A majority of the Supreme Court consistently has held that the Constitution is silent on retroactivity since the Linkletter Court 27 years ago constructed a far-reaching retroactivity doctrine compatible with practical concerns. During this period, the Supreme Court's retroactivity jurisprudence had been unsettled and subject to change by the manipulation of the malleable policy factors that serve as its foundation. In its Smith and Beam decisions, members of the Court appear ready to forego the old foundation in favor of a new and clearer vision of retroactivity as derived from and defined by a proper understanding of Article III judicial power which places retroactivity analysis squarely within the Constitution. Justice Scalia's invocation of the common law at the time of the origin of the Constitution is new to retroactivity but a logical extension of his separation of powers analysis. If the Court fails to remain on its side of the judicial power boundary, then it is necessarily encroaching on the legislative power. In this way, it is possible for retroactivity to be logically framed as a separation of powers question, and, placed in this context, Justice Scalia's separation of powers analyses provide the applicable rules. 152 footnotes