Earlier this month at the blog “Public Discourse,” Amherst College Professor Hadley Arkes wrote:
[T]he Constitution bars ‘ex post facto laws.’ But that provision was added over the objection of James Wilson and Oliver Ellsworth. They thought there was no need to set down this principle, for anyone familiar with the law would know that this principle on ex post facto laws was one of those deep principles of lawfulness. It would be part of any regime of law, regardless of whether it was set down in the Constitution.
Does the losing argument of Wilson and Ellsworth reflect a proper interpretation of the Constitution, as Professor Arkes suggests? I do not think so.
It is true that both Wilson and Ellsworth opposed an ex post fact clause applicable against Congress. Wilson said that including such a clause would, “proclaim that we are ignorant of the first principles of legislation, or are constituting a government which will be so.” And, Ellsworth said that, “ex-post-facto laws were void of themselves. It cannot be necessary to prohibit them.” But Ellsworth and Wilson lost that argument, and the clause was included as a restriction against Congress.
Ellsworth himself soon acknowledged that the prohibition against ex post fact laws “was thought necessary as a security.” Ellsworth made that acknowledgment in his official communication presenting the draft Constitution to the Governor of Connecticut. Therefore, one cannot plausibly claim that the prohibition was included in the Constitution to accomplish no real purpose, and without any real effect.
It is worth keeping in mind that the Constitution contains two different ex post facto clauses: first a clause applicable to Congress (art. I, sec. 9, cl. 3), and second a clause applicable to the states (art. I, sec. 10, cl. 1). Although Wilson opposed the first clause as superfluous, the very next day the second clause came under consideration, and then Wilson defended it, saying that “retrospective interferences only are to be prohibited.” After Wilson spoke, the convention obligingly adopted the ex post facto clause applicable against the states. So the record about Ellsworth and Wilson on this issue is more complex than one might think, and it is full of other statements by these two that might favor one side or the other of the issue.
Of course, private remarks by Wilson and Ellsworth pale in significance compared to public explanations during the ratification debates. Alexander Hamilton, for example, publicly made very clear, in Federalist 84, that “the prohibition of ex post facto laws, and of titles of nobility, to which we have no corresponding provisions in our [New York state] constitution, are perhaps greater securities to liberty and republicanism than any it contains.” Keep in mind that New York state’s constitution at that time already declared that "no member of this State shall be disfranchised, or deprived of any the rights or privileges secured to the subjects of this State by this constitution, unless by the law of the land, or the judgment of his peers." The conclusion is inescapable that the ex post facto clauses were adopted in the federal Constitution because they were deemed necessary and meaningful, rather than being redundant to deep principles of lawfulness. As the U.S. Supreme Court said in Hurtado v. California, 110 U.S. 516, 531 (1884), “ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land."
I might add that there is nothing inherently bad about an ex post facto law. If, for example, a legislature lacked the foresight to anticipate a heinous activity before the activity first appeared, then good and reasonable people can favor punishment for the perpetrators even though the legislature blundered. When a legislature establishes a rule ordering people to jail whose prior conduct was malum in se, then the rule is not immune from correction through the democratic process, nor is the rule necessarily immoral, nor is the rule necessarily unlawful. Without the explicit (and wise) prohibitions in the Constitution, I do not see how ex post facto laws could be unconstitutional.
UPDATE: Having corresponded with Professor Arkes after this blog post was written, I would like to now add a further detail about Professor Arkes' position. He apparently believes that the name "ex post facto law" is given only to acts that we may judge "unjustified." I am not aware that anything I said in the blog post above was erroneous, but this position of Professor Arkes about the definition of "ex post facto law" is certainly worth stating clearly. My own view is that this distinction urged by Professor Arkes is undermined by the following sources cited by Justice Samuel Chase in Calder v. Bull, which do not distinguish justified from unjustified retroactive penalties:
I also rely greatly on the definition or explanation of ex post facto laws, as given by the conventions of Massachusetts, Maryland and North Carolina, in their several constitutions or forms of government. In the declaration of rights, by the convention of Massachusetts, part 1st, § 24, 'Laws made to punish actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, &c.' In the declaration of rights, by the convention of Maryland, art. 15th, 'Retrospective laws punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, &c.' In the declaration of rights, by the convention of North Carolina, art. 24th, I find the same definition, precisely in the same words, as in the Maryland constitution. In the declaration of rights, by the convention of Delaware, art. 11th, the same definition was clearly intended, but inaccurately expressed: by saying 'laws punishing offences (instead of actions or facts) committed before the existence of such laws, are oppressive, &c.'
Posted at 9:55 AM