laws. The purpose is to prevent ``unfair and arbitrary'' actions, and to guarantee that the law gives due notice--fair warning--of what is forbidden. Scalia, joined in dissent by Stevens and Thomas, and in part by Breyer, refutes the majority's contention that Rogers had some sort of fair warning, because by 1994 the year-and-a-day rule was ``widely viewed as an outdated relic.'' Are, Scalia wonders, people supposed to be aware of what is ``widely viewed'' judicially in 50 states? Tennessee's Supreme Court, Scalia said, forthrightly changed, to the defendant's disadvantage, the criminal law governing a past act. Nothing the majority says about ``incremental and reasoned development'' of the common law can, in Scalia's view, trump due respect for the intentions, as far as they can be discerned, of the authors of the Constitution and its amendments: ``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.'' Tartly noting that Tennessee's Legislature could not have changed the law and retroactively applied it to Rogers, Scalia said the court's decision ``produces'' a ``curious constitution that only a judge could love'': ``One in which (by virtue of the (BEG ITAL)Ex Post Facto (END ITAL)Clause) the elected representatives of all the people cannot retroactively make murder what was not murder when the act was committed; but in which unelected judges can do precisely that.'' Scalia's jurisprudence of strict construction--he calls it ``originalism''--was, in this instance, a bit more severe even than Chief Justice Rehnquist's. It is slightly more rigorous than that of most of the judges Bush has nominated or will nominate. Yet his reasoning regarding the Tennessee case is neither recondite nor radical, and the most liberal justice (Stevens) and another liberal (Breyer) endorsed it, as has The Washington Post. Consider all this when critics suggest that because Bush considers Scalia an exemplary justice, Bush's nominees are presumptively unacceptable.