"Ex Post Facto" law

[Captain Nate]

In the absence of statutes, how are citizens to be put on notice of what conduct is illegal and what is not? What about that whole "ex post facto" thing?

If you, or anyone else, is curious about "ex post facto" and common law, you can see the Supreme Court's recent decision on the issue here:

http://en.wikipedia.org/wiki/Rogers_v._Tennessee

[Groovenstein]

Thanks for the heads up, Nate. Since the link to the full opinion is broken in that article, here it is. I'll give it a read.

Edit:

Okay, so here's what I gather after a very quick read. EPF is a limitation on the powers of the Legislature, not the courts. However, the Court has said that limitations on ex post facto in the courts are inherent in the notion of due process. Thus, the Court concluded "that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.'"

If these limitations are inherent in the notion of due process, wouldn't it be true that without a guarantee of due process there would be no such limitations? In other words, the clause to which JDX so strongly objects is the only thing that keeps the common law in check?

Edited September 17, 2005 by Groovenstein

[DavidOdden]

In the absence of statutes, how are citizens to be put on notice of what conduct is illegal and what is not? What about that whole "ex post facto" thing?

As I understand it, the Code Napoleon (the living embodiment of Justinian statutory law) prohibits ex post facto law. Furthermore, according to these guys, due to the doctrine of the 'sovereignty of parliament' ex post fact law is technically possible in that bastion of common law, the UK, so it is only because of our explicit constitutional prohibition against ex post facto law that we can't have such a thing. All told, it looks like countries with statutory legal systems do a better job of prohibiting ex post facto law that do ostensive common law nations. To the extent that English law isn't totally huggy with ex post facto law, as I understand it, this is a post-Cromwellian development which antedates what counts as defines pure "common law", at least in my understanding of the extent of common law. It is not apparently a principle held in such high esteem in Australia.

[Adrian Hester]

Furthermore, according to these guys, due to the doctrine of the 'sovereignty of parliament' ex post fact law is technically possible in that bastion of common law, the UK, so it is only because of our explicit constitutional prohibition against ex post facto law that we can't have such a thing.

Or "parliamentary supremacy." This was argued in the 1760s in Blackstone's Commentaries, but it didn't spread to the law of the American colonies before the Revolution; in fact, the principle of parliamentary supremacy was a major bone of contention between England and the colonies. On the other hand, it was flourishing by the time South Africa became independent; apartheid was enacted on its basis. (This I remember from John Dugard's Human Rights and the South African Legal Order (1978), which made the point in the first few pages that apartheid depended crucially on the doctrine of parliamentary supremacy. This was ended in 1994 in South Africa, by the way, with the adoption of the Interim Constitution.)

Edited September 17, 2005 by Adrian Hester

[Captain Nate]

If these limitations are inherent in the notion of due process, wouldn't it be true that without a guarantee of due process there would be no such limitations?

In other words, the clause to which JDX so strongly objects is the only thing that keeps the common law in check?

Without such a clause in the 14th amendment, the Federal Courts & federal government would have no authority to protect Due Process of citizens prosecuted by the States.

In the aforementioned case, eventhough ex post facto is not expressly prohibited (since it applies to the legislature, not to the courts of law), due process rights inherently prevent Judges, acting upon Common Law, to change the law.

However, notice the court actually allowed the law to be retroactively changed because it believed that, in some manner, the law morphed and changed on its own, and the defendent was supposed to know that. This is the problem with common law, in that it's almost entirely within in the mind of the justices as to whether something is right or wrong, rather than being known before-hand by the general populace. Whether or not the court was right that people should have realized the old Common Law decisions would not apply to modern day decisions can be another debate, but it does bring up significant flaws in the application of common law.

All though to be fair, after such decisions are made, Court opinions can be made available so that people do know the law, but they have no way of knowing when the law will be changed for, or against them, beforehand as you would with Statute.

Edited September 17, 2005 by Captain Nate