, that the year and a day rule had been abolished by the
1989 Act. It went on to hold that the evidence of causation
was sufficient to support the conviction. Id., at 773–777.
Ruane, of course, was decided after petitioner committed his
crime, and it concluded that the year and a day rule no longer
existed in Tennessee for a reason that the high court of that
State ultimately rejected. But we note the case nonetheless
to complete our account of the few appearances of the com-
mon law rule in the decisions of the Tennessee courts.
These cases hardly suggest that the Tennessee court’s de-
cision was “unexpected and indefensible” such that it of-
fended the due process principle of fair warning articulated
in Bouie and its progeny. This is so despite the fact that,
as Justice Scalia correctly points out, the court viewed the
year and a day rule as a “substantive principle” of the com-
mon law of Tennessee. See post, at 480. As such, however,
it was a principle in name only, having never once been
enforced in the State. The Supreme Court of Tennessee
also emphasized this fact in its opinion, see 992 S. W. 2d, at
402, and rightly so, for it is surely relevant to whether the
court’s abolition of the rule in petitioner’s case violated due
process limitations on retroactive judicial decisionmaking.
And while we readily agree with Justice Scalia that funda-
mental due process prohibits the punishment of conduct that
cannot fairly be said to have been criminal at the time the
conduct occurred, see, e. g., post, at 470, 478, 480, nothing
suggests that is what took place here.
There is, in short, nothing to indicate that the Tennessee
court’s abolition of the rule in petitioner’s case represented

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467 Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
an exercise of the sort of unfair and arbitrary judicial action
against which the Due Process Clause aims to protect. Far
from a marked and unpredictable departure from prior prec-
edent, the court’s decision was a routine exercise of common
law decisionmaking in which the court brought the law into
conformity with reason and common sense. It did so by lay-
ing to rest an archaic and outdated rule that had never been
relied upon as a ground of decision in any reported Tennes-
see case.
The judgment of the Supreme Court of Tennessee is
accordingly affirmed.
It is so ordered.
Justice Stevens, dissenting.
While I have joined Justice Scalia’s entire dissent,
I must add this brief caveat. The perception that common-
law judges had no power to change the law was unquestion-
ably an important aspect of our judicial heritage in the 17th
century but, as he has explained, that perception has played
a role of diminishing importance in later years. Whether
the most significant changes in that perception occurred be-
fore the end of the 18th century or early in the 19th century
is, in my judgment, a tangential question that need not be
resolved in order to decide this case correctly. For me, far
more important than the historical issue is the fact that the
majority has undervalued the threat to liberty that is posed
whenever the criminal law is changed retroactively.
Justice Scalia, with whom Justice Stevens and Jus-
tice Thomas join, and with whom Justice Breyer joins as
to Part II, dissenting.
The Court today approves the conviction of a man for a
murder that was not murder (but only manslaughter) when
the offense was committed. It thus violates a principle—
encapsulated in the maxim nulla poena sine lege—which
“dates from the ancient Greeks” and has been described as

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468 ROGERS v. TENNESSEE
Scalia, J., dissenting
one of the most “widely held value-judgment[s] in the entire
history of human thought.” J. Hall, General Principles of
Criminal Law 59 (2d ed. 1960). Today’s opinion produces,
moreover, a curious constitution that only a judge could love.
One in which (by virtue of the Ex Post Facto Clause) the
elected representatives of all the people cannot retroactively
make murder what was not murder when the act was com-
mitted; but in which unelected judges can do precisely that.
One in which the predictability of parliamentary lawmaking
cannot validate the retroactive creation of crimes, but the
predictability of judicial lawmaking can do so. I do not be-
lieve this is the system that the Framers envisioned—or, for
that matter, that any reasonable person would imagine.
I
A
To begin with, let us be clear that the law here was altered
after the fact. Petitioner, whatever else he was guilty of,
was innocent of murder under the law as it stood at the time
of the stabbing, because the victim did not die until after a
year and a day had passed. The requisite condition subse-
quent of the murder victim’s death within a year and a day
is no different from the requisite condition subsequent of the
rape victim’s raising a “hue and cry” which we held could
not retroactively be eliminated in Carmell v. Texas, 529 U. S.
513 (2000). Here, as there, it operates to bar conviction.
Indeed, if the present condition differs at all from the one
involved in Carmell it is in the fact that it does not merely
pertain to the “quantum of evidence” necessary to corrobo-
rate a charge, id., at 530, but is an actual element of the
crime—a “substantive principle of law,” 992 S. W. 2d 393, 399
(Tenn. 1999), the failure to establish which “entirely pre-
cludes a murder prosecution,” id., at 400. Though the Court
spends some time questioning whether the year-and-a-day
rule was ever truly established in Tennessee, see ante, at

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469 Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
464–466, the Supreme Court of Tennessee said it was, see
992 S. W. 2d, at 396, 400, and this reasonable reading of state
law by the State’s highest court is binding upon us.
Petitioner’s claim is that his conviction violated the Due
Process Clause of the Fourteenth Amendment, insofar as
that Clause contains the principle applied against the legisla-
ture by the Ex Post Facto Clause of Article I. We first dis-
cussed the relationship between these two Clauses in Bouie
v. City of Columbia, 378 U. S. 347 (1964). There, we consid-
ered Justice Chase to have spoken for the Court in Calder v.
Bull, 3 Dall. 386, 390 (1798), when he defined an ex post facto
law as, inter alia, one that “aggravates a crime, or makes
it greater than it was, when committed.” 378 U. S., at 353
(emphasis deleted). We concluded that, “[i]f a state legisla-
ture is barred by the Ex Post Facto Clause from passing
such a law, it must follow that a State Supreme Court is
barred by the Due Process Clause from achieving precisely
the same result by judicial construction.” Id., at 353–354.
The Court seeks to avoid the obvious import of this language
by characterizing it as mere dicta. See ante, at 459. Only
a concept of dictum that includes the very reasoning of the
opinion could support this characterization. The ratio de-
cidendi of Bouie was that the principle applied to the legisla-
ture though the Ex Post Facto Clause was contained in the
Due Process Clause insofar as judicial action is concerned.
I cannot understand why the Court derives such comfort
from the fact that later opinions applying Bouie have re-
ferred to the Due Process Clause rather than the Ex Post
Facto Clause, see ante, at 459–460; that is entirely in accord
with the rationale of the case, which I follow and which the
Court discards.
The Court attempts to cabin Bouie by reading it to pro-
hibit only “ ‘unexpected and indefensible’ ” judicial law revi-
sion, and to permit retroactive judicial changes so long as
the defendant has had “fair warning” that the changes might
occur. Ante, at 462. This reading seems plausible because

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470 ROGERS v. TENNESSEE
Scalia, J., dissenting
Bouie does indeed use those quoted terms; but they have
been wrenched entirely out of context. The “fair warning”
to which Bouie and subsequent cases referred was not “fair
warning that the law might be changed,” but fair warning of
what constituted the crime at the time of the offense. And
Bouie did not express disapproval of “unexpected and inde-
fensible changes in the law” (and thus implicitly approve “ex-
pected or defensible changes”). It expressed disapproval of
“judicial construction of a criminal statute” that is “unex-
pected and indefensible by reference to the law which had
been expressed prior to the conduct in issue.” 378 U. S., at
354 (emphasis added; internal quotation marks omitted). It
thus implicitly approved only a judicial construction that was
an expected or defensible application of prior cases inter-
preting the statute. Extending this principle from statu-
tory crimes to common-law crimes would result in the ap-
proval of retroactive holdings that accord with prior cases
expounding the common law, and the disapproval of retroac-
tive holdings that clearly depart from prior cases expounding
the common law. According to Bouie, not just “unexpected
and indefensible” retroactive changes in the common law of
crimes are bad, but all retroactive changes.
Bouie rested squarely upon “[t]he fundamental principle
that ‘the required criminal law must have existed when the
conduct in issue occurred,’ ” ibid. (Nulla poena sine lege.)
Proceeding from that principle, Bouie said that “a State Su-
preme Court is barred by the Due Process Clause from
achieving precisely the same result [prohibited by the Ex
Post Facto Clause] by judicial construction.” Id., at 353–
354. There is no doubt that “fair warning” of the legisla-
ture’s intent to change the law does not insulate retroactive
legislative criminalization. Such a statute violates the Ex
Post Facto Clause, no matter that, at the time the offense
was committed, the bill enacting the change was pending and
assured of passage—or indeed, had already been passed but
not yet signed by the President whose administration had

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471 Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
proposed it. It follows from the analysis of Bouie that “fair
warning” of impending change cannot insulate retroactive
judicial criminalization either.
Nor is there any reason in the nature of things why it
should. According to the Court, the exception is neces-
sary because prohibiting retroactive judicial criminalization
would “place an unworkable and unacceptable restraint on
normal judicial processes,” would be “incompatible with the
resolution of uncertainty that marks any evolving legal sys-
tem,” and would “unduly impair the incremental and rea-
soned development of precedent that is the foundation of the
common law system.” Ante, at 461. That assessment ig-
nores the crucial difference between simply applying a law
to a new set of circumstances and changing the law that has
previously been applied to the very circumstances before the
court. Many criminal cases present some factual nuance
that arguably distinguishes them from cases that have come
before; a court applying the penal statute to the new fact
pattern does not purport to change the law. That, however,
is not the action before us here, but rather, a square, head-on
overruling of prior law—or, more accurately, something
even more extreme than that: a judicial opinion acknowledg-
ing that under prior law, for reasons that used to be valid,
the accused could not be convicted, but decreeing that, be-
cause of changed circumstances, “we hereby abolish the com-
mon law rule,” 992 S. W. 2d, at 401, and upholding the convic-
tion by applying the new rule to conduct that occurred
before the change in law was announced. Even in civil
cases, and even in modern times, such retroactive revision of
a concededly valid legal rule is extremely rare. With regard
to criminal cases, I have no hesitation in affirming that it
was unheard of at the time the original Due Process Clause
was adopted. As I discuss in detail in the following section,
proceeding in that fashion would have been regarded as con-
trary to the judicial traditions embraced within the concept
of due process of law.

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472 ROGERS v. TENNESSEE
Scalia, J., dissenting
B
The Court’s opinion considers the judgment at issue here
“a routine exercise of common law decisionmaking,” whereby
the Tennessee court “brought the law into conformity with
reason and common sense,” by “laying to rest an archaic and
outdated rule.” Ante, at 467. This is an accurate enough
description of what modern “common law decisionmaking”
consists of—but it is not an accurate description of the theo-
retical model of common-law decisionmaking accepted by
those who adopted the Due Process Clause. At the time of
the framing, common-law jurists believed (in the words of
Sir Francis Bacon) that the judge’s “office is jus dicere, and
not jus dare; to interpret law, and not to make law, or give
law.” Bacon, Essays, Civil and Moral, in 3 Harvard Classics
130 (C. Eliot ed. 1909) (1625). Or as described by Black-
stone, whose Commentaries were widely read and “accepted
[by the framing generation] as the most satisfactory exposi-
tion of the common law of England,” see Schick v. United
States, 195 U. S. 65, 69 (1904), “judicial decisions are the prin-
cipal and most authoritative evidence, that can be given, of
the existence of such a custom as shall form a part of the
common law,” 1 W. Blackstone, Commentaries *69 (herein-
after Blackstone) (emphasis added).
Blackstone acknowledged that the courts’ exposition of
what the law was could change. Stare decisis, he said, “ad-
mits of exception, where the former determination is most
evidently contrary to reason . . . .” Ibid. But “in such
cases the subsequent judges do not pretend to make a new
law, but to vindicate the old one from misrepresentation.”
Id., at *70. To fit within this category of bad law, a law
must be “manifestly absurd or unjust.” It would not suffice,
he said, that “the particular reason [for the law] can at this
distance of time [not be] precisely assigned.” “[F]or though
[its] reason be not obvious at first view, yet we owe such a
deference to former times as not to suppose they acted

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473 Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
wholly without consideration.” Ibid.1 By way of example,
Blackstone pointed to the seemingly unreasonable rule that
one cannot inherit the estate of one’s half brother. Though
he accepted that the feudal reason behind the law was
no longer obvious, he wrote “yet it is not in [a common
law judge’s] power to alter it.” Id., at *70–*71 (emphasis
added).2 Moreover, “the unreasonableness of a custom in
modern circumstances will not affect its validity if the Court
is satisfied of a reasonable origin.” Allen 140–141. “A cus-
tome once reasonable and tolerable, if after it become griev-
ous, and not answerable to the reason, whereupon it was
grounded, yet is to be . . . taken away by act of parliament.”
2 E. Coke, Institutes of the Laws of England *664 (herein-
after Institutes); see also id., at *97 (“No law, or custome of
England can be taken away, abrogated, or adnulled, but by
authority of parliament”); Of Oaths before an Ecclesiastical
Judge Ex Officio, 12 Co. Rep. *26, *29 (1655) (“[T]he law and
custom of England is the inheritance of the subject, which
he cannot be deprived of without his assent in Parliament”).
There are, of course, stray statements and doctrines found
in the historical record that—read out of context—could be
thought to support the modern-day proposition that the com-
1 Inquiring into a law’s original reasonableness was perhaps tantamount
to questioning whether it existed at all. “In holding the origin to have
been unreasonable, the Court nearly always doubts or denies the actual
origin and continuance of the custom in fact.” C. Allen, Law in the Mak-
ing 140 (3d ed. 1939) (hereinafter Allen).
2 The near-dispositive strength Blackstone accorded stare decisis was
not some mere personal predilection. Chancellor Kent was of the same
view: “If a decision has been made upon solemn argument and mature
deliberation, the presumption is in favor of its correctness; and the commu-
nity have a right to regard it as a just declaration or exposition of the law,
and to regulate their actions and contracts by it.” 1 J. Kent, Commentar-
ies *475–*476 (emphasis added). See also Hamilton’s statement in The
Federalist: “To avoid an arbitrary discretion in the courts, it is indispensa-
ble that they should be bound down by strict rules and precedents which
serve to define and point out their duty in every particular case that comes
before them.” The Federalist No. 78, p. 471 (C. Rossiter ed. 1961).

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474 ROGERS v. TENNESSEE
Scalia, J., dissenting
mon law was always meant to evolve. Take, for instance,
Lord Coke’s statement in the Institutes that “the reason of
the law ceasing, the law itself ceases.” This maxim is often
cited by modern devotees of a turbulently changing common
law—often in its Latin form (cessante ratione legis, cessat
ipse lex) to create the impression of great venerability. In
its original context, however, it had nothing to do with the
power of common-law courts to change the law. At the
point at which it appears in the Institutes, Coke was discuss-
ing the exception granted abbots and mayors from the obli-
gation of military service to the King which attached to land
ownership. Such service would be impracticable for a man
of the cloth or a mayor. But, said Coke, “if they convey over
the lands to any naturall man and his heires,” the immunity
“by the conveyance over ceaseth.” 1 Institutes *70. In
other words, the service which attached to the land would
apply to any subsequent owner not cloaked in a similar im-
munity. It was in describing this change that Coke em-
ployed the Latin maxim cessante ratione legis, cessat ipse
lex. It had to do, not with a changing of the common-law
rule, but with a change of circumstances that rendered the
common-law rule no longer applicable to the case.
The same is true of the similar quotation from Coke:
“[R]atio legis est anima legis, et mutata legis ratione, mu-
tatur et lex”—reason is the soul of the law; the reason of the
law being changed, the law is also changed. This is taken
from Coke’s report of Milborn’s Case, 7 Co. Rep. 6b, 7a
(1587), a suit involving a town’s responsibility for a murder
committed within its precincts. The common-law rule had
been that a town could be amerced for failure to apprehend
a murderer who committed his crime on its streets during
the day, but not a murderer who struck after nightfall, when
its citizens were presumably asleep. Parliament, however,
enacted a statute requiring towns to close their gates at
night, and the court reasoned that thereafter a town that left
its gates open could be amerced for the nocturnal homicide

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Scalia, J., dissenting
as well, since the town’s violation of the Act was negligence
that facilitated the escape. This perhaps partakes more of
a new right of action implied from legislation than of any
common-law rule. But to the extent it involved the common
law, it assuredly did not change the prior rule: A town not
in violation of the statute would continue to be immune.
Milborn’s Case simply held that the rule would not be ex-
tended to towns that wrongfully failed to close their gates—
which involves no overruling, but nothing more than normal,
case-by-case common-law adjudication.
It is true that framing-era judges in this country consid-
ered themselves authorized to reject English common-law
precedent they found “barbarous” and “ignorant,” see 1 Z.
Swift, A System of the Laws of the State of Connecticut 46
(1795) (hereinafter Swift); N. Chipman, A Dissertation on
the Act Adopting the Common and Statute Laws of England,
in Reports and Dissertations 117, 128 (1793) (hereinafter
Chipman). That, however, was not an assertion of judges’
power to change the common law. For, as Blackstone wrote,
the common law was a law for England, and did not automat-
ically transfer to the American Colonies; rather, it had to be
adopted. See 1 Blackstone *107–*108 (observing that “the
common law of England, as such, has no allowance or author-
ity” in “[o]ur American plantations”); see also 1 Swift 46
(“The English common law is not in itself binding in this
state”); id., at 44–45 (“The English common law has never
been considered to be more obligatory here, than the Roman
law has been in England”). In short, the colonial courts felt
themselves perfectly free to pick and choose which parts of
the English common law they would adopt.3 As stated by
3 In fact, however, “most of the basic departures [from English common
law] were accomplished not by judicial decision but by local statute, so
that by the time of the American Revolution one hears less and less about
the unsuitability of common law principles to the American environment.”
1 M. Horwitz, Transformation of American Law 1780–1860, p. 5 (1977)
(hereinafter Horwitz).

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476 ROGERS v. TENNESSEE
Scalia, J., dissenting
Chipman 128: “If no reason can be assigned, in support of
rules, or precedents, not already adopted in practice, to
adopt such rules, is certainly contrary to the principles of
our government.” (Emphasis added.) This discretion not
to adopt would not presuppose, or even support, the power
of colonial courts subsequently to change the accumulated
colonial common law. The absence of belief in that power is
demonstrated by the following passage from 1 Horwitz 5:
“Massachusetts Chief Justice Hutchison could declare in 1767
that ‘laws should be established, else Judges and Juries must
go according to their Reason, that is, their Will.’ It was also
imperative ‘that the Judge should never be the Legislator:
Because, then the Will of the Judge would be the Law: and
this tends to a State of Slavery.’ ” Or, as Judge Swift put
it, courts “ought never to be allowed to depart from the well
known boundaries of express law, into the wide fields of dis-
cretion.” 2 Swift 366.
Nor is the framing era’s acceptance of common-law crimes
support for the proposition that the Framers accepted an
evolving common law. The acknowledgment of a new crime,
not thitherto rejected by judicial decision, was not a chang-
ing of the common law, but an application of it. At the time
of the framing, common-law crimes were considered unobjec-
tionable, for “ ‘a law founded on the law of nature may be
retrospective, because it always existed,’ ” 1 Horwitz 7, quot-
ing Blackwell v. Wilkinson, Jefferson’s Rep. 73, 77 (Va. 1768)
(argument of then-Attorney General John Randolph). Of
course, the notion of a common-law crime is utterly anath-
ema today, which leads one to wonder why that is so. The
obvious answer is that we now agree with the perceptive
chief justice of Connecticut, who wrote in 1796 that
common-law crimes “partak[e] of the odious nature of an
ex post facto law.” 2 Swift 365–366. But, as Horwitz
makes clear, a widespread sharing of Swift’s “preoccupation
with the unfairness of administering a system of judge-made
criminal law was a distinctly post-revolutionary phenome-

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non, reflecting a profound change in sensibility. For the in-
articulate premise that lay behind Swift’s warnings against
the danger of judicial discretion was a growing percep-
tion that judges no longer merely discovered law; they also
made it.” 1 Horwitz 14–15 (emphases added). In other
words, the connection between ex post facto lawmaking and
common-law judging would not have become widely appar-
ent until common-law judging became lawmaking, not (as it
had been) law declaring. This did not happen, see id., at
1–4, until the 19th century, after the framing.
What occurred in the present case, then, is precisely what
Blackstone said—and the Framers believed—would not suf-
fice. The Tennessee Supreme Court made no pretense that
the year-and-a-day rule was “bad” law from the outset;
rather, it asserted, the need for the rule, as a means of assur-
ing causality of the death, had disappeared with time.
Blackstone—and the Framers who were formed by Black-
stone—would clearly have regarded that change in law as a
matter for the legislature, beyond the power of the court.
It may well be that some common-law decisions of the era in
fact changed the law while purporting not to. But that is
beside the point. What is important here is that it was an
undoubted point of principle, at the time the Due Process
Clause was adopted, that courts could not “change” the law.
That explains why the Constitution restricted only the legis-
lature from enacting ex post facto laws. Under accepted
norms of judicial process, an ex post facto law (in the sense
of a judicial holding, not that a prior decision was erroneous,
but that the prior valid law is hereby retroactively changed)
was simply not an option for the courts. This attitude sub-
sisted, I may note, well beyond the founding era, and beyond
the time when due process guarantees were extended
against the States by the Fourteenth Amendment. In an
1886 admiralty case, for example, this Court said the follow-
ing: “The rights of persons in this particular under the mari-
time law of this country are not different from those under

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478 ROGERS v. TENNESSEE
Scalia, J., dissenting
the common law, and as it is the duty of courts to declare
the law, not to make it, we cannot change this rule.” The
Harrisburg, 119 U. S. 199, 213–214 (1886), overruled by
Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970).
It is not a matter, therefore, of “[e]xtending the [Ex Post
Facto] Clause to courts through the rubric of due process,”
and thereby “circumvent[ing] the clear constitutional text,”
ante, at 460. It is simply a matter of determining what due
judicial process consists of—and it does not consist of ret-
roactive creation of crimes. The Ex Post Facto Clause is
relevant only because it demonstrates beyond doubt that,
however much the acknowledged and accepted role of
common-law courts could evolve (as it has) in other respects,
retroactive revision of the criminal law was regarded as so
fundamentally unfair that an alteration of the judicial role
which permits that will be a denial of due process. Madison
wrote that “ex-post-facto laws . . . are contrary to the first
principles of the social compact, and to every principle of
social legislation.” The Federalist No. 44, p. 282 (C. Rossiter
ed. 1961). I find it impossible to believe, as the Court does,
that this strong sentiment attached only to retroactive laws
passed by the legislature, and would not apply equally (or
indeed with even greater force) to a court’s production of the
same result through disregard of the traditional limits upon
judicial power. Insofar as the “first principles of the social
compact” are concerned, what possible difference does it
make that “[a] court’s opportunity for discrimination” by ret-
roactively changing a law “is more limited than a legisla-
ture’s, in that it can only act in construing existing law in
actual litigation”? Ante, at 460–461 (internal quotation
marks and citation omitted). The injustice to the individu-
als affected is no less.
II
Even if I agreed with the Court that the Due Process
Clause is violated only when there is lack of “fair warning”
of the impending retroactive change, I would not find such
fair warning here. It is not clear to me, in fact, what the

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479 Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
Court believes the fair warning consisted of. Was it the
mere fact that “[t]he year and a day rule is widely viewed as
an outdated relic of the common law”? Ante, at 462. So
are many of the elements of common-law crimes, such as
“breaking the close” as an element of burglary, or “asporta-
tion” as an element of larceny. See W. LaFave & A. Scott,
Criminal Law 631–633, 708–710 (1972). Are all of these
“outdated relics” subject to retroactive judicial rescission?
Or perhaps the fair warning consisted of the fact that “the
year and a day rule has been legislatively or judicially abol-
ished in the vast majority of jurisdictions recently to have
addressed the issue.” Ante, at 463. But why not count in
petitioner’s favor (as giving him no reason to expect a change
in law) those even more numerous jurisdictions that have
chosen not “recently to have addressed the issue”? And
why not also count in petitioner’s favor (rather than against
him) those jurisdictions that have abolished the rule legisla-
tively, and those jurisdictions that have abolished it through
prospective rather than retroactive judicial rulings (together,
a large majority of the abolitions, see 992 S. W. 2d, at 397,
n. 4, 402 (listing statutes and cases))? That is to say, even
if it was predictable that the rule would be changed, it was
not predictable that it would be changed retroactively,
rather than in the prospective manner to which legislatures
are restricted by the Ex Post Facto Clause, or in the pro-
spective manner that most other courts have employed.
In any event, as the Court itself acknowledges, “[d]ue
process . . . does not require a person to apprise himself of
the common law of all 50 States in order to guarantee that
his actions will not subject him to punishment in light of a
developing trend in the law that has not yet made its way to
his State.” Ante, at 464. The Court tries to counter this
self-evident point with the statement that “[a]t the same
time, however, the fact that a vast number of jurisdictions
have abolished a rule that has so clearly outlived its purpose
is surely relevant to whether the abolition of the rule in a
particular case can be said to be unexpected and indefensible

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480 ROGERS v. TENNESSEE
Scalia, J., dissenting
by reference to the law as it then existed,” ibid. This retort
rests upon the fallacy that I discussed earlier: that “expected
or defensible” “abolition” of prior law was approved by
Bouie. It was not—and according such conclusive effect to
the “defensibility” (by which I presume the Court means the
“reasonableness”) of the change in law will validate the ret-
roactive creation of many new crimes.
Finally, the Court seeks to establish fair warning by dis-
cussing at great length, ante, at 464–466, how unclear it was
that the year-and-a-day rule was ever the law in Tennessee.
As I have already observed, the Supreme Court of Tennes-
see is the authoritative expositor of Tennessee law, and has
said categorically that the year-and-a-day rule was the law.
Does the Court mean to establish the principle that fair
warning of impending change exists—or perhaps fair warn-
ing can be dispensed with—when the prior law is not crystal
clear? Yet another boon for retroactively created crimes.
I reiterate that the only “fair warning” discussed in our
precedents, and the only “fair warning” relevant to the issue
before us here, is fair warning of what the law is. That
warning, unlike the new one that today’s opinion invents,
goes well beyond merely “safeguarding defendants against
unjustified and unpredictable breaks with prior law,” ante,
at 462 (emphasis added). It safeguards them against
changes in the law after the fact. But even accepting the
Court’s novel substitute, the opinion’s conclusion that this
watered-down standard has been met seems to me to pro-
ceed on the principle that a large number of almost-valid
arguments makes a solid case. As far as I can tell, peti-
tioner had nothing that could fairly be called a “warning”
that the Supreme Court of Tennessee would retroactively
eliminate one of the elements of the crime of murder.
* * *
To decide this case, we need only conclude that due process
prevents a court from (1) acknowledging the validity, when

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481 Cite as: 532 U. S. 451 (2001)
Breyer, J., dissenting
they were rendered, of prior decisions establishing a particu-
lar element of a crime; (2) changing the prior law so as to
eliminate that element; and (3) applying that change to con-
duct that occurred under the prior regime. A court would
remain free to apply common-law criminal rules to new fact
patterns, see ante, at 461–462, so long as that application is
consistent with a fair reading of prior cases. It would re-
main free to conclude that a prior decision or series of deci-
sions establishing a particular element of a crime was in
error, and to apply that conclusion retroactively (so long as
the “fair notice” requirement of Bouie is satisfied). It would
even remain free, insofar as the ex post facto element of the
Due Process Clause is concerned, to “reevaluat[e] and re-
fin[e]” the elements of common-law crimes to its heart’s con-
tent, so long as it does so prospectively. (The majority of
state courts that have abolished the year-and-a-day rule
have done so in this fashion.) And, of course (as Blackstone
and the Framers envisioned), legislatures would be free to
eliminate outmoded elements of common-law crimes for the
future by law. But what a court cannot do, consistent with
due process, is what the Tennessee Supreme Court did here:
avowedly change (to the defendant’s disadvantage) the crimi-
nal law governing past acts.
For these reasons, I would reverse the judgment of the
Supreme Court of Tennessee.
Justice Breyer, dissenting.
I agree with the Court’s basic approach. Justice Cardozo
pointed out that retroactivity should be determined “not
by metaphysical conceptions of the nature of judge-made
law, . . . but by considerations of convenience, of utility, and
of the deepest sentiments of justice.” The Nature of the
Judicial Process 148–149 (1921). Similarly, the Due Process
Clause asks us to consider the basic fairness or unfairness of
retroactive application of the Tennessee court’s change in the
law. That Clause provides protection against after-the-fact

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482 ROGERS v. TENNESSEE
Breyer, J., dissenting
changes in criminal law that deprive defendants of fair warn-
ing of the nature and consequences of their actions. It does
not enshrine Blackstone’s “ancient dogma that the law de-
clared by . . . courts had a Platonic or ideal existence before
the act of declaration,” Great Northern R. Co. v. Sunburst
Oil & Refining Co., 287 U. S. 358, 365 (1932) (Cardozo, J.).
Cf. ante, at 473–474 (Scalia, J., dissenting).
I also agree with the Court that, in applying the Due Proc-
ess Clause, we must ask whether the judicial ruling in ques-
tion was “unexpected and indefensible by reference to the
law which had been expressed prior to the conduct in issue.”
Bouie v. City of Columbia, 378 U. S. 347, 354 (1964) (quoting
J. Hall, General Principles of Criminal Law 61 (2d ed. 1960)
(internal quotation marks omitted)).
I cannot agree, however, with the majority’s application of
that due process principle to this case. As Justice Scalia
well explains, Rogers did not have fair warning that the
Tennessee courts would abolish the year and a day rule or
that they would retroactively apply the new law to the cir-
cumstances of his case, thereby upgrading the crime those
circumstances revealed from attempted murder to murder.
I therefore join Part II of Justice Scalia’s dissenting
opinion.