Re: [dvd-discuss] O'Connor quoted at USA Today from Eldred oral argument

[Timothy Phillips <hrothgar(at)telepath.com>]

On Thursday, October 10, 2002, at 02:55 PM, Richard Hartman wrote:
 >
 >  Make _what_ call??  There is no call to
 >  be made!  The Constitution expressly
 >  forbids retroactive legislation in
 >  Section 9, paragraph 3: "No bill of
 >  attainder or ex post facto Law
 >  shall be passed."

 >  Where is Congress granted the power to
 >  make a "call" about retroactivity?

Technically, the prohibition against ex-post facto laws applies only to 
criminal laws.

Precisely this question came up during the controversy over the Evans 
patent.
Thomas Jefferson, who had signed "An Act for the Relief of Oliver 
Evans", was
annoyed when the courts interpreted the law retroactively against people 
who
had set up Evans's invention during the time between the judicial 
invalidation
of Evans's first patent and the issuing of the new one.  He thought that 
the
spirit of the principle against ex post facto laws was applicable to the 
case,
but recognized that the Constitutional prohibition applied only to 
criminal laws:

	I did not expect the retrospection which has been
	given to the reviving law...
	
	The sentiment that ex post facto laws are against
	natural right, is so strong in the United States, that
	few, if any, of the State constitutions have failed to
	proscribe them.  The federal constitution indeed
	interdicts them in criminal cases only; but they are
	equally unjust in civil as in criminal cases, and the
	omission of a caution which would have been right,
	does not justify the doing what is wrong.    Nor ought
	it to be presumed that the legislature meant to use
	a phrase in an unjustifiable sense, if by rules of
	construction it can be ever strained to what is just.
	...Laws, moreover, abridging the natural right of
	the citizen, should be restrained by rigorous con-
	struction within their narrowest limits.
		--Thomas Jefferson, Letter to Isaac McPherson, August 13th, 1813.

Yes, that is the same letter as the one containing his famous "taper" 
apothegm.

Tim Phillips
<hrothgar@telepath.com>