essay about ex post facto law

Georgetown Center for the Constitution

No . . . ex post facto law shall be passed., related citations, john mikhail, james wilson, early american land companies, and the original meaning of “ex post facto law,” 17 geo. j.l. & pub. pol’y 79 (2019)..

Arguing that the Ex Post Facto Clause was “widely understood at the founding to extend to retroactive civil laws” and raising questions about the reliability of Madison’s notes from the Constitutional Convention.

Evan C. Zoldan, The Civil Ex Post Facto Clause, 2015 Wis. L. Rev. 727 (2015).

Concluding that the Ex Post Facto Clause was originally understood to encompass civil, as well as criminal, laws.

Maeva Marcus, The Effect (or Non-Effect) of Founders on the Supreme Court Bench, 80 Geo. Wash. L. Rev. 1794 (2012).

Reviewing early debates about the Ex Post Facto Clause, specifically debates among the members of the Supreme Court who were also involved in drafting the Constitution.

Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005 (2011).

Arguing that only Congress can violate the federal Ex Post Facto Clause.

Wayne A. Logan, “Democratic Despotism” and Constitutional Constraint: An Empirical Analysis of Ex Post Facto Claims in State Courts, 12 Wm. & Mary Bill Rts. J. 439 (2004).

Arguing that the Framers passed the Ex Post Facto Clause to protect against political forces that motivated state legislatures to adopt retroactive criminal laws. 

Robert G. Natelson, Statutory Retroactivity: The Founders’ View, 39 Idaho L. Rev. 489 (2003).

Arguing that the original understanding of the Ex Post Facto Clause proscribed retroactive criminal laws only.

Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003).

Arguing that the clause was originally ambiguous about whether it applied to all laws or only to criminal penalties, but later court decisions fixed the meaning and that precedent should be respected.

Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26 (2000).

Arguing that the ex post facto laws were generally understood as laws that retroactively criminalized conduct that was innocent at the time the act was committed and that such laws were condemned as contrary to first principles.

Note, Andrew J. Gottman, Fair Notice, Even for Terrorists: Timothy Mcveigh and a New Standard for the Ex Post Facto Clause, 56 Wash. & Lee L. Rev. 591 (1999).

Arguing that the Framers likely intended the Ex Post Facto Clauses to protect property rights in addition to protecting against retroactive criminal punishment. 

Laura Ricciardi & Michael B.W. Sinclair, Retroactive Civil Legislation, 27 U. Tol. L. Rev. 301 (1996).

Arguing that the Ex Post Facto Clause was not intended to be limited to criminal legislation.

Jane Harris Aiken, Ex Post Facto in the Civil Context: Unbridled Punishment, 81 Ky. L.J. 323 (1993).

Arguing that the Ex Post Facto Clause was not intended to be limited to criminal legislation but that the Court does not extend the same protections to civil legislation.

Thomas B. McAffee, Prolegomena to A Meaningful Debate of the “Unwritten Constitution” Thesis, 61 U. Cin. L. Rev. 107 (1992).

Refuting Suzanna Sherry’s contention that a prohibition against ex post facto laws was inherent in natural rights and, therefore, not needed by looking to the history of the debate surrounding the Virginia Declaration of Rights in 1776.

Douglas W. Kmiec & John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. L.Q. 525 (1987).

Arguing that Calder v. Bull properly limited the Ex Post Facto Clause to criminal laws. 

Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987).

Explaining that most delegates believed it was unnecessary to include the Ex Post Facto Clause in the Constitution because such laws so obviously violate natural law. 

William Crosskey, The True Meaning of the Constitutional Prohibition of Ex Post Facto Laws, 14 U. Chi. L. Rev. 539 (1946).

Reviewing Founding Era history to show how recent abuses of ex post facto laws informed the debate about the Ex Post Facto Clause at the Constitutional Convention and meant the original meaning of the clause was not limited to just criminal laws.

Oliver P. Field, Ex Post Facto in the Constitution, 20 Mich. L. Rev. 315 (1922).

Arguing that the Ex Post Facto Clause is not limited to criminal laws.

Ex Post Facto

Definition of ex post facto, ex post facto laws, adam walsh child protection and safety act, the three tiers, ex post facto example involving child abuse, trial and appeal, supreme court decision, related legal terms and issues.

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Bills of Attainder and Ex Post Facto Laws

Clause 3. No Bill of Attainder or ex post facto Law shall be passed.

Annotations

“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.” 1910 The phrase “bill of attainder,” as used in this clause and in clause 1 of § 10, applies to bills of pains and penalties as well as to the traditional bills of attainder. 1911

The prohibition embodied in this clause is not to be narrowly construed in the context of traditional forms but is to be interpreted in accordance with the designs of the framers so as to preclude trial by legislature, which would violate the separation of powers. 1912 The clause thus prohibits all legislative acts, “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. . . .” 1913 That the Court has applied the clause dynamically is revealed by a consideration of the three cases in which acts of Congress have been struck down as violating it. 1914 In Ex parte Garland , 1915 the Court struck down a statute that required attorneys to take an oath that they had taken no part in the Confederate rebellion against the United States before they could practice in federal courts. The statute, and a state constitutional amendment requiring a similar oath of persons before they could practice certain professions, 1916 were struck down as legislative acts inflicting punishment on a specific group the members of which had taken part in the rebellion and therefore could not truthfully take the oath. The clause then lay unused until 1946 when the Court used it to strike down a rider to an appropriations bill forbidding the use of money appropriated in the bill to pay the salaries of three named persons whom the House of Representatives wished discharged because they were deemed to be “subversive.” 1917

Then, in United States v. Brown , 1918 a sharply divided Court held void as a bill of attainder a statute making it a crime for a member of the Communist Party to serve as an officer or as an employee of a labor union. Congress could, Chief Justice Warren wrote for the majority, under its commerce power, protect the economy from harm by enacting a prohibition generally applicable to any person who commits certain acts or possesses certain characteristics making him likely in Congress’s view to initiate political strikes or other harmful deeds and leaving it to the courts to determine whether a particular person committed the specified acts or possessed the specified characteristics. It was impermissible, however, for Congress to designate a class of persons—members of the Communist Party—as being forbidden to hold union office. 1919 The dissenters viewed the statute as merely expressing in shorthand the characteristics of those persons who were likely to utilize union responsibilities to accomplish harmful acts; Congress could validly conclude that all members of the Communist Party possessed those characteristics. 1920

The majority’s decision in Brown cast in doubt certain statutes and certain statutory formulations that had been held not to constitute bills of attainder. For example, a predecessor of the statute struck down in Brown , which had conditioned a union’s access to the NLRB upon the filing of affidavits by all of the union’s officers attesting that they were not members of or affiliated with the Communist Party, had been upheld, 1921 and although Chief Justice Warren distinguished the previous case from Brown on the basis that the Court in the previous decision had found the statute to be preventive rather than punitive, 1922 he then proceeded to reject the contention that the punishment necessary for a bill of attainder had to be punitive or retributive rather than preventive, 1923 thus undermining the prior decision. Of much greater significance was the effect of the Brown decision on “conflict-of-interest” legislation typified by that upheld in Board of Governors v. Agnew . 1924 The statute there forbade any partner or employee of a firm primarily engaged in underwriting securities from being a director of a national bank. 1925 Chief Justice Warren distinguished the prior decision and the statute on three grounds from the statute then under consideration. First, the union statute inflicted its deprivation upon the members of a suspect political group in typical bill-of-attainder fashion, unlike the statute in Agnew . Second, in the Agnew statute, Congress did not express a judgment upon certain men or members of a particular group; it rather concluded that any man placed in the two positions would suffer a temptation any man might yield to. Third, Congress established in the Agnew statute an objective standard of conduct expressed in shorthand which precluded persons from holding the two positions.

Apparently withdrawing from the Brown analysis in upholding a statute providing for governmental custody of documents and recordings accumulated during the tenure of former President Nixon, 1926 the Court set out a rather different formula for deciding bill of attainder cases. 1927 The law specifically applied only to President Nixon and directed an executive agency to assume control over the materials and prepare regulations providing for ultimate public dissemination of at least some of them; the act assumed that it did not deprive the former President of property rights but authorized the award of just compensation if it should be judicially determined that there was a taking. First, the Court denied that the clause denies the power to Congress to burden some persons or groups while not so treating all other plausible individuals or groups; even the present law’s specificity in referring to the former President by name and applying only to him did not condemn the act because he “constituted a legitimate class of one” on whom Congress could “fairly and rationally” focus. 1928 Second, even if the statute’s specificity did bring it within the prohibition of the clause, the lodging of Mr. Nixon’s materials with the GSA did not inflict punishment within the meaning of the clause. This analysis was a three-pronged one: 1) the law imposed no punishment traditionally judged to be prohibited by the clause; 2) the law, viewed functionally in terms of the type and severity of burdens imposed, could rationally be said to further nonpunitive legislative purposes; and 3) the law had no legislative record evincing a congressional intent to punish. 1929 That is, the Court, looking “to its terms, to the intent expressed by Members of Congress who voted its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect,” concluded that the statute served to further legitimate policies of preserving the availability of evidence for criminal trials and the functioning of the adversary legal system and in promoting the preservation of records of historical value, all in a way that did not and was not intended to punish the former President.

The clause protects individual persons and groups who are vulnerable to nonjudicial determinations of guilt and does not apply to a state; nor does a state have standing to invoke the clause for its citizens against the Federal Government. 1930

Both federal and state governments are prohibited from enacting ex post facto laws, 1931 and the Court applies the same analysis whether the law in question is a federal or a state enactment. When these prohibitions were adopted as part of the original Constitution, many persons understood the term ex post facto laws to “embrace all retrospective laws, or laws governing or controlling past transactions, whether . . . of a civil or a criminal nature.” 1932 But in the early case of Calder v. Bull , 1933 the Supreme Court decided that the phrase, as used in the Constitution, was a term of art that applied only to penal and criminal statutes. But, although it is inapplicable to retroactive legislation of any other kind, 1934 the constitutional prohibition may not be evaded by giving a civil form to a measure that is essentially criminal. 1935 Every law that makes criminal an act that was innocent when done, or that inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution. 1936 A prosecution under a temporary statute that was extended before the date originally set for its expiration does not offend this provision even though it is instituted subsequent to the extension of the statute’s duration for a violation committed prior thereto. 1937 Because this provision does not apply to crimes committed outside the jurisdiction of the United States against the laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is ex post facto or not. 1938

The issue of whether a law is civil or punitive in nature is essentially the same for ex post facto and for double jeopardy analysis. 1939 “A court must ascertain whether the legislature intended the statute to establish civil proceedings. A court will reject the legislature’s manifest intent only where a party challenging the Act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State’s intention.” 1940 A statute that has been held to be civil and not criminal in nature cannot be deemed punitive “as applied” to a single individual. 1941

A variety of federal laws have been challenged as ex post facto . A statute that prescribed as a qualification for practice before the federal courts an oath that the attorney had not participated in the Rebellion was found unconstitutional because it operated as a punishment for past acts. 1942 But a statute that denied to polygamists the right to vote in a territorial election was upheld even as applied to one who had not contracted a polygamous marriage and had not cohabited with more than one woman since the act was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter. 1943 A deportation law authorizing the Secretary of Labor to expel aliens for criminal acts committed before its passage is not ex post facto because deportation is not a punishment. 1944 For this reason, a statute terminating payment of old-age benefits to an alien deported for Communist affiliation also is not ex post facto , for the denial of a non-contractual benefit to a deported alien is not a penalty but a regulation designed to relieve the Social Security System of administrative problems of supervision and enforcement likely to arise from disbursements to beneficiaries residing abroad. 1945 Likewise, an act permitting the cancellation of naturalization certificates obtained by fraud prior to the passage of the law was held not to impose a punishment, but instead simply to deprive the alien of his ill-gotten privileges. 1946

A change of the place of trial of an alleged offense after its commission is not an ex post facto law. If no place of trial was provided when the offense was committed, Congress may designate the place of trial thereafter. 1947 A law that alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid, 1948 but a statute that simply enlarges the class of persons who may be competent to testify in criminal cases is not ex post facto as applied to a prosecution for a crime committed prior to its passage. 1949

1910 3 J. Story, Commentaries On The Constitution Of The United States 1338 (1833).

1911 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); cf. United States v. Brown, 381 U.S. 437, 441–442 (1965).

1912 United States v. Brown, 381 U.S. 437, 442–46 (1965). Four dissenting Justices, however, denied that any separation of powers concept underlay the clause. Id. at 472–73.

1913 United States v. Lovett, 328 U.S. 303, 315 (1946).

1914 For a rejection of the Court’s approach and a plea to adhere to the traditional concept, see id. at 318 (Justice Frankfurter concurring).

1915 71 U.S. (4 Wall.) 333 (1867).

1916 Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867).

1917 United States v. Lovett, 328 U.S. 303 (1946).

1918 381 U.S. 437 (1965).

1919 The Court of Appeals had voided the statute as an infringement of First Amendment expression and association rights, but the Court majority did not rely upon this ground. 334 F.2d 488 (9th Cir. 1964). However, in United States v. Robel, 389 U.S. 258 (1967), a very similar statute making it unlawful for any member of a “Communist-action organization” to be employed in a defense facility was struck down on First Amendment grounds and the bill of attainder argument was ignored.

1920 United States v. Brown, 381 U.S. 437, 462 (1965) (Justices White, Clark, Harlan, and Stewart dissenting).

1921 American Communications Ass’n v. Douds, 339 U.S. 382 (1950).

1922 Douds , 339 U.S. at 413, 414, cited in United States v. Brown, 381 U.S. 437, 457–458 (1965).

1923 Brown , 381 U.S. at 458–61.

1924 329 U.S. 441 (1947).

1925 12 U.S.C. § 78.

1926 The Presidential Recordings and Materials Preservation Act, Pub. L. 93– 526, 88 Stat. 1695 (1974), note following 44 U.S.C. § 2107. For an application of this statute, see Nixon v. Warner Communications, 435 U.S. 589 (1978).

1927 Nixon v. Administrator of General Services, 433 U.S. 425, 468–84 (1977). Justice Stevens’ concurrence is more specifically directed to the facts behind the statute than is the opinion of the Court, id. at 484, and Justice White, author of the dissent in Brown , merely noted he found the act nonpunitive. Id. at 487. Chief Justice Burger and Justice Rehnquist dissented. Id. at 504, 536–45. Adding to the impression of a departure from Brown is the quotation in the opinion of the Court at several points of the Brown dissent, id. at 470 n.31, 471 n.34, while the dissent quoted and relied on the opinion of the Court in Brown . Id. at 538, 542.

1928 433 U.S. at 472. Justice Stevens carried the thought further, although in the process he severely limited the precedential value of the decision. Id. at 484.

1929 433 U.S. at 473–84.

1930 South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).

1931 The prohibition on state ex post facto legislation appears in Art. I, § 10, cl. 1.

1932 3 J. Story, Commentaries On The Constitution Of The United States 1339 (1833).

1933 3 U.S. (3 Dall.) 386, 393 (1798).

1934 Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923).

1935 Burgess v. Salmon, 97 U.S. 381 (1878).

1936 Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland, 71 U.S. (4 Wall.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878).

1937 United States v. Powers, 307 U.S. 214 (1939).

1938 Neely v. Henkel, 180 U.S. 109, 123 (1901). Cf. In re Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy); Hirota v. MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of Justice Douglas).

1939 Kansas v. Hendricks, 521 U.S. 346 (1997); Seling v. Young, 531 U.S. 250 (2001).

1940 Seling v. Young, 531 U.S. 250, 261 (2001) (interpreting Art. I, § 10).

1941 Seling v. Young, 531 U.S. at 263 (2001).

1942 Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).

1943 Murphy v. Ramsey, 114 U.S. 15 (1885).

1944 Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585 (1913); Marcello v. Bonds, 349 U.S. 302 (1955). Justices Black and Douglas, reiterating in Lehman v. United States ex rel. Carson, 353 U.S. 685, 690–91 (1957), their dissent from the premise that the ex post facto clause is directed solely to penal legislation, disapproved a holding that an immigration law, enacted in 1952, 8 U.S.C. § 1251, which authorized deportation of an alien who, in 1945, had acquired a status of nondeportability under pre-existing law is valid. In their opinion, to banish, in 1957, an alien who had lived in the United States for almost 40 years, for an offense committed in 1936, and for which he already had served a term in prison, was to retrospectively subject him to a new punishment.

1945 Flemming v. Nestor, 363 U.S. 603 (1960).

1946 Johannessen v. United States, 225 U.S. 227 (1912).

1947 Cook v. United States, 138 U.S. 157, 183 (1891).

1948 Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).

1949 Hopt v. Utah, 110 U.S. 574, 589 (1884).

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Ex post facto laws and bills of attainder, Bill of Rights

No ex post facto law or bill of attainder shall be enacted. (Section 22, Article III, 1987 Constitution)

An ex post facto law is one which, among others, aggravates a crime or makes it greater than it was when committed or changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. ( Nasi-Villar v. People , G.R. No. 176169, 14 November 2008)

An ex post facto law has been defined as one:

1) Which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or

2) Which aggravates a crime or makes it greater than it was when committed; or

3) Which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or

4) Which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant; or

5) That which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; or,

6) That which deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. ( Salvador v. Mapa , G.R. No. 135080, 28 November 2007)

A law can never be considered ex post facto as long as it operates prospectively since its strictures would cover only offenses committed after and not before its enactment. ( Nasi-Villar v. People , supra .)

a. Applies to penal laws

The constitutional proscription of ex post facto laws is aimed against the retrospectivity of penal laws. Penal laws are acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment. ( Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto , En Banc , G.R. No. 145184, 14 March 2008)

1) The subject administrative and memorandum orders clearly are not penal laws. Administrative Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, and provides for its composition and functions. It does not mete out penalty for the act of granting behest loans. Memorandum Order No. 61 merely provides a frame of reference for determining behest loans. Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex post facto laws. There is, therefore, no basis for the Ombudsman to rule that the subject administrative and memorandum orders are ex post facto . ( Salvador v. Mapa , Ibid. )

2) The argument that Presidential Decree No. 1606 is an ex-post facto law is without merit because the same is not a penal statute, It merely provides for the transfer of jurisdiction over certain cases where the defendant has not yet been arraigned, from the Court of First Instance (now Regional Trial Court) to the Sandiganbayan. ( Alvia v. Sandiganbayan , En Banc , G.R. Nos. L-51923-25, 19 June 1985)

3) Administrative Order No. 13 does not mete out a penalty for the act of granting behest loans. It merely creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans and provides for its composition and functions. Memorandum Order No. 61, on the other hand, simply provides the frame of reference in determining the existence of behest loans. Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex-post facto laws. ( Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto , supra .)

b. Operation of penal laws

GENERAL RULE: Penal laws and laws which, while not penal in nature, have provisions defining offenses and prescribing penalties for their violation operate prospectively. Penal laws cannot be given retroactive effect. ( Nasi-Villar v. People , supra .)

EXCEPTION: … except when they are favorable to the accused. ( Ibid. )

2. Extradition treaty

An extradition treaty does not violate the Constitutional prohibition against ex post facto laws. The Treaty is neither a piece of criminal legislation nor a criminal procedural statute. “It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified.” ( Wright v. CA , G.R. No. 113213, 15 August 1994)

• Article III, 1987 Philippine Constitution

/Updated: September 22, 2023

Learning and resource site for Philippine Laws

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The Fourteenth Amendment is Not a Bill of Attainder

Uncovering the Fundamental Contradictions in Chief Justice Chase’s Argument That Section Three Is Not Self-Executing

• Henry Ishitani

On February 8th, 2024, the Supreme Court will hear oral arguments on whether Donald Trump is disqualified from the presidency under Section Three of the Fourteenth Amendment , which states that “[n]o person” who “engaged in insurrection” after swearing to uphold the Constitution “shall . . . hold any office” again. Leaving aside the policy arguments — which are better left to Congress anyway — the best case against former President Trump’s disqualification from the presidency is that Section Three is not self-executing but instead requires prior Congressional action before it takes effect.

Scholarly amici have already brought forward significant historical evidence showing that “[t]he Congress members who framed the Reconstruction Amendments” did intend Section Three “to be self-executing.” However, defenders of Trump’s eligibility point to one potent piece of contemporary evidence on their side: Chief Justice Chase’s 1869 circuit opinion in Griffin’s Case , which ruled Section Three to be non-self-executing. Trump’s 2024 presidential campaign may therefore swing on the persuasive weight the Court grants this one (non-binding) precedent.

This Essay brings new historical evidence to bear against Trump’s reliance on Griffin . Scholars William Baude, Michael Paulsen , and Gerard Magliocca have already pointed out the opinion’s contradiction with Chief Justice Chase’s position from a few months prior in the Case of Davis . There, the Chief Justice reasoned that Jefferson Davis could not be tried for treason under Fifth Amendment Double Jeopardy rules because Section Three had already executed its punishment of officeholding disqualification on Davis for the same crime.

But this new evidence demonstrates how much deeper the conflicts in the Chief Justice’s reasoning go. The basic premise of the case and its non-self-executing argument — that officeholding disqualifications like Section Three are punitive bills of attainder and ex post facto laws contrary to the “spirit” of the Constitution — appears to flatly contradict the position taken by Chief Justice Chase in cases both before and after  Griffin on the “ exactly similar ” constitutional issue of test oath disqualification. 

So, can Griffin be saved from this host of further contradictions? Chief Justice Chase’s personal correspondence does in fact offer two realistic paths to reconciliation, one purely political in its reasoning and another that depends on adding a further legal gloss to Griffin . Yet both paths lead the decision beyond the reach of Trump’s main scholarly defenders , Seth Barrett Tillman and Josh Blackman, and their herculean 100-page effort to rescue Griffin as a precedent against self-execution. Thus, any way we cut it, Griffin does not prevent Colorado and other States from using Section Three to hold our former President accountable for his actions on January 6th, 2021.

So, what happened in Griffin’s Case ? Ceasar Griffin was a Black man who refused to step aside for a white woman on the street and then defended himself from a beating by the woman’s son. Virginia prosecuted Griffin in state court for assault with intent to kill, and he was sentenced to prison. Griffin sought and initially received a federal writ of habeas corpus based on the fact that Hugh W. Sheffey, the Virginia judge presiding in his case, had engaged in rebellion and was therefore disqualified from office following the ratification of the Fourteenth Amendment. On appeal, the Chief Justice reversed the award of the writ, denying that the Fourteenth Amendment disqualified the state judge without further Congressional action.

The Chief Justice offered two arguments against the self-execution of Section Three. First, self-execution should be avoided for the negative consequences of removing ex-Confederates from office and possibly voiding official acts made in the roughly ten months since the July 1868 ratification. Not even Tillman and Blackman try to rescue this purely consequentialist claim. Griffin ’s leading critics, Baude and Paulsen , put it nicely: “Judges do not to get to rewrite constitutional provisions they find objectionable on policy grounds.”

Second, and more significantly, Chief Justice Chase claimed that by disqualifying ex-officer insurrectionists from holding office, Section 3 was intended to punish the crime of “engag[ing] in the Rebellion.” The Section should therefore be read narrowly given the tension that such quasi-legislative “punishment” has with the “spirit and general purpose” of the pre-existing federal and state Bill of Attainder and Ex Post Facto Clauses. Section Five’s grant of “power to enforce” the Amendment then suggests that we find our limiting construction of Section Three with the requirement that Congress first implement it before any of its disqualification “punishments” take effect. This at least resembles constitutional reasoning, however shaky.

Yet underneath this constitutional reasoning lies a problem, one that exists wholly separately from the clash of Tillman/Blackman v. Magliocca/Baude/Paulsen over the significance of Chief Justice Chase’s contradictory holding in Davis . The more fundamental contradiction is this: Chief Justice Chase repeatedly decided both before and after Griffin that officeholding disqualifications were not punishments in the first place. If they are not punishment, then they have zero conflict with the Constitution’s prohibitions against state and federal bills of attainder and ex post facto laws. And down comes the rickety scaffolding of the Chief Justice’s reasoning against self-execution.

How do we know that Chief Justice Chase contradicted himself on whether officeholding disqualification was punishment? For one, the Chief Justice joined the January 1867 four-vote dissent in the Test Oath Cases . The dissenters denied the five-vote majority’s contention that disqualification for past insurrectionary conduct from state and federal political office, as well as from the pastoral and legal professions, represented “infliction of punishment, against the prohibition of the Constitution[’s]” bill of attainder and ex post facto clauses.

Well, maybe Chief Justice Chase just changed his mind? Not enough to change his vote. Following the death of Justice James M. Wayne in July of 1867, the Test Oath majority lost its ability to make an actual binding precedent out of its claim that officeholding disqualifications were punishment in violation of the Bill of Attainder and Ex Post Facto Clauses. In Blair v. Ridgely , the Missouri Supreme Court treated this claim (correctly) as mere dicta, given that the Test Oath plaintiffs had themselves only been disqualified from legal and pastoral practice, not “political privilege[s]” like the vote — a logic that it then explicitly extended to officeholding disqualifications in State ex rel. Wingate v. Woodson . The Tennessee Supreme Court similarly cabined the Test Oath precedent as it upheld voter disqualifications as constitutional in Ridley v. Sherbrook .

For nearly three years, Chief Justice Chase delayed the decision on these cases from session to session. Finally, on January 31, 1870 — eight months after his Griffin decision finding that Section Three officeholding disqualifications were punitive — Chief Justice Chase’s Court issued a 4-4 deadlock opinion-less decision affirming one of the cases. Thus, Chief Justice Chase and his colleagues from the Test Oath dissent affirmed (albeit without establishing a national precedent) the state supreme courts’ holdings that officeholding and voter disqualifications for past insurrectionary conduct were not punitive .

Well, maybe the Chief Justice understood Section Three disqualification to be somehow essentially different in its punitive character from test oath disqualification? Not according to the Chief Justice Chase of Griffin . That Chief Justice characterized Section Three implementation as directly analogous to Congress’ application of the federal test oath in Virginia and Texas. Indeed, lawmakers of the time knew full well “that the test oath and [Section Three] stand constitutionally upon exactly similar foundations.”

So, is there in fact any kind of underlying consistency to be found in Chief Justice’s reasoning across the disqualification cases? Can Griffin be saved from its apparent contradictions not just with Davis but with the Test Oath Cases and their Ridley , Ridgely , and Woodson progeny? Chief Justice Chase’s personal correspondence suggests two possible throughlines of consistency — one a fundamentally political commitment to states’ rights and the other based (largely) in an actual legal argument.

Evidence for the political throughline arises from two letters written by Chief Justice Chase. The first letter was sent and then published in a leading national newspaper in July of 1868, as the Chief Justice openly negotiated with party leaders for the 1868 Democratic presidential nomination. In this letter, Chief Justice Chase squarely affirmed that, while “[w]hat [he] desire[d] for the Southern States is peace and prosperity, with all disfranchisements and disabilities removed and all rights restored to all citizens,” he also believed that “the practical disposition of the question of suffrage, as well as all other domestic questions, is for the people of the States themselves, not for outsiders.” As he concluded, “[o]n this question I adhere to my old States rights doctrines.”

The Chief Justice’s second letter comes from February of 1870. In it, the Chief Justice explained his continuing defense of the states’ disqualifications in Ridley , Ridgely , and Woodson on these very same “States rights” lines, a year after he blocked the federal courts from ruling the state judge in Griffin disqualified by Section Three: “No doubt the [state] oath is detestable . . . but I thought and still think it safer not to interfere with the right of the State to regulate her own internal concerns.”

Adding a “States rights” gloss to the Chief Justice’s reasoning allows us to reconcile his disqualification decisions. The original 1866-67 Test Oath Cases saw a Congressional test oath used to disqualify an attorney from the federal bar and a state constitutional test oath used to disqualify an attorney and a priest from state professional licensing. None of these cases offended the Chief Justice’s “States rights” sensibilities, with the federal and state governments each attending to their own “questions” and “internal concerns.” Obviously, this was true as well in Ridley , Ridgely , and Woodson .

However, these terms did not apply in either Griffin or Davis . Griffin , after all, centered on the federal District Court’s holding that Section Three of the federal Fourteenth Amendment had disqualified a state judge from office. Chase deemed such disqualification a “punishment” and construed it narrowly against self-execution. Likewise, Davis presented the picture of that same federal Section Three provision disqualifying Jefferson Davis from future federal and state office. Again, Chase deemed this disqualification a “punishment.” But this time he interpreted the provision broadly in favor of self-execution in order to preserve the former president of the Confederacy — the very emblem of “States rights” and the darling “martyr” of Southern Democrats — from a traitor’s trial and federal execution.

So, where a disqualification applied federally against a state, as in Griffin , the Chief Justice would block it. Those terms clearly do not apply in 2024 to Donald Trump, who neither holds nor is seeking state office. Where it was applied by a state, as in two of the three test oath cases as well as Ridley , Ridgely , and Woodson , the Chief Justice would allow it — even though the Constitution’s bars against federal and state bills of attainder and ex post facto laws are identical.

In other words, the Chief Justice Chase’s reasoning was inescapably political. And those politics just happened to align with the party of “States rights” and Jefferson Davis, whose nomination he sought energetically in 1868.

This purely political story makes a great deal of sense. Tillman and Blackman have rushed to defend the Chief Justice from accusations of naked ambition, but the Chief Justice’s overriding devotion to his “ presidential aspirations ” was obvious and admitted by nearly everyone who knew him, including close friends and colleagues.

However, the Chief Justice’s personal correspondence does offer one other, less purely political possibility for justifying his strange medley of disqualification decisions. In March of 1867, the Chief Justice wrote another federal judge that he thought only officeholding disqualifications that were imposed “as a condition of continuing to exercise an office or profession” were forbidden under the Test Oath Cases ’ interpretation of the Bill of Attainder and Ex Post Facto Clauses. So, a disqualification is only unconstitutional where the officeholder’s term began prior to the disqualification’s enactment. “ [W]here the appointment [to office] has been made since the [disqualifying] act,” meanwhile, that “act” was not prohibited as a punitive bill of attainder or ex post facto law.

To reconcile Griffin with this reasoning, we would have to find that Section Three only operates punitively in tension with these clauses where it is applied to remove persons from offices already held in 1868. Thus, Chief Justice Chase’s rationale for finding Section Three non-self-executing would not apply to Trump.

As it so happens, the specificities of Chief Justice Chase’s Griffin opinion make a lot more sense with this additional gloss. Again and again, the Chief Justice urges us to “properly b[ear] in mind that the disqualification did not exist at the time that [the state judge in question] became judge.” In fact, “[m]ore than two years had elapsed after the date of his appointment, when the ratification of the fourteenth amendment . . . was officially promulgated . . . on July 28, 1868.” The Chief Justice’s overriding concern was clearly that “in all [the Southern] states all offices had been filled, before the ratification of the amendment, by citizens who, at the time of the ratification, were actively engaged in the performance of their several duties.” It was the removal of these citizens from offices already held that truly bothered the Chief Justice. Whether correct or not on the merits, it is this that appeared to him to truly be “punitive,” as well as to create the main negative “consequences” of voiding official acts made by these sitting officers. But none of this holds true for Trump.

Furthermore, every one of the Chief Justice’s other disqualification decisions — except for the most blatantly political outlier that is the trial of Jefferson Davis — coheres under this reasoning. None of the other cases involved the disqualification of someone from an office that they already held, and the Chief Justice accordingly declined to hold any of these an unconstitutional punishment. Only in Davis did the Chief Justice allow the defendant to claim that his officeholding disqualification was a punishment, despite Davis not actually holding any office.

Why then did the Chief Justice not only allow but positively feed Davis this defense? Because he — and nearly every other political actor that touched this case — wanted to get rid of it ! The literature is overwhelmingly clear that the Chief Justice had already spent three years avoiding Jefferson Davis’ trial like the plague . He needed Southern Democrats on his side. Sentencing their former leader to martyrdom would equally condemn his own presidential ambitions.

So, politics does rear its head in this, alternative story too. But rather than condemn the Chief Justice for years of politically directed inconsistency, it only asks that we accept his fundamental lapse in one, uniquely fraught — and uniquely “botched” — case. And that would be only human, even with the least ambitious of judges.

Perhaps we can let Chief Justice Chase off the hook for his mishmash of different holdings on disqualification. But whether we understand Griffin to follow a purely political defense of “States rights” or a narrow legal opposition to the “removal of a judge” from a position they already held, neither interpretation helps Trump’s argument that Section Three does not self-execute.

Our former President remains very much on the hook.

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Ex Post Facto Laws Under Article 20(1)

Table of Contents

EX POST FACTO LAWS UNDER ARTICLE 20(1)

Introduction :.

The ‘ ex-post-facto ’ is simply a law that is retrospective; that is law made after the doing of the thing to which it relates and retroacting upon it. Such laws are generally deemed unfair, because in the nature of the case, the person, or persons, involved in the behavior to which such a law relates, can had no notice, when the behavior took place, of such an after made law which applies to it.

The unfairness varies however, from cases of the doing of behavior things in reliance on legal technicalities; in other cases, supervening unforeseen events may give rise to equities which wipe any unfairness out; and the public welfare sometimes demands that legislation be passed which, in some measures disregards individuals strict antecedent rights.

Background:

Constitution of India has some provisions and protections for the rights of people who has already committed any crime or for the people whose trial is pending which is given under article 20 and article 22. At the time of constituting draft for article 20 constitutional advisor B.N. Rao pointed out that in every progressive country’s constitution one can find these three protections:

• Protection from Ex post facto laws
• Protection from Double jeopardy
• Protection from self-incrimination

Legislature can make any kind of laws it may be of prospective nature or of retrospective nature. Prospective law means which is applicable to the future or one which provides for, and regulate the future acts of men and does not interfere in any way with what has past. Whereas, retrospective laws deals with which that is to take effect, in point of time, before it was passed.

Article 20(1) – Protection against Ex Post Facto Law

Ex post facto is a Latin term meaning ‘from a thing done afterward’. It imposes penalties retrospectively, i.e. on acts already done and increases the penalty for such acts. The American Constitution also contains a similar provisions, prohibiting ex post facto law both by the central and the state legislative.

Protection from ex post facto laws basically close legislative from making retrospective laws in criminal matters. In other words, if any person have committed any offence today then he/she will be governed by the laws which are applicable by that day. If by certain time law changes he/she will not be affected by those laws. If certain act which is legal today may not be legal after some years because of due consequences. Therefore, person who has committed that legal act during the time which it was legal shall not be affected when it became illegal after years. Under the American law the prohibition applies even in respect of trial.

The guarantee in American constitution is thus wider than that under the Indian constitution. The protection of clause (1) of article 20 cannot be claimed in case of preventive detention or demanding security from a person. The prohibition is just or conviction and sentence only and not for prosecution and trial under a retrospective law. So, a trial under a procedure different from what it was at the time of the commission of the offence or by a special court constituted after the commission of the offence ipso facto be held unconstitutional.

Further 20(1) deals with penalty, which says if he/she has committed any offence today and it has some penalty he/she cannot be punished greater than that which he might have been subjected to, at the time of the commission of the offence.

• Kedar Nath v. State of West Bengal (AIR 1953 SC 404) in 1947 a person committed an offence and in 1947, it was law that for that offence a person shall be either punished with imprisonment or with fine or both. The act was amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence. The Supreme Court held that enhanced punishment could not be applicable to the act committed by the accused in 1947, hence set aside the additional fine imposed by the amendment act.
• Mohan Lal v. State of Rajasthan (AIR 2015 SC 2098) the Supreme Court held accused guilty under section 18 of NDPS act because he was in possession of the banned substance on date of enforcement of the act. He had both the ‘corpus’ and ‘animus’ which were necessary for possession under the law. Article 20(1) was held to be not applicable because the action of possession was not punishable with retrospective effect. The punishment was for possession of the prohibited article on or after a particular date on the enactment of the statute.
• Ratanlal v. State of Punjab (AIR 1965 444) a boy of 16 years of age was convicted for committing an offence of house trespass and outraging the modesty of a girl aged 7 years. The magistrate sentenced him for 6 months rigorous imprisonment and also imposed fine. After the judgment of magistrate the Probation of Offenders Act, 1958 came into force. It provided that a person below 21 years of age should not ordinarily be sentenced to imprisonment. The Supreme Court by a majority of 2 to 1 held that the rule of beneficial interpretation required that ex post facto law could be applied to reduce the punishment,. So an ex post facto law which is beneficial to the accused is not prohibited by clause (1) of article 20.

Therefore, the rule of beneficial construction requires that ex post facto law should be applied to mitigate the rigorous (reducing the sentence) of the previous law or the same subject. Such a law is not affected by article 20 (1). The principle is based on sound reason and common sense.

Author: Nishchal Kukade, Dr. Babahaseb Ambedkar College of Law, Nagpur Final Year Student

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Nuremberg: A Fair Trial? A Dangerous Precedent

"If in the end there is a generally accepted view that Nuremberg was an example of high politics masquerading as law, then the trial instead of promoting may retard the coming of the day of world law."

The Nuremberg War Trial has a strong claim to be considered the most significant as well as the most debatable event since the conclusion of hostilities. To those who support the trial it promises the first effective recognition of a world law for the punishment of malefactors who start wars or conduct them in bestial fashion. To the adverse critics the trial appears in many aspects a negation of principles which they regard as the heart of any system of justice under law.

This sharp division of opinion has not been fully aired largely because it relates to an issue of foreign policy upon which this nation has already acted and on which debate may seem useless or, worse, merely to impair this country's prestige and power abroad. Moreover, to the casual newspaper reader the long-range implications of the trial are not obvious. He sees most clearly that there are in the dock a score of widely known men who plainly deserve punishment. And he is pleased to note that four victorious nations, who have not been unanimous on all post-war questions, have, by a miracle of administrative skill, united in a proceeding that is overcoming the obstacles of varied languages, professional habits, and legal traditions. But the more profound observer is aware that the foundations of the Nuremberg trial may mark a watershed of modern law.

Before I come to the discussion of the legal and political questions involved, let me make it clear that nothing I may say about the Nuremberg trial should be construed as a suggestion that the individual Nuremberg defendants or others who have done grievous wrongs should be set at liberty. In my opinion there are valid reasons why several thousand Germans, including many defendants at Nuremberg, should either by death or by imprisonment be permanently removed from civilized society. If prevention, deterrence, retribution, nay even vengeance, are ever adequate motives for punitive action, then punitive action is justified against a substantial number of Germans. But the question is: Upon what theory may that action properly be taken?

The starting point is the indictment of October 18, 1945, charging some twenty individuals and various organizations, in four counts, with conspiracy, crimes against peace, war crimes, and crimes against humanity. Let me examine the offenses that are called in Count 3 of the indictment "war crimes," in the strict sense.

It is sometimes said that there is no international law of war crimes. But most jurists would agree that there is at least an abbreviated list of war crimes upon which the nations of the world have agreed. Thus in Articles 46 and 47 of the Hague Convention of 1907 the United States and many other countries accepted the rules that in an occupied territory of a hostile state "family honour and rights, the lives of persons, and private property, as well as religious conviction and practice, must be respected. Private property cannot be confiscated. Pillage is formally forbidden." And consistently the Supreme Court of the United States has recognized that rules of this character are part of our law. In short, there can be not doubt of the legal right of this nation, prior to the signing of a peace treaty to use a military tribunal for the purpose of trying and punishing a German if, as Count 3 charges, in occupied territory he murdered a Polish civilian, or tortured a Czech, or raped a Frenchwoman, or robbed a Belgian. Moreover, there is no doubt of the military tribunal's parallel right to try and to punish a German if he has murdered, tortured, or maltreated a prisoner of war.

In connection with war crimes of this sort there is only one question of law worth discussing here: Is it a defense to a soldier or civilian defendant that he acted under the order of a superior?

The defense of superior orders is, upon the authorities, an open question. Without going into details, it may be said that superior orders have never been recognized as a complete defense by German, Russian, or French law, and that they have not been so recognized by civilian courts in the United States or the British Commonwealth of Nations, but they tend to be taken as a complete excuse by Anglo-American military manuals. In this state of the authorities, if the International Military Tribunal in connection with a charge of a war crime refuses to recognize superior orders as a defense, it will not be making a retroactive determination or applying an ex post facto law. It will be merely settling an open question of law as every court frequently does.

The refusal to recognize the superior-order defense not only is not repugnant to the ex post facto principle, but is consonant with our ideas of justice. Basically, we cannot admit that military efficiency is the paramount consideration. And we cannot even admit that individual self-preservation is the highest value. This is not a new question. Just as it is settled that X is guilty of murder if, in order that he and Y, who are adrift on a raft, may not die of starvation, he kills their companion, Z; so a German soldier is guilty of murder if, in order that he may not be shot for disobedience and his wife tortured in a concentration camp, he shoots a Catholic priest. This is hard doctrine, but the law cannot recognize as an absolute excuse for a killing that the killer was acting under compulsion--for such a recognition not only would leave the structure of society at the mercy of criminals of sufficient ruthlessness, but also would place the cornerstone of justice on the quicksand of self-interest.

Of course, there always remains the fundamental separateness of the problem of guilt and the problem of treatment. And no one would expect a tribunal to mete out its severest penalty to a defendant who yielded to wrongdoing only out of fear of loss of his life or his family's.

In addition to "war crimes," the indictment, in Count 4, charges the defendants with "crimes against humanity." This count embraces the murder, torture, and persecution of minority groups, such as Jews, inside Germany both before and after the outbreak of war. It is alleged in paragraph X of the indictment that these wrongs "constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilized nations and were involved in and part of a systematic course of conduct."

I shall pass for the time being the last phrase just quoted, for that is merely a way of saying that the Nazis persecuted the minority German groups to harden the German will for aggression and to develop an issue that would divide other countries. In other words, the legal validity of that phrase rests upon the same considerations as the validity of the charge of "crimes against the peace."

I consider first the legal validity of the other phrases upon which is premised the charge that murdering, torturing, and persecuting German Jews and other non-Nazis from 1933 to 1939 as well as from 1939 to 1945 are crimes. And before I say anything of the legal question, let me make it abundantly clear that as a human being I regard these murders, tortures, and persecutions as being morally quite as repugnant and loathsome as the murders, tortures, and persecutions of the civilian and military personnel of American and Allied nations.

In paragraph X of the indictment, reference is first made to "international conventions." There is no citation of any particular international convention which in explicit words forbids a state or its inhabitants to murder its own citizens, in time either of war or of peace. I know of no such convention. And I, therefore, conclude that when the draftsman of the indictment used the phrase "international conventions" he was using the words loosely and almost analogously with the other phrase, "general principles of criminal law as derived from the criminal law of all civilized nations." He means to say that there exists, to cover the most atrocious conduct, a broad principle of universal international criminal law which is according to the law of most penal codes and public sentiment in most places, and for violations of which an offender may be tried by any new court that one or more of the world powers may create.

If that were the only basis for the trial and punishment of those who murdered or tortured German citizens, it would be a basis that would not satisfy most lawyers. It would resemble the universally condemned Nazi law of June 28, 1935, which provided: "Any person who commits an act which the law declares to punishable or which is deserving of penalty according to the fundamental conceptions of the penal law and sound popular feeling, shall be punished." It would fly straight in the face of the most fundamental rules of criminal justice--that criminal laws shall not be ex post facto and that there shall be *nullum crimen et nulla poena sine lege*--no crime and no penalty without an antecedent law.

The feeling against a law evolved after the commission of an offense is deeply rooted. Demosthenes and Cicero knew the evil of retroactive laws: philosophers as diverse as Hobbes and Locke declared their hostility to it; and virtually every constitutional government has some prohibition of ex post facto legislation, often in the very words of Magna Carta, or Article I of the United States Constitution, or Article 8 of the French Declaration of Rights. The antagonism to ex post facto laws is not based on a lawyer's prejudice encased in a Latin maxim. It rests on the political truth that if a law can be created after an offense, then power is to that extent absolute and arbitrary. To allow retroactive legislation is to disparage the principle of constitutional limitation. It is to abandon what is usually regarded as one of the essential values at the core of our democratic faith.

But, fortunately, so far as concerns murders of German minorities, the indictment was not required to invent new law. The indictment specifically mentions "internal penal laws." And these laws are enough in view of the way the question would arise in a criminal proceeding.

Under universally accepted principles of law, an occupying belligerent power may and indeed often does establish its own tribunals to administer the domestic law of the occupied country for the inhabitants. Thus if Adolph killed Berthold before the American Army occupied Munich, it would be normal for the United States government to set up a military tribunal to try and punish Adolph.

But suppose Adolph raised as a defense the contention that he was acting pursuant to orders form superiors which were the law of Germany. If that defense were raised, and if we assume (contrary to what some German jurists tell us) that in Germany there were on the statute books pertinent exculpatory laws, nonetheless under well-known principles of German law, going back to the middle Ages and differing from current Anglo-American theories, the superior order could be disregarded by a court applying German law, on the ground that it was so repugnant to "natural law" as to be void. That is, perhaps a German tribunal or one applying German law can disregard an obviously outrageous statute or executive order as offensive to natural law just as the Supreme Court of the United States can disregard a statute or executive order as offensive to the United States Constitution.

But further suppose that Adolph raised as a defense the point that the wrong was so old as to be barred by some statute of limitations. If there is such a statute in Germany, the limitation may be set aside without involving any violation of the ex post facto principle. As our own Supreme Court has pointed out, to set aside a statue of limitation is not to create a new offense.

I turn now to Count 2 of the indictment, which charges "crimes against peace." This is the count that has attracted greatest interest. It alleges that the defendants participated "in the planning, preparation, initiation and waging of wars of aggression, which were also wars in violation of international treaties, agreements and assurances."

This charge is attacked in many quarters on the ground it rests on ex post facto law. The reply has been that in the last generation there has accumulated a mounting body of international sentiment which indicates that wars of aggression are wrong and that a killing by a person acting on behalf of an aggressor power is not an excusable homicide. Reference is made not only to the Briand-Kellogg Pact of August 27, 1928, but to deliberations of the League of Nations in 1924 and subsequent years--all of which are said to show an increasing awareness of a new standard of conduct. Specific treaties outlawing wars of aggression are cited. And, having regard to the manner by which all early criminal law evolves and the manner by which international law grows, it is claimed that now it is unlawful to wage an aggressive war and it is criminal to aid in preparing for such a war, whether by political, military, financial, or industrial means.

One difficulty with that reply is that the body of growing custom to which reference is made is custom directed at sovereign states, not at individuals. There is no convention or treaty which places obligations explicitly upon an individual not to aid in waging an aggressive war. Thus, from the point of view of the individual, the charge of a "crime against peace" appears in one aspect like a retroactive law. At the time he acted, almost all informed jurists would have told him that individuals who engaged in aggressive war were not in the legal sense criminals.

Another difficulty is the possible bias of the Tribunal in connection with Count 2. Unlike the crimes in Counts 3 and 4, Count 2 charges a political crime. The crime which is asserted is tried not before a dispassionate neutral bench, but before the very persons alleged to be victims. There is not even one neutral sitting beside them.

And what is most serious is that there is doubt as to the sincerity of our belief that all wars of aggression are crimes. A question may be raised whether the United Nations are prepared to submit to scrutiny the attack of Russia on Poland, or on Finland or the American encouragement to the Russians to break their treaty with Japan. Every one of these actions may have been proper, but we hardly admit that they are subject to international judgment.

These considerations make the second count of the Nuremberg indictment look to be of uncertain foundation and uncertain limits. To some the count may appear as nothing more than the ancient rule that the vanquished are at the mercy of the victor. To others it may appear as the mere declaration of an always latent doctrine that the leaders of a nation are subject to outside judgment as to their motives in waging war.

The other feature of the Nuremberg indictment is Count 1, charging a "conspiracy." Paragraph III of the indictment alleges that the "conspiracy embraced the commission of Crimes against Peace;...it came to embrace the commission of War Crimes...and Crimes against Humanity."

In international as well as in national law there may be for almost any crime what the older lawyers would have called principal offenders and accessories. If Adolph is determined to kill Sam, and talks the matter over with Berthold, Carl, and Dietrich, and Berthold agrees to borrow the money to buy a pistol, and Carl agrees to make a holster for the pistol, and all of them proceed as planned and then Adolph gives the pistol and holster to Dietrich, who goes out alone and actually shoots Sam without excuse, then, of course, Adolph, Berthold, Carl, and Dietrich are all guilty of murder. They should not be allowed to escape with the plea Macbeth offered for Banquo's murder, "Thou canst not say I did it."

If the conspiracy charge in Count 1 meant no more than that those are guilty who plan a murder and with knowledge finance and equip the murderer, no one would quarrel with the count. But it would appear that Count 1 meant to establish some additional separate substantive offense of conspiracy. That is, it asserts that there is in international law a wrong which consists in acting together for an unlawful end, and that he who joins in that action is liable not only for what he planned, or participated in, or could reasonably have foreseen would happen, but is liable for what every one of his fellows did in the course of the conspiracy. Almost as broad a doctrine of conspiracy exists in municipal law.

But what is the basis for asserting so broad a substantive crime exists in the international law? Where is the treaty, the custom, the academic learning on which it is based? Is this not a type of "crime" which was first described and defined either in London or in Nuremberg sometime in the year 1945?

Aside from the fact that the notion is new, is it not fundamentally unjust? The crime of conspiracy was originally developed by the Court of Star Chamber on the theory that any unlicensed joint action of private persons was a threat to the public, and so if the action was in any part unlawful it was all unlawful. The analogies of the municipal law of conspiracy therefore seem out of place in considering for international purposes the effect of joint political action. After all, in a government or other large social community there exists among the top officials, civilian and military, together with their financial and industrial collaborators, a kind of over-all working arrangement which may always be looked upon, if its invidious connotation be disregarded, as a "conspiracy." That is, government implies "breathing together." And is everyone who, knowing the purposes of the party in power, participates in government or joins with officials to be held for every act of the government?

To take a case which is perhaps not so obvious, is everyone who joins a political party, even one with some illegal purposes, to be held liable to the world for the action that every member takes, even if that action is not declared in the party platform an was not known to or consented to by the person charged as a wrongdoer? To put upon any individual such responsibility for action of the group seems literally to step back in history to a point before the prophet Ezekiel and to reject the more recent religious and democratic teachings that guilt is personal.

Turning now from the legal basis of the indictment, I propose briefly to consider whether, quite apart from legal technicalities, the procedure of an international military tribunal on the Nuremberg pattern is a politically acceptable way of dealing with the offenders in the dock and those others whom we may legitimately feel should be punished.

The chief arguments usually given for this quasi-judicial trial are that it gives the culprits a chance to say anything that can be said on their behalf, that it gives both the world today and the world tomorrow a chance to see the justice of the Allied cause and the wickedness of the Nazis', and that it sets a firm foundation for a future world order wherein individuals will know that if they embark on schemes of aggression or murder or torture or persecution they will be severely dealt with by the world.

The first argument has some merit. The defendants, after hearing and seeing the evidence against them, will have an opportunity without torture and with the aid of counsel to make statements on their own behalf. For us and for them this opportunity will make the proceeding more convincing. Yet the defendants will not have the right to make the type of presentation that at least English-speaking persons have thought the indispensable concomitant of a fair trial. No one expects that Ribbentrop will be allowed to summon Molotov to disprove the charge that in invading Poland Germany started an aggressive war. No one anticipates that the defense, if it has the evidence, will be given as long a time to present its evidence as the prosecution takes. And there is nothing more foreign to those proceedings than either the presumption that the defendants are innocent until proved guilty or the doctrine that any adverse public comment on the defendants before the verdict is prejudicial to their receiving a fair trial. The basic approach is that these men should not have a chance to go free. And that being so, they ought not to be tried in a court of law.

As to the second point, one objection is purely pragmatic. There is a reasonable doubt whether this kind of trial, despite the voluminous and accessible record it makes, persuades anyone. It brings out new evidence, but does it change men's minds? Most reporters say that the Germans are neither interested in nor persuaded by these proceedings, which they regard as partisan. They regard the proceedings not as marking a rebirth of law in Central Europe but as a political judgment on their former leaders. The same attitude may prevail in future because of the departure from accepted legal standards.

A more profound objection to the second point is that to regard a trial as a propaganda device is to debase justice. To be sure, most trials do and should incidentally educate the public. Yet any judge knows that if he, or counsel, or the parties regard a trial primarily as a public demonstration, or even as a general inquest, then there enter considerations which would otherwise be regarded as improper. In a political inquiry and even more in the spread of propaganda, the appeal is likely to be to the unreflecting thought and the deep-seated emotions of the crowd untrammeled by any fixed standards. The objective is to create outside the courtroom a desired state of affairs. In a trial the appeal is to the disinterested judgment of reasonable men guided by established precepts. The objective is to make inside the courtroom a sound disposition of a pending case according to settled principles.

The argument that these trials set a firm foundation for a future world legal structure is perhaps debatable. The spectacle of individual liability for a world wrong may lead to future treaties and agreements specifying individual liability. If this were the outcome and if, for example, with respect to wars of aggression, war crimes, and use of atomic energy the nations should agree upon world rules establishing individual liability, then this would be a great gain. But it is by no means clear that this trial will further any such program.

At the moment, the world is most impressed by the undeniable dignity and efficiency of the proceedings and by the horrible events recited in the testimony. But, upon reflection, the informed public may be disturbed by the repudiation of widely accepted concepts of legal justice. It may see too great a resemblance between this proceeding and others which we ourselves have condemned. If in the end there is a generally accepted view that Nuremberg was an example of high politics masquerading as law, then the trial instead of promoting may retard the coming of the day of world law.

Quite apart form the effect of the Nuremberg trial upon the particular defendants involved, there is the disturbing effect of the trial upon domestic justice here and abroad. "We but teach bloody instructions, which being taught, return to plague the inventor." Our acceptance of the notions of ex post facto law and group guilt blunt much of our criticism of Nazi law. Indeed our complaisance may mark the beginning of an age of reaction in constitutionalism in particular and of law in general. Have we forgotten that law is not power, but restraint on power?

If the Nuremberg trial of the leading Nazis should never have been undertaken, it does not follow that we should not have punished these men. It would have been consistent with our philosophy and our law to have disposed of such of the defendants as were in the ordinary sense murderers by individual, routine, undramatic, military trials. This was the course proposed in the speeches of the Archbishop of York, Viscount Cecil, Lord Wright, and others in the great debate of March 20, 1945, in the House of Lords. In such trials the evidence and the legal issues would have a stark simplicity and the lesson would be inescapable.

For those who were not chargeable with ordinary crimes only with political crimes such as planning an aggressive war, would it not have been better to proceed by an executive determination--that is, a proscription directed at certain named individuals? The form of the determination need not have been absolute on its face. It might have been a summary order reciting the offense and allowing the named persons to show cause why they should not be punished, thus giving them a chance to show any mistake of identification or gross mistake of fact.

There are precedents for such executive determination in the cases of Napoleon and of the Boxer rebels. Such a disposition would avoid the inevitably misleading characteristics of the present proceedings, such as a charge presented in the form of an "indictment," the participation of celebrated civil judges and the legal formalities of rulings on evidence and on law. It is these characteristics which may make the Nuremberg trial such a potential danger to law everywhere. Moreover, if it were generally felt that we ought not to take a man's life without the form of a trial, then the executive determination could be limited to imprisonment. The example of Napoleon shows that our consciences would have no reason to be disturbed about the removal from society and the permanent detention of irresponsible men who are a threat to the peace of the world.

To be sure, such an executive determination is ex post facto. Indeed, it is a bill of attainder. To be sure it is also an exhibition of power and not of restraint. But its very merit is its naked and unassumed character. It confesses itself to be not legal justice but political. The truthful facing of the character of our action would make it more certain that the case would not become a precedent in domestic law.

As Lord Digby said in 1641 regarding the Strafford bill of attainder, "There is in Parliament a double Power of Life and Death by Bill, a Judicial Power, and legislative; the measure of the one, is what's legally just; of the other, what is Prudentially and Politickly fit for the good and preservation of the whole. But these two, under favour, are not to be confounded in Judgment: We must not piece up want of legality with matter of convenience, nor the defailance of prudential fitness with a pretence of Legal Justice."

This emphasis on procedural regularity is not legalistic or, as it is sometimes now said, conceptualistic. If there is one axiom that emerges clearly from the history of constitutionalism and from the study of any bill of rights or any charter of freedom, it is that procedural safeguards are the very substance of the liberties we cherish. Not only the specific guarantees with respect to criminal trials, but the general promise of "due process of law," have always been phrased and interpreted primarily in their procedural aspect. Indeed it hardly lies in the mouth of any supporter of the Nuremberg proceedings to disparage such procedural considerations; for may it not be said that the reason that the authors of those proceedings cast them in the form of a trial was to persuade the public that the customary safeguards and liberties were preserved?

It is against this deceptive appearance, big with evil consequences for law everywhere, that as a matter of civil courage all of us, judges as well as lawyers and laymen, however silent we ordinarily are, ought to speak out. It is for their silence on such matters that we justly criticize the Germans. And it is the test of our sincere belief in justice under law never to allow it to be confused with what are merely our interest, our ingenuity, and our power.

Article I, Section 10, Clause 1:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

An ex post facto law is a law that imposes criminal liability or increases criminal punishment retroactively. 1 Footnote See, e.g. , Calder v. Bull, 3 U.S. 386, 391 (1798) ; Locke v. New Orleans, 71 U.S. 172, 173 (1867) . Two separate clauses of the Constitution, Article I, Sections 9 and 10, ban enactment of ex post facto laws by the Federal Government and the states, respectively. 2 Footnote For the prohibition on federal ex post facto laws, see U.S. Const. art. I, § 10, cl. 1 ; see also ArtI.S9.C3.3.1 Overview of Ex Post Facto Laws. The Supreme Court has cited cases interpreting the federal Ex Post Facto Clause in challenges under the state clause, and vice versa, treating the two clauses as having the same scope. 3 Footnote See, e.g. , Peugh v. United States, 569 U.S. 530, 532–33 (2013) (case construing federal clause citing case construing state clause); Reetz v. Michigan, 188 U.S. 505, 510 (1903) (case construing state clause citing case construing federal clause). The Court’s decisions interpreting both clauses are therefore discussed collectively in greater detail in the Article I, Section 9 essays on the federal Ex Post Facto Clause. 4 Footnote See ArtI.S9.C3.3.1 Overview of Ex Post Facto Laws. In particular, those essays on federal and state ex post facto laws discuss Supreme Court jurisprudence addressing imposing or increasing punishments, procedural changes, employment qualifications, retroactive taxes, inapplicability to judicial decisions, and deportation and related issues.

The Supreme Court has interpreted the Ex Post Facto Clauses to limit only legislation that is criminal or penal in nature, 5 Footnote E.g. , Calder , 3 U.S. at 389 ; Watson v. Mercer, 33 U.S. 88, 110 (1834) ; see also ArtI.S9.C3.3.4 Ex Post Facto Law Prohibition Limited to Penal Laws. though the Court has also made clear that “the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal.” 6 Footnote Burgess v. Salmon, 97 U.S. 381, 385 (1878) . In addition, the Court has uniformly applied the prohibition on ex post facto legislation only to laws that operate retroactively. 7 Footnote E.g. , Calder , 3 U.S. at 389 ; see also ArtI.S9.C3.3.3 Retroactivity of Ex Post Facto Laws. In the 1798 case Calder v. Bull , the Court enumerated four ways in which a legislature may violate the Ex Post Facto Clauses’ prohibition on imposing retroactive criminal liability: (1) making criminal an action taken before enactment of the law that was lawful when it was done; (2) increasing the severity of an offense after it was committed; (3) increasing the punishment for a crime after it was committed; and (4) altering the rules of evidence after an offense was committed so that it is easier to convict an offender. 8 Footnote Calder , 3 U.S. at 390 . The Ex Post Facto Clauses are related to other constitutional provisions that limit retroactive government action, including the federal and state Bill of Attainder Clauses, the Contract Clause, and the Due Process Clauses. 9 Footnote See, e.g. , Fletcher v. Peck, 10 U.S. 87, 138–39 (1810) ; cf. Landgraf v. USI Film Prods., 511 U.S. 244, 267 (1994) (the restrictions that the Constitution places on retroactive legislation “are of limited scope” and “[a]bsent a violation of one of those specific provisions,” when a new law makes clear that it is retroactive, the arguable “unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give [that law] its intended scope” ).

Multiple Supreme Court decisions have held that the Ex Post Facto Clauses apply only to federal and state legislation, not to judicial decisions. 10 Footnote E.g. , Frank v. Magnum, 237 U.S. 309, 344–45 (1914) ; cf. Rogers v. Tennessee, 532 U.S. 451, 456–60 (2000) (holding that “limitations on ex post facto judicial decisionmaking are inherent in the notion of due process,” but the due process limitation on courts is not identical to the ex post facto prohibition that applies to legislation); see also ArtI.S9.C3.3.11 Ex Post Facto Prohibition and Judicial Decisions. The state Ex Post Facto Clause also applies to state constitutional amendments. In Cummings v. Missouri , the Court considered a challenge to a post-Civil War amendment to the Missouri Constitution that required persons engaged in certain professions to swear an oath that they had never been disloyal to the United States. 11 Footnote 71 U.S. 277 , 280–81 (1866). In holding that the amendment violated the state Ex Post Facto Clause, the Court looked to the Clause’s language providing that “'no State'—not no legislature of a State , but that ' no State '—should pass any ex post facto law,” and concluded that “[i]t can make no difference, therefore, whether such legislation is found in a constitution or in a law of a State; if it be within the prohibition it is void.” 12 Footnote Id. at 307–08. For additional discussion of Cummings , see ArtI.S9.C3.3.9 Employment Qualifications and Ex Post Facto Laws.

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The Ex Post Facto Laws, Essay Example

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The ex post facto laws state than an individual cannot be accused of a crime if they have committed the crime prior to the time in which the law was written. After reading the case of John Doe I and John Doe II with the consideration of the information that was provided concerning Alaska law, it appears that the state’s ability to require sexual offenders to register, even if they committed the crime prior to the law existing is a case that should be brought to the Supreme Court. Cases in which more than one state is involved, such as the transfer of a registered sex offender from a state with the existence of this requirement prior to the commitment of the crime to a state where this is not the case, should be considered as a multi-state policy. Therefore, it is important for the Supreme Court to meet to determine whether the child protective laws an individual was subject to in one state is applicable to a new state. In addition, there should be a discussion to determine whether a national sex registry should be extended to become a national policy.

If the Supreme Court rules that each individual state must deal with this issue on their own, then Alaska has no right to subject sex offenders to the registration law if they committed the crime before the implementation of the law in the specific state. Since the sex offenders were not aware that the law was in place during the time that the crime was committed, they cannot be held to the same standards as individuals who committed the crime after the law was written and were aware of its existence. This is an important example of preventing the creation of ex post facto laws because it demonstrates that it is essential to uphold the legal rights of criminals, even if they have committed a serious crime.

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Supreme Court overturns ex-mayor’s bribery conviction, narrowing the scope of public corruption law

The Supreme Court has overturned the bribery conviction of a former Indiana mayor, the latest in a series of decisions narrowing the scope of federal public corruption law

WASHINGTON — The Supreme Court overturned the bribery conviction of a former Indiana mayor on Wednesday, the latest in a series of decisions narrowing the scope of federal public corruption law.

The high court’s 6-3 opinion along ideological lines found the law criminalizes bribes given before an official act, not rewards handed out after.

“Some gratuities can be problematic. Others are commonplace and might be innocuous,” Justice Brett Kavanaugh wrote. The lines aren’t always clear, especially since many state and local officials have other jobs, he said.

The high court sided with James Snyder , a Republican who was convicted of taking $13,000 from a trucking company after prosecutors said he steered about $1 million worth of city contracts to the company.

In a sharply worded dissent joined by her liberal colleagues, Justice Ketanji Brown Jackson said the distinction between bribes and gratuities ignores the wording of the law aimed at rooting out public corruption.

“Snyder’s absurd and atextual reading of the statute is one that only today’s court could love,” she wrote.

The decision continues a pattern in recent years of the court restricting the government’s ability to use broad federal laws to prosecute public corruption cases. The justices also overturned the bribery conviction of former Virginia Gov. Bob McDonnell in 2016 and sharply curbed prosecutors’ use of an anti-fraud law in the case of ex-Enron CEO Jeffrey Skilling in 2010.

The decision also comes as the Supreme Court itself has faced sustained criticism over undisclosed trips and gifts from wealthy benefactors to some justices that led the high court to adopt its first code of ethics , though it lacks an enforcement mechanism.

Snyder was elected mayor of Portage, a small Indiana city near Lake Michigan, in 2011 and was removed from office when he was first convicted in 2019. He has maintained his innocence, saying the money he received was payment for consulting work. His attorneys said that prosecutors hadn’t proved there was a “quid pro quo” exchange agreement before the contracts were awarded.

The Justice Department countered that the law was clearly meant to cover gifts “corruptly” given to public officials as rewards for favored treatment.

Kavanaugh, writing for the high court majority, disagreed, finding that interpretation would “create traps for unwary state and local officials” and would “subject 19 million public officials to a new regulatory regime,” though he said a gratuity could be unethical or illegal under other laws.

Follow the AP’s coverage of the U.S. Supreme Court at https://apnews.com/hub/us-supreme-court .