Ex Post Facto Laws – Constitution Article 1 §9.3

On Wednesdays we study the Constitution. I thought I’d never finish Article 1, Section 8, which lists the powers of Congress. But a couple weeks ago I finally got to Section 9, which denies Congress specific powers. It started off weak with a 20-year timeline for denying the importation of slaves. Last week I read how it established habeus corpus by defining its limits. This week I’m on to Article 1 §9.3, which – actually, I don’t even know what these words mean.    

Constitution Article 1 §9.3

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

I think we need to start with some definitions.

Attainder: the forfeiture of land and civil rights suffered as a consequence of a sentence of death for treason or felony.

Ex post facto: with retroactive effect or force.

Bills of Attainder

The dictionary definition of “attainder” sounds like something that would affect the heirs of someone subjected to the death penalty. But J. Story’s Commentaries on the Constitution of the United States (p. 1338) explains it much more fully:

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. . . . 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… 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.

So Clause 3 forbids Congress from usurping the judicial power in capital cases. Further, Cummings v. Missouri established that the proscription held for non-capital cases as well. So Congress is not allowed to bypass due process in criminal cases. The only time Congress can act in a judicial manner is during impeachment. I’d say that’s a pretty big deal. I like this clause.

Ex post facto

This clause denies Congress the power to criminalize something after the fact. Without such a restriction, people could be arrested years later for something that was perfectly legal at the time they did it. A person who had never broken a law could be made a criminal. Congress could get pretty imperious without this clause.

While the premise restricting the criminalization and punishment of past acts is pretty straightforward, there have been legal challenges in practice. The first successful application of this clause was against a law that barred former Confederates from practicing law in federal courts. A statute that denied polygamists the right to vote was upheld, even in the cases of polygamists who only multi-married before the law was passed. The reasoning was that the law did not constitute a punishment but merely defined voter qualifications. Now I’m not into polygamy, but the two cases seem analogous to me, so I think the courts were inconsistent. It happens. There are quite a few cases where ex post facto laws have snuck past the courts by excluding things like deportation and termination of retirement benefits from the definition of “punishment.” (See the Annotated Constitution p 392 for details.)

Even the courts have not been as diligent in protecting this part of the clause, it’s still an important protection. The original, pre-Amendments Constitution didn’t do much to protect individuals. It was way more interested in setting up basic government structures and distributing power. But Article 1 §9.3 was a valuable exception to the rule.