The Supreme Court's Power To Restrain Congress

Ex post facto laws, also known as ex post facto legislation, are laws that retroactively change the legal consequences of actions committed or relationships that existed before the law was enacted. In criminal law, this can mean criminalizing actions that were legal when committed, increasing the severity of a crime, or changing the punishment prescribed for a crime. While the United States Constitution bans the enactment of ex post facto laws by both the federal government and state legislatures, there is some debate about whether this prohibition applies only to retroactive criminal laws or if it also includes retroactive civil laws. This ambiguity has resulted in several retroactive tax laws being passed by the US Congress, starting with the 1913 Revenue Act, which introduced the first income tax. The Supreme Court has also held that the prohibition on ex post facto laws does not apply to crimes committed outside US jurisdiction.

Ex Post Facto Laws in the US Constitution

The US Constitution prohibits ex post facto laws, which are laws that retroactively change the legal consequences of actions committed before the law's enactment. In criminal law, this could mean criminalising actions that were legal when committed, increasing the severity of a crime, or changing the punishment prescribed for a crime by adding new penalties or extending sentences.

The US Constitution's Ex Post Facto Clause, found in Article I, Section 9, Clause 3, and Article I, Section 10, Clause 1, prohibits the application of a new Act's higher penalties to pre-Act conduct. However, it does not prohibit the application of lower penalties. The Supreme Court has interpreted this clause to ban legislatures from enacting laws that impose criminal liability or increase criminal punishment retroactively. This prohibition applies only to criminal matters and not civil matters, as established in Calder v. Bull.

The Ex Post Facto Clause is one of the few restrictions in the original US Constitution on both the federal and state governments. The Framers of the Constitution included this prohibition to protect people from legislative determinations of guilt and to reinforce the separation of powers. The prohibition against ex post facto laws ensures that the government cannot punish someone retroactively for an action that was lawful at the time, protecting citizens against potential abuses of government power.

While there are two Ex Post Facto Clauses (federal and state), only one can apply to any given piece of legislation. The Supreme Court has cited cases interpreting the federal clause in challenges under the state clause, implying that the two clauses have the same scope.

Ex Post Facto Laws in other countries

Ex post facto laws are prohibited by Article 7 of the European Convention on Human Rights, Article 15(1) of the International Covenant on Civil and Political Rights, and Article 9 of the American Convention on Human Rights.

European countries apply the principle of lex mitior ("the milder law"), which states that if the law has changed after an offence was committed, the version of the law that applies is the one that is more advantageous for the accused. This means that ex post facto laws can be applied in European jurisdictions if they are the milder law.

In Australia, there is no strong constitutional prohibition on ex post facto laws, although narrowly retrospective laws might violate the constitutional separation of powers principle. Australian courts typically interpret statutes with a strong presumption that they do not apply retrospectively. Australia is a party to the International Covenant on Civil and Political Rights, which expressly prohibits the implementation of retrospective criminal laws.

In India, the underlying principle of ex post facto laws has been adopted in Article 20(1) of the Indian Constitution, which states that:

> No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which have been inflicted under the law in force at the time of the commission of the offence.

However, there is a difference between the Indian and American positions. While in the United States, an ex post facto law is invalid in itself, this is not the case in India.

International criminal law has also dealt with ex post facto laws. The Nuremberg trials, for example, prosecuted war crimes and crimes against humanity perpetrated in World War II. Although the procedural law under which the trials were held postdated V-E Day, the tribunal rejected the defence that the criminal law was ex post facto, arguing that it derived from earlier treaties. The International Criminal Court, established in 2002, cannot prosecute crimes committed before 2002. Article 11, paragraph 2 of the Universal Declaration of Human Rights provides that:

> No person [shall] be held guilty of any criminal law that did not exist at the time of [the] offence nor suffer any penalty heavier than what existed at the time of [the] offence.

The Supreme Court's interpretation

The United States Constitution restricts both the power of the federal and state governments by prohibiting ex post facto laws. The Constitution's Ex Post Facto Clause, Art. I, § 9, cl. 3, prohibits applying a new act's higher penalties to pre-Act conduct, but it does not prohibit applying lower penalties. The Supreme Court has interpreted this clause to mean that ex post facto laws are prohibited only in criminal matters, not civil matters.

In Calder v. Bull (1798), the Supreme Court held that the prohibition on ex post facto laws applied only to retroactive criminal laws. Justice Samuel Chase established four categories of unconstitutional ex post facto laws in this case, which has been repeatedly referenced by the Supreme Court when deciding ex post facto cases. The case concerned a Connecticut state law, and as a result, several retroactive taxes have been passed by the US Congress, starting with the 1913 Revenue Act, which imposed the first income tax.

The Supreme Court has also held that the prohibition on ex post facto laws does not apply to crimes committed outside the jurisdiction of the United States against the laws of a foreign country, as in Neely v. Henkel (1901). The Court has construed both clauses (federal and state) to ban legislatures from enacting laws that impose criminal liability or increase criminal punishment retroactively. This includes laws that retroactively criminalize behavior, aggravate a crime by bringing it into a more severe category, change the punishment prescribed for a crime, extend the statute of limitations, or alter the rules of evidence to make conviction more likely.

In Beazell v. Ohio (1925), the Supreme Court helped define the constitutional restrictions of ex post facto legislation. The Court held that an Ohio law mandating separate trials for persons jointly indicted for a felony was not ex post facto as it applied only to persons indicted after the law's passage, even if the offense was committed before. This case established the Beazell standard for ex post facto analysis, which was applied in California Dep't of Corrections v. Morales (1995) regarding the parole process. The Supreme Court has also held that retroactive criminal statutes that do not disadvantage criminal defendants are not ex post facto laws, as in Weaver v. Graham (1981).

Bills of Attainder

In the United States, bills of attainder are unconstitutional, as stated in Article 1, Section 9, and Article 1, Section 10 of the U.S. Constitution. Article 9 prohibits federal bills of attainder, while Article 10 prohibits bills of attainder by the states. The constitutional ban on bills of attainder upholds separation of powers principles by preventing Congress from assuming the functions of the judicial branch.

A bill of attainder is a piece of legislation that declares a party guilty of a crime without a trial. These bills allow the government to punish a party for a perceived crime without first going through the trial process. The Supreme Court has interpreted the ban on bills of attainder broadly, prohibiting not only legislation imposing a death sentence but also other forms of punishment on specific persons without a trial. For example, in Nixon v. Adm'r of General Services, the Court determined that punishment in the context of bills of attainder includes considering the historical view of the statute as punitive and whether it can reasonably further non-punitive purposes.

Courts have adopted a three-part test to determine if a law functions as a bill of attainder: the law inflicts punishment, the law targets specific named or identifiable individuals or groups, and those individuals or groups would otherwise have judicial protections. The Supreme Court has also laid out three tests for assessing whether a law imposes punishment: historical, functional, and motivational. The historical test examines the infamous history of bills of attainder to determine if the law was deemed a bill of attainder before the Founding and in prior Supreme Court cases. The Court has emphasised that legislation does not violate the Bill of Attainder Clause simply because it places legal burdens on a specific individual or group.

The constitutional prohibitions of ex post facto laws are closely related to the prohibitions of bills of attainder. Ex post facto laws are those that retroactively change the legal consequences or status of actions committed or relationships that existed before the enactment of the law. The U.S. Constitution bans the enactment of ex post facto laws by both the federal government and the states. The Supreme Court has held that these prohibitions do not apply to crimes committed outside the jurisdiction of the United States against foreign law.

The Fourteenth Amendment

The direct prohibition of ex post facto laws applies only to the federal government and not to the states. However, the Fourteenth Amendment's Due Process Clause has been used to extend this prohibition to state governments as well. In other words, while the explicit language of the Ex Post Facto Clause in Article I, Section 9 applies directly only to Congress, the Fourteenth Amendment ensures that similar protections apply at the state level.

The Supreme Court has interpreted the Due Process Clause to include what is known as "substantive due process," which protects fundamental rights from government interference. This interpretation has been used to strike down state laws that violate the core principles of the Constitution, including the prohibition on ex post facto laws. For example, in the 1969 case of Bouie v. City of Columbia, the Court held that a South Carolina law could not be applied retroactively to punish sit-in protesters because it would violate the Due Process Clause by functioning as an ex post facto law.

In addition to its role in prohibiting ex post facto laws, the Fourteenth Amendment has had a profound impact on the development of American law and society more broadly. It transformed the relationship between the federal government and the states, providing a basis for federal intervention to protect individual rights. The amendment also played a crucial role in extending equal protection and due process rights to formerly enslaved individuals and their descendants, although the struggle for full realization of these rights continues.

Frequently asked questions