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

Richard Hartman writes:

: > : On Thu, 2002-10-10 at 14:55, 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."
: > : 
: > : That just prevents Congress from passing a law making something
: > : illegal after the fact, e.g. declaring the speed limit to be
: > : 35 mph after you've already gone by at 45, then socking you
: > : for speeding.
: > : 
: > : It doesn't apply to making future actions (e.g. publication
: > : of _The_Jungle_Book_ less than 70 years after Kipling's death)
: > : illegal.
: > 
: > That is correct, but only because in CALDER v. BULL, 3 U.S. 38
: > (1798) the Supreme Court held that the ``ex post facto'' clause
: > only applies to penal (which pretty much means ``criminal'') 
: > cases.
: > 
: What were the grounds cited for this decision?

As I recall, the grounds were that otherwise they would have to
overturn legislation that overrurled a judicial decision in a
probate case.  The Court overlooked the fact that the legislature
was sitting in that case as a court (like the House of Lords) and
not as a legislature.

Unfortunately in the much more important case of Fletcher v. Peck,
the majority at least of the Court held in an opinion by
Justice Marshall, that Calder v. Bull expressed the law, and 
then went all the way around Robin Hood's barn to strike down
a state law that purported to repeal an earlier law granting
lands in the Yazoo delta to the corrupt friends of earlier
legislators.  (More things change, the more they stay the same.)

That was before the fourteenth amendment was available to reach the
same result.  

Today one can argue, and perhaps sometimes even win on the grounds, that
a non-penal ex post facto law violates due process of (or the taking clause
as incorporated into) the fourteenth amendment.

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists