March 15th, 2008

Ex Post Facto Law

The Constitution, in two distinct clauses, prevents the government—both federal and state—from passing retroactive law. Called “ex post facto law”, the term is Latin for “from something done afterward”, or more simply, law dealing with something “after the fact”.

In Article 1 Section 9, the Constitution states that “No Bill of Attainder or ex post facto Law shall be passed”. Likewise, Section 10 says that “No State shall … pass any … ex post facto Law…”. These clauses prevent the government from passing a retroactive law which would change or remove a previous punishment (or lack thereof) for any given action.

In light of this fact, one would think that the discussion for any retroactive laws would be non-existent in Congress. As one might presume given the lack of Constitutional obedience among most politicians, however, this is not the case.

The latest hot topic, and one that President Bush has been fervently advocating, is retroactive immunity for certain telecom companies that illegally divulged information regarding their networks and customers to intelligence agencies. While the House met secretly (for the first time in 25 years) and narrowly rejected the immunity, President Bush has threatened to veto the bill and continue to push for immunity.

Absent from the debate, as usual, was the declaration of Constitutional authority to even discuss this matter.

Retroactive immunity would not be necessary if the actions of these companies were legal to begin with. Despite how “patently unfair” President Bush thinks it is, the fact that these companies circumvented established laws and policies to give the government whatever they wanted is patently illegal.
As one commentator (warning: minor foul language) notes, any person in Congress voting in favor of immunity is breaking their oath of office, and therefore worthy of arrest:

The moment that Congress passes an ex post facto law, every Member and Senator voting AYE has committed a felony. Felony forfeits legislative immunity, as in the Constitutional provision, “… They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest. …”

No better case for crimes against the Constitution can be given than this. Congress, seemingly ignorant of the document they have sworn to support and defend, goes about discussing and passing whatever law they choose. In this manner, the Constitution hangs by a thread; the way to save it is to abide by its principles and implement its mandates.

It appears, in light of such disregard for the rule of law, that most of Congress should be impeached, tried for crimes against the Constitution, and left exposed to the consequences of their actions—with no ex post facto law to save them.

10 Responses to “Ex Post Facto Law”

  1. Janet
    March 15, 2008 at 1:39 pm #

    Another excellent post. The problem is that U.S. citizens, the president and many of the legislator do not know what is in the Constitution or understand that it superseeds all other law.

  2. Daniel
    March 16, 2008 at 3:18 pm #

    Am I reading this right?

    Bush pushes for retroactive immunity, Congress (quite rightly) knocks it back, and you say Congress should be impeached and arrested?

    Don’t you mean ‘the president’, since he’s the one arguing for retroactive immunity? It would seem that Congress is doing the right thing here. (Just barely.)

  3. Connor
    March 16, 2008 at 5:25 pm #

    Don’t you mean ‘the president’, since he’s the one arguing for retroactive immunity? It would seem that Congress is doing the right thing here. (Just barely.)

    Presidents are given the power to pardon people for certain actions. Companies do not apply here, but at least there is some semblance of similarity of powers regarding what the President is pushing.

    Congress, however, is specifically prohibited from passing retroactive laws. Those that voted against such a measure are in a better position, to be sure, but the fact that they’re discussing it at all (with nobody, as far as my digging has turned up, stating the un-Constitutionality of the measure) is disappointing.

    The President cannot legislatively grant the immunity. He could try one of his many signing statements—his signature (pun intended) approach at creating his own law—but he wouldn’t get away with something like that. Instead, he correctly turns to Congress, advocating that this body approve the retroactive measure.

    President Bush has committed far bigger crimes that render him worthy of impeachment and prosecution.

  4. David Redden
    March 16, 2008 at 9:05 pm #

    I’m definitely not for granting retroactive immunity to the telecom companies, but I have a couple observations about your argument. First, and probably most relevant, is that the telecom companies almost assuredly have an indemnification agreement with the Federal Government, which means that even if the lawsuits against them are effective, they will still not be held accountable because the federal government will pay any judgments against them. Secondly, while there’s some evidence that some of the “framers” thought “ex post facto” included civil laws, it’s well-established that the most influential federalists in the late 18th Century understood an “ex post facto law” to mean a law that was 1) criminal, 2) functioned retroactively, and 3) worked to the detriment of the accused. (See Crosskey, The True Meaning of the Constitutional Prohibition of Ex-Post Facto Laws, 14 U.Chi.L.Rev. 539 (1947)). People are suing the telecoms, which makes them civil matters, not criminal. Immunity would benefit the telecoms, not work to their detriment. In the case of telecom immunity we’re therefore missing elements 1 & 3, so retroactive immunity in the civil context is Constitutionally valid. Unwise and unfair, but valid.

    There is probably nothing to be gained by holding the telecom companies responsible because of the indemnity agreements, and there is certainly nothing to be gained in terms of Constitutional principle since this is not an ex post facto law within the accepted and probable meaning contained in the Constitution. There is, however, something to be gained: exposure of the Bush Administration’s methods and scope of operation, both of which will be sobering and a little terrifying to all but the most stubborn Bushies. It might cause the program to be scaled back, and might cause political damage ahead of the Presidential vote. It’s a huge stretch, but it might even touch off some much needed introspection within the Republican Party.
    We can only hope!

  5. Connor
    March 16, 2008 at 10:01 pm #

    David,

    Thanks for the insight.

    First, and probably most relevant, is that the telecom companies almost assuredly have an indemnification agreement with the Federal Government…

    Yeah, this worries me. Essentially, the consequences of the telecom’s actions will be put on the shoulders of the taxpayers, as we would then finance whatever penalties they were required to pay. That seems, as President Bush stated (albeit arguing for the reverse), “patently unfair”.

    Secondly, while there’s some evidence that some of the “framers” thought “ex post facto” included civil laws, it’s well-established that the most influential federalists in the late 18th Century understood an “ex post facto law” to mean a law that was 1) criminal, 2) functioned retroactively, and 3) worked to the detriment of the accused.

    This article supports the opinion that ex post facto law is permitted for civil matters, as does this collection of court cases.

    As Madison argued in Federalist 44, ex post facto laws in general are “contrary to the first principles of the social compact and to every principle of sound legislation.” In that vein, I believe that it matters little if the issue is a criminal or civil one. Indeed, when the telecoms open their information to the government in violation of stated privacy regulations, they are liable to be sued for breach of contract. In addition, the government is acting illegally by circumventing established law and secretly obtaining private information. It seems that in such cases, the lines between “criminal” and “civil” become blurred.

    There is probably nothing to be gained by holding the telecom companies responsible…

    I very much disagree. Without holding companies (and individuals) accountable for their actions, society loses its understanding of morality and virtue. If somebody is allowed to break the rules and receive retroactive immunity, what is to prevent others from doing the same? What is to curb the decreasing trust among all customers and participants? What is to draw the line between right and wrong, and enforce penalties?

    The problem with ex post facto law is the unsure footing upon which one’s actions stands. How am I to act—choose between two or more options—without knowing the (intended or apparent) consequences of each action?

    Ludwig Von Mises discussed this in Human Action when he said:

    Man is in a position to act because he has the ability to discover casual relations which determine change and becoming in the universe. Acting requires and presupposes the category of causality. Only a man who sees the world in the light of causality is fitted to act. … In a world without causality and regularity of phenomena there would be no field for human reasoning and human action. Such a world would be a chaos in which man would be at a loss to find any orientation and guidance.

    He then goes on to argue that action requires the knowledge of causality, something I discussed here. Ex post facto law removes this causality, allowing legislators to add or remove effects to any given cause. As Mises defined it, this is chaoos.

  6. David Redden
    March 16, 2008 at 11:21 pm #

    Thanks for the great response. I should be asleep right now, but it’s fun to have a conversation with somebody who’s looked into the issues and knows where he stands. I apologize ahead of time for any lack of coherence. :)

    This article supports the opinion that ex post facto law is permitted for civil matters, as does this collection of court cases.

    In regard to the article, as with any other important set of words, there will always be disagreement over what they mean (e.g. the old testament). Frankly, this is part of why I think law is so dang interesting and even fun (I know – I’m sick!). When faced with strong arguments on either side, the decision ultimately rests on which side is most convincing, which decision almost always involves a normative judgment colored by precedent. Precedent is pretty strong in this regard. If you’re an “originalist,” however, there’s really little to go on. There were entirely too many people involved in creating the Constitution, so trying to pin down any airtight “intent” is sure to be a losing battle.

    In regard to the cases, I didn’t see that they refuted my point above other than to add the common-sense caveat that civil laws may sometimes have the character of criminal laws, and so they might conceivably fall within the prohibition. In any event, the cases support my assertion that the ex post facto law in question must work to the detriment of the accused. In this case the accused (or potential accused) are the telecom companies. The law does not work to their detriment. Even if we were to accept that civil laws are included within the Constitutional meaning of “ex post facto,” these cases would support the Constitutionality of retroactive immunity.

    I very much disagree. Without holding companies (and individuals) accountable for their actions, society loses its understanding of morality and virtue.

    I’m sorry, I wasn’t clear. “Nothing to be gained” is too strong a statement. What I meant is that if the telecom co loses a civil suit against them then they will probably suffer no real injury because the government will indemnify them. Even if there’s a judgment against them, they won’t really be held responsible.

    He then goes on to argue that action requires the knowledge of causality, something I discussed here. Ex post facto law removes this causality, allowing legislators to add or remove effects to any given cause. As Mises defined it, this is chaoos.

    Here is where I think most of these sorts of arguments head south. Most times somebody says “that’s unconstitutional” what they are in fact saying is “that’s not how we should interpret the Constitution.” When you step into these normative arguments you move away from the “plain-on-its face textualism” or “historical meaning” arguments you seemed to originally espouse. Normative arguments are weaker because people have different ideas of how the world should be. To that extent, you’re mostly speaking clearly to your (presumably) American-style Libertarian base of readers and supporters, but others will have valid disagreements that are far removed from the actual text of the Constitution.

    I personally don’t agree with your analysis of resulting chaos if we were to exclude laws retrospectively removing penalties from the ex post facto prohibition. Setting aside the fact that you assume that chaos is itself something that can or should be avoided, to argue that such liability-decreasing retroactive laws create chaos ignores the rather pedestrian observation that such retroactive changes in the law happen all the time and results in no such chaos. The Supreme Court retrospectively strikes down laws as unconstitutional. The President retrospectively commutes sentences or pardons crimes. So it happens already, it happens Constitutionally, and I think that as a normative matter it should. The law in strict, mechanical application is sometimes unjust; there should be measures in place to address that deficiency.

    So there we go. After all that argument, just remember that I’m all for sticking it to the telecoms, but I don’t think we’ll be successful even if they lose the lawsuits, and I don’t think retroactive telecom immunity is unconstitutional. In the end, we the taxpayers will be stuck holding the bag, but it’s still worth the fight if it exposes the shocking extent of Bush’s illegal actions.

    I’m going to bed! :)

    BTW – I just saw the Faust quote at the bottom of the page and realized you’re LDS too. Small world! :)

  7. sn0re
    March 16, 2008 at 11:35 pm #

    Ex post facto laws are laws that criminalize previously legal activity. Laws that do the reverse, granting amnesty for previously illegal activities, are perfectly acceptable.

    I don’t know how you could write so much on the topic and ignore something so simple.

  8. Pat
    March 16, 2008 at 11:41 pm #

    I definitely agree with the sentiment of this article. as I find the retroactive immunity absurd and enraging; however I disagree with how you analyze the articles of the constitution.

    I believe ex post facto is specifically interpreted as making a law more stringent, not less. The term your article represents is an amnesty law, (which may seem implicit with ex post facto)

    Plus as an earlier person pointed out, ex post facto in the US applies to criminal cases, not civil suits.

  9. Connor
    March 17, 2008 at 7:02 am #

    As some commenters here and at Reddit have clarified, it would seem that the courts have upheld a distinction between retrospective law and ex post facto law.

    The distinction made, as noted in Calder v. Bull (1798) is that ex post facto law deals mainly with an escalation or imposition of penalties—in other words, criminalizing a previously innocent action, or increasing the penalty for an already performed action. This, then, seems to differ from retrospective law, which is usually the opposite, wherein the government will lesson or remove punishments retroactively for any given action.

    Under this distinction, immunity for the telecom companies would seemingly fall outside of ex post facto law. While this may have a solid legal footing, I’m not sure it’s practicing good morality. For, under this authority, previous actions can be swept under the rug. Of course, this will not apply to Joe and Susan—average citizens both—but to companies and individuals who wield power, have connections, and plenty of money. This system, then, affords the powerful a scapegoat and lifesaver.

    Thanks to all who have commented and helped to clarify this distinction.

  10. Butch
    June 23, 2012 at 10:11 am #

    In part, article 1 sections 9 and 10 of the constitution state in plain simple english that congress nor any state shall pass no ex post facto laws impairing the obligation of contracts.

    Holding that contracts when breeched are a matter of civil law it can be concluded that ex post facto applies to civil as well as criminal law, rendering the Supreme Courts opinion to the contrary invalid!

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