---

Thomas, J., concurring

SUPREME COURT OF THE UNITED STATES

---

No. 97—42

---

EASTERN ENTERPRISES, PETITIONER v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

[June 25, 1998]

Justice Thomas, concurring.

Justice O’Connor’s opinion correctly concludes that the Coal Act’s imposition of retroactive liability on petitioner violates the Takings Clause. I write separately to emphasize that the Ex Post Facto Clause of the Constitution, Art. I., §9, cl. 3, even more clearly reflects the principle that “[r]etrospective laws are, indeed, generally unjust.” 2 J. Story, Commentaries on the Constitution §1398, p. 272 (5th ed. 1981). Since Calder v. Bull, 3 Dall. 386 (1798), however, this Court has considered the Ex Post Facto Clause to apply only in the criminal context. I have never been convinced of the soundness of this limitation, which in Calder was principally justified because a contrary interpretation would render the Takings Clause unnecessary. See id., at 394 (opinion of Chase, J.). In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause. Today’s case, however, does present an unconstitutional taking, and I join Justice O’Connor’s well-reasoned opinion in full.