No Ex Post Facto Law

                    The topic of discussion on this Constitution Monday comes from Article I.9.3:  "No … ex post facto law shall be passed [by Congress].  This provision in the Constitution gave every American the guarantee that there would be no law passed by Congress after an act had occurred.

                    "The term ex post facto simply means `after the deed or fact.'  There are five situations which this provision prohibits: 

1) Charging someone with an offense or crime which was not illegal at the time it occurred….

2) Charging someone with a crime under a law which has made the offense more serious than when it was committed….

3) Subjecting someone to a greater punishment than was prescribed by the law at the time the offense was perpetrated….

4) Allowing evidence to be introduced under new rules which were not in effect at the time the offense occurred….

5) Passing a law which deprives the accused of some protection to which he was entitled at the time the act occurred….

                    "Many injustices have been prevented under this provision…."  (See W. Cleon Skousen, The Making of America - The Substance and Meaning of the Constitution, p 476.)

                    "As generally understood, a law that is ex post facto - literally, after the fact - is one that criminally punishes conduct that was lawful when it was done.  It is an aspect of the fundamental maxim, nulla poena sine lege:  there can be no punishment without law - in this case, without pre-existing law.  Despite the fact that the prohibition against such laws had worked its way into English law (as celebrated by Sir William Blackstone), Parliament had, nonetheless, claimed the right to enact ex post facto laws in the form of bills of attainder against unpopular groups and persons.  In addition, prior to the Constitutional Convention, some states themselves had passed ex post facto laws.  (The prohibition of ex post facto state laws is found in Article I, Section 10, Clause 1).

                    "Nevertheless, opposition to ex post facto laws was a bedrock principle among the Framers….

                    "In Philadelphia, the Framers debated the issue vigorously….  The delegates then approved the clause….

                    "While the Supreme Court has hewn to the position that the Ex Post Facto Clause prohibits criminal penalties only, it has also applied the clause in civil cases where criminal penalties are disguised as civil disabilities.  As the Court has said, `it is the effect, not the form, of the law that determines whether it is ex post facto.'  Weaver v. Graham (1980)."  (See Daniel Troy, The Heritage Guide to the Constitution, pp 156-157.)

No Bill of Attainder

                    The topic of discussion for this Constitution Monday comes from Article I.9.3:  "No Bill of Attainder or ex post facto Law shall be passed [by Congress]."  This provision means that no United States citizen could be declared a criminal by an act of Congress.

Both England and colonial America had deprived people of their rights without first giving them a fair trial; by the time the Constitution was written, the Founders realized it was wrong. 

                    "The Constitution prohibits both the federal government (in this clause) and the states (in Article I, Section 10, Clause 1) from passing either bills of attainder or ex post facto laws.  The Framers considered freedom from bills of attainder and ex post facto laws so important that these are the only two individual liberties that the original Constitution protects from both federal and state intrusion….

                    "In common law, bills of attainder were legislative acts that, without trial, condemned specifically designated persons or groups to death.  Bills of attainder also required the `corruption of blood'; that is, they denied to the condemned's heirs the right to inherit his estate.  Bills of pains and penalties, in contrast, singled out designated persons or groups for punishment less than death, such as banishment or disenfranchisement.  Many states had enacted both kinds of statutes after the Revolution.

                    "The Framers forbade bills of attainder as part of their strategy of undoing the English law of treason, and to contend with what they regarded as the most serious historical instance of legislative tyranny by state or national legislatures…."  (See Daniel Troy, The Heritage Guide to the Constitution, p 154-155.)

                    Bills of attainder or ex post facto laws were prohibitively unfair, discriminatory, and arbitrary.  They had no place in the new government being organized in America.

  "The word attainder comes from a French term meaning `to point' or `to touch' with the finger of accusation.  A bill of attainder was an act of Parliament which arbitrarily deprived an individual or group of individuals of their civil rights without any trial or conviction.  A person who had been `attainted' had therefore been `tainted or stained, disgraced or dishonored.'  Thus, a bill of attainder in England was an act of Parliament by which a man was tried, convicted, and disposed of without a jury, without a hearing in court, and generally without an opportunity to confront the witnesses against him or have the protection of the ordinary rules of evidence used in the courts.  His blood was considered to be `attainted' or legally corrupted so that he could not inherit property from others, nor could his children inherit any of his property.  It therefore allowed all of his property to go to the Crown, and this became a convenient but vicious instrument for the enrichment of the Crown.

                    "During periods when the king dominated the Parliament, bills of attainder were used to punish any citizen who had incurred the king's displeasure, and many fell victims of these proceedings who could not have been charged with any offense under existing law….

                    "During the American Revolutionary War, bills of attainder were used extensively to confiscate the property of royalists…. By 1787, however, the Founders were convinced that even under the pressure of wartime conditions or a national emergency, this was an improper mode of punishment which violated the basic civil rights of a citizen.  It was therefore proscribed or outlawed both on the federal level and among the states."  (See W. Cleon Skousen, The Making of America - The Substance and Meaning of the Constitution, p 475.)