I was alerted by one of our former Fellows, two days ago, to Clarence Thomas’s concurring opinion in Ellingburg v. U.S. on ex post facto laws.
James Wilson and Oliver Ellsworth thought it too embarrassing to put those clauses on ex post facto laws in the text of the Constitution because every lawyer would know that it’s one of those deep principles of natural law that would be part of anything calling itself a constitutional order or the “rule of law.” Our former Fellow thought that Justice Thomas’s opinion confirmed the value of having it in the text. This is how Justice Thomas began:
“The Constitution twice prohibits ex post facto laws. As to the Federal Government, it provides that ‘No Bill of Attainder or ex post facto Law shall be passed.’ Art. I, §9, cl. 3. As to the States, it provides that ‘No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.’ Art. I, §10, cl. 1. In its general sense, a law is ex post facto—meaning ‘after the fact’— when it applies retroactively to conduct that occurred before the law was enacted.”
Justice Thomas’s concurrence posed a gorgeous question because it really opened into the fuller argument that I made on the Ex Post Facto Clauses in the first chapter of my book Constitutional Illusions & Anchoring Truths. Rather than showing the value of having that principle stated in the text, we are led to the recognition of why the judges keep finding themselves appealing in effect to the natural law as they try to apply that principle to cases.
For instead of countering anything that James Wilson (and I said) about the principle on ex post facto laws, this whole discussion confirms the argument I made precisely on this issue in Constitutional Illusions. Justice Thomas was quite on the right track, but he didn’t take it all of the way.
Justice Thomas recognized that, for many of the Founders, the principle on ex post facto laws was not plausibly confined to criminal matters. And that is the way he reads Calder v. Bull. In Fletcher v. Peck, John Marshall found the deeper ground of the argument, not in the Contracts Clause, but in the fact that the Contracts Clause could be drawn deductively—with the force of a syllogism– from that deeper argument on ex post facto laws. The grant of lands here, legitimate when done, was pronounced now as illegitimate by the legislature of Georgia. But Marshall regarded the principle on ex post facto laws as one of the truly deep principles of the law, a principle that would have to hold in any constitutional order (regardless, we might say, of whether it was made explicit in the positive law of the Constitution). And with all of that in place, Marshall could go on to argue in this way: that Georgia is a great State, part of the Union, but even if Georgia were a separate sovereign state, outside the Union, outside the Constitution—outside Article I, Section 10, the Contracts Clause—this law would still be wrong because it’s wrongness is grounded in a principle whose validity does not depend at all on being mentioned in the text of the Constitution.
But it was recognized quite early that if the principle of ex post facto laws were applied generally, even beyond the criminal law, it could come into play widely to hamstring the policies of the government. We may raise taxes and punish people, with heavier penalties, for earnings that were not thought wrongful when earned. Justice Thomas takes the line, as I’ve argued, that civil penalties may be staggering and important—they pronounce a wrong to have been done and level a serious penalty. But what Justice Thomas misses is precisely the deeper argument made in my book Beyond the Constitution and in Constitutional Illusions.
Let me recall the line of argument. The rights to life, liberty and property do not mean that liberties may not be rightly restricted, property not rightly taken in taxation, lives not put rightly at risk in defending the country (or taken in capital punishment). It’s the same with the right to speech, and as Justice Scalia recognized, the right to bear arms. The question then in all cases is whether our liberties are restricted, our property or our lives taken, our speech restricted, or our freedom to make use of arms restricted—whether any of these things is being restricted with or without justification. As I mentioned in Beyond the Constitution, we could have added to our current Bill of Rights my right not to have the trunk of my car searched, my luggage at the airport searched, my right not to have my blood taken after I’ve been in an accident, likely to be driving under the influence of alcohol—my right not to have any of these things done without good reasons, without a justification. In other words: listing the items does nothing to explain what will always remain more decisive: the principles we are using, the standards of judgment we bring into play, in grasping the reasons that can really stand as a justification for the restriction. And what is it that we take as the source of the body of principles that we apply here? May I suggest: the body of principles I began to adumbrate in that book called First Things The principles that arise out of the “logic of morals itself.”
And so, whether ex post facto laws are mentioned in the text of the Constitution does not relieve us of the serious explorations that the judges have to make in facing up to the real question: whether the penalty is criminal civil, is this an ex post facto law that can be judged as justified or unjustified? Some cases:
Congress passed a law in the 70’s that barred from the United States people who had been engaged in war crimes in Europe from1933-1945. Of all people that law barred from the country Kurt Waldheim, the former Secretary General of the United States. Following the passage of that law, one might imagine Waldheim thinking to himself “Ah, if I’d only known that I could be barred from the best restaurants in New York in the 70’s, I would have behaved myself in the Balkans in the 40’s” This situation satisfies Clarence Thomas’s test: it was considered a “public” wrong to be pronounced in the law, with a punishment attached. And yet we have come to regard that yet as a wrongful ex post facto law.
In Ex Parte Garland (1867), the Court struck down an act of Congress barring from practice at the Supreme Court lawyers who had been part of the Confederacy. Justice Field thought this was an ex post facto law. The dissenters argued, powerfully in my judgment, that any lawyer should have known. Known what?: that it was deeply wrongful to overthrow an elected government in the United States.
The law of torts persistently works in an ex post facto way: Recall the first man hit with an award for giving herpes to his partner, when there were no statutes or judicial decisions to pronounce that act to be a wrong. And yet we expect him to understand that, if he knew what he had and how it was transmitted, did he not bear some obligation to warn a partner?
But two other cases truly stand out to me:
The case of Citronelle Mobile and Gulf Oil. At a time in the 70’s when price controls were off on the sale of oil, Citronelle thought itself rightly free to sell its oil to Gulf Oil for the market price, $13 per barrel. But then Congress slapped controls back on, put the price at $5.40 per barrel—and made it retroactive! And so now Gulf Oil was suing for a refund—and succeeding. That judgement was upheld in the courts, but I’d argue that this was a retrospective act, an ex post facto law, that we can judge as quite clearly unjustified.
But then the one that truly takes the cake, the case of Jose Ramon Morales. He killed his girlfriend in 1971, but while he was in prison a 75-year old woman fell in love with him. When he got out of prison, they were married. Three months later she disappeared. Her severed hand was found, but never her body. Under California law he was sentenced to 15 years to life. As I said in the book, he should have been grateful that he was not drawn and quartered. But then an ex post facto case arose: The legislature changed the rules for appealing for parole. Instead of allowing those appeals every year, they were allowed only after three years in serious cases where men were convicted of “more than one offense that involves the taking of a life.” What was the ex post facto problem? For with this move the legislature had deepened the penalty for Morales’s crime after the fact. The Ninth Circuit was crazy enough to sustain that claim, but the Supreme Court overturned it. And yet!: Justices Stevens and Souter in dissent wanted to take this argument seriously. The takeaway: that there were reasons for regarding this as an ex post facto law, a tightening of the penalty after the fact, that was amply justified for a horrific crime of this kind. But the fact that Souter and Stevens were still willing to consider this a live issue serves to confirm anew that the mention of ex post facto laws in the text of the Constitution does nothing to help the judges reason through to those principles of judgment they will ever need in judging the distinctions between the ex post facto laws that are justified or unjustified.
For some reason I’m drawn back to Bertrand Russell’s delicious observation that the keeper who feeds his chickens every day will one wring their necks or slaughter them. All of which showed, he said, that it would be quite useful for chickens to have more than inductive knowledge. Clarence Thomas did nicely in Ellingburg, but may I say he might have done an even more superlative job if he had reached that further step; to those principles of moral reasoning (whisper: that reasoning of the Natural Law) that give us the grounds of judging between the ex post laws that are justified or unjustified, rightful or wrongful.
