Changing the Rules, Part 1

As children, we learn that there are rules and most of them are fairly simple.  Most of what is in the U.S. Constitution and even the vast majority of laws trends toward is those very basic rules as well.  It is how we “play fair” with each other; it tells the government it must “play fair” too.  Did we not ALL learn that it is unfair to change the rules after the fact and try to apply changes retroactively?

That is ALL the ex post facto provisions of the Constitution do.

Every day, we make decisions and it is absolutely necessary for society to function for people to make those decisions based on the laws in effect on THAT day.  You park in a parking space and it isn’t right to get a ticket because they’re going to install parking meters tomorrow or even if they’ve installed them but they aren’t yet functional. 

The law requires you to have a 4’ X 10’ kennel for your dog and then changes it to 10’ X 20’ on September 1 but you knew the law was likely to pass so you’ve got your new, bigger kennel in place on August 1.  Unfortunately, the Legislature has made the law retroactive to June 1 and you get arrested for cruelty for unreasonable confinement for June and July.  THAT is a pure ex post facto law and it is blatantly unconstitutional.

You buy a house because it’s been all over the news that Congress passed a law that’s going to give you an $8,000 deduction on your tax return.  It isn’t fair if they repeal that deduction on December 31 and no one gets it.  And that would be a pure form of ex post facto law.  And, in tax law, it happens all too frequently.

In 1986, an estate representative bought and sold some stocks knowing there was a tax break for it.  On December 22, 1987, the tax law was changed by the legislature AND it was retroactive.  The IRS disallowed the estate’s deduction (and, no doubt, they also tacked on penalties and interest with their demand for payment of the taxes).  The US Supremes ruled in favor of the IRS on this case in U.S. v. Carlton.  This case is often cited for the prospect that ex post facto tax laws are permissible.  THAT is NOT what the Supremes said in 1994.

First, there’s the apparent bad lawyering in this case.  Lawyers hesitate to plea in the alternative and on multiple grounds.  Totally pisses me off.  In this case, the Supremes were asked to rule on whether or not this ex post facto law violated the Due Process clause.  It does not said the Supremes.  Period, that’s all the Supremes said.  They did not rule at all on the ex post facto aspect in this case.

Second, the very bad judging in this case by the Supremes.  “Congress acted promptly and established only a modest period of retroactivity.”  This comes from a very long line of tax law cases and it is just plain bad and WRONG law and decisions by the Supremes.  In fact, from day one, the Supremes have been making bad law in many areas; tax law being one of the biggies.  The Constitution doesn’t say SOME ex post facto laws are permissible, it prohibits them entirely.  “No bill of attainder or ex post facto Law shall be passed”  U.S. Constitution, Art. I, Sec. 9.  That looks pretty damn clear to me.

Congress acted promptly and established only a modest period of retroactivity.”  I read a statement like that and my mind goes straight to: WTF?  We can't keep up with the reams of laws being passed and somehow the Supremes want us to read the minds of legislators so we can act in accord with what they haven't even enacted yet?  That attitude is exactly what makes people tippy toe and grovel to dictators because they don't know the potential consequences to their actions until AFTER the fact.  It is anathema to a free civil society.

Third, MORE bad judging.  The Supremes like to limit themselves to the issues raised by the lawyers.  WRONG.  If it is unconstitutional under ANY provision, it should be ruled unconstitutional whether the parties and lawyers raised the issue or not.  The court has the inherent power to do so and to even tell the parties to brief the issues for them.  I am sick to death of judges (at all levels) who don’t do THEIR part, their JOB, which is to be experts on the Constitutions at a minimum and to hold the governments within those bounds.

(Sidebar.  The prohibition of a “bill of attainer” in plain English is “shall not convict without a trial.  That’s another provision that gets violated regularly by governments who try and convict people at mere “hearings”.)

(Sidebar 2.  States (and local subdivisions of states like counties and cities) are also prohibited from bills of attainder and ex post facto laws.  U.S. Constitution, Art. I, Sec. 10.)

The Supremes regularly refer to Calder v. Bull in deciding ex post facto laws.  The problem is that the case was decided in 1798, a time when the very concept of republican democracy was still very much at odds with the reality of monarchical and dictatorial thought prevalent in society.  We are struggling even more with that today it seems.  The only way this little “experiment” called the United States will survive as a republic is if the governments and, most especially, the courts take the Constitution at its word and judicial precedent to the contrary be hanged.  They’ve had more than 200 years to “phase” it in and it’s time for them to simply accept it and enforce it; long past time actually.

We, the people, simply must not tolerate ex post facto and bills of attainder laws.  It’s that simple.

There is also a related area where laws with ex post facto “effects” have been carved out as permissible because they allege not to be “truly” ex post facto.  Frankly, that is complete hooey style reasoning.  However, it has become a popular form of law to pass in recent years so I will treat it separately.

Go Back