Monday, March 10, 2008

Ex Post Facto

"Ex post facto" is a basic concept that law school students learn, generally in the first year. An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action. Two Constitutional clauses are involved. The U.S. Constitution's Article 1 Section 9 states: 'No Bill of Attainder or ex post facto Law shall be passed,' and Section 10 says: 'No State shall . . . pass any Bill of Attainder, ex post facto Law. . . .' By definition, the recent passage of the law to immunize the telecommunications industry's illegal and unconstitutional conduct in providing warrantless phone communication information to the federal government is illegal and unconstitutional on its face because it does violate these constitutional limitations. It will be argued that the passage of this law is really not ex post facto because the new law does not increase the penalty and consequences of the wrongdoers, but, in fact, eliminates any consequences for wrongdoers. The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

However, there are two parties to this horrible misdeed; the ones doing the harm and the others harmed by the conduct. In this recent legislation, it is the ones who were harmed, the innocent Americans who have the constitutional right to be free from improper warrantless violations of their privacy. The new law does increase the penalty and consequences for all Americans. The steady erosion of individual rights guaranteed by the U.S. Constitution will be the historical hallmark of the presidency of He who would be King. It is truly sad to know that the Democratic Congress, so eager to pander to big business, has joined in this erosion.

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