“No Bill of Attainder or ex post facto Law shall be passed.” I think we often miss the importance of that simple sentence in our constitution. Imagine what our legal system might be like without it. You could drive the speed limit and then be charged for breaking it because the limit was changed later. After all, if it is unsafe to drive 65 today, it must also have been unsafe last month when you did it. Or maybe you paid your taxes, but then the legislature retroactively raised tax rates. Too bad. Why should we care if you already spent the money you had left after paying the first time? You still owe the new taxes.
If laws could be retroactively changed in that manner we would not know how to act. Would anyone invest in a business and employ people if the government could tell him that he owes half his investment money in retroactive taxes? Would anyone build houses if the building code could be changed retroactively?
Those examples may seem a bit overblown, but we do have what amounts to ex post facto laws right now. The courts have developed a bad habit of changing the requirements and allowing law suits for actions considered perfectly acceptable when they were done. For example in the case of Ferebee v. Chevron Chemical Co., a farm worker died after misusing the herbicide Parquat. The chemical was labeled as mandated by the EPA. However the courts held that the labeling was inadequate even though Chevron had no choice in how it was worded. The court effectively said that what had been legal (and in fact government mandated) before Ferebee's death was now retroactively not allowed. Chevron was forced to pay a judgment for actions quite acceptable when they were done.
Another case involved a suspect who was given his Miranda warning and signed a “Consent to Speak” form. He confessed to robbing several stores but asked the officer not to write it down. After his conviction, the District of Columbia Circuit Court of Appeals sent the case back to the trial court, claiming that the suspect thought his unwritten confession would not count. They said that gave reason to doubt that he “intelligently and knowingly waived his constitutional right to remain silent.” That was a clear case of the court retroactively changing requirements; the officers involved had followed previous court direction to the letter. Though ultimately the conviction stood, Judge David Bazelon still dissented, claiming that the suspect should have been acquitted because he didn't have an “equal chance” with the smarter criminals.
How can police hope to follow the rules if those rules keep changing retroactively? How can a chemical company follow retroactively changed rules? This sort of thing causes serious confusion, adversely affecting both our economic and private lives. Criminals will be released to continue menacing the public and companies will fear to offer products we want at prices we are willing to pay. Jobs will be lost as those employers cut back on operations.
All such legal uncertainties are contrary to the rule of law, replacing it with the rule of judges, acting on their own ideas and whims. That is very close to a police state. It becomes a rule of the powerful, acting on what they prefer or believe instead of on settled rules.
In fact judge-made law is ex post facto by its very nature. Nobody can know ahead of time what the judge will decide. The decision comes not only after the action is performed, but months, sometimes years, after. Only after the case goes through the legal process will people know if their actions are going to be retroactively declared illegal.*
While legislation can be known before we break the law, we have no such advantage with judicial rulings. If your company released a new product last year and the judge decides today that it was illegal, you are held accountable just as though you had done it knowingly after the ruling.
It is said that ignorance of the law is no excuse. However in the case of those judicial rulings, the decision has not yet been made. There is no way to know if we are effectively breaking the law. That is an important reason that judges should restrict their actions to settled law, not seek to make new law. Even if the new ruling seems like a good idea, it is not up to judges to impose good ideas on the country. That is the prerogative of the legislative branch. Legislators, either state or national, can change the law in such a manner that people know what the law is and can thus obey it.
We need a rule of law, and that law has to be known to the people before it becomes effective. Judges as well as legislators should follow that rule.
*I am aware that in most cases those actions will not be considered criminal offenses so perhaps not technically “illegal.” However the effect is the same. There is punishment for previously acceptable actions, and uncertainty about how to live our lives and run our businesses.
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