Posted on 04/16/2003 5:44:44 AM PDT by Lady Eileen
I. The Suspension of Habeas Corpus:
Less than two months after assuming office as President, Abraham Lincoln wrote to General Winfield Scott in a letter unilaterally authorizing him to make arrests in the suspension of the writ of habeas corpus for reason of "public safety" in locations " between the City of Philadelphia and the City of Washington." On May 10, 1861 Lincoln extended this suspension to the state of Florida, again by unilateral proclamation as chief executive. On July 2nd, he again unilaterally extended suspension authority to the military "between the City of New York and the City of Washington." Additional suspensions of the writ were ordered unilaterally by Lincoln through the remainder of the war. The merits of Lincoln's unilateral suspension of habeas corpus have long been debated, but the act itself immediately raises another question of constitutionality. Though Lincoln acted to suspend the writ, nowhere in the United States Constitution does the president have this power and in fact it is given instead to Congress by any plain reading of the document. Lincoln denied this, asserting "Now it is insisted that Congress, and not the Executive, is vested with this power [suspension of habeas corpus]. But the Constitution itself, is silent as to which, or who, is to exercise the power." As any plain reading of the Constitution reveals, this claim is dubious.
Lincoln himself indicated his awareness of the constitutional issue his action raised, and on May 30 wrote to Edward Bates "Will you do the favor to confer with Mr. Johnson and be preparing to present the argument for the suspension of the Habeas Corpus." He presented his argument for unilateral secession to Congress when it arrived back in session on July 4th. The issue has been a point of contention against Lincoln ever since, but also one that his supporters have defended and sought to legitimize. Some have argued that the circumstances of 1861 permitted Lincoln to suspend the writ or that the Constitution is not clear about who may suspend it.
Arguing to this end, Justice William Rehnquist told an Indiana University law school class that "The question of whether only Congress may suspend it has never been authoritatively answered to this day," giving support to Lincoln's action. This statement invites an historical inquiry of what the Constitution says on the habeas corpus matter as well as a reading of its statements in historical context prior to Lincoln's suspension. A thorough examination of that record quickly establishes a slate of historical authorities identifying the Constitution's habeas corpus clause in a way contradictory to Rehnquist's statement and in conflict with Lincoln's actions. In addition the historical evidence indicates that Lincoln not only violated the U.S. Constitution by suspending habeas corpus, but in doing so his behavior was recklessly negligent of the authority of the other branches in the U.S. government and significantly exceeded his own office's vested powers.
II. The Suspension of Habeas Corpus in the U.S. Constitution:
The immediate source of information pertaining to the Constitution's powers of suspension for habeas corpus appears in the document itself. The clause pertaining to habeas corpus appears in Article I, Section 9, Clause 2 and reads simply:
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."Lincoln asserted this authority permitted him to act unilaterally, claiming on July 4 that "the Constitution itself, is silent as to which, or who, is to exercise the power" of suspending the writ. Even the simplest reading of the Constitution reveals immediately that this is simply not so and that the power to exercise this suspension is given to Congress, not the executive. The clause of suspension appears in Section 9 of the first Article, which clearly identifies itself as pertinent to the legislature. This article's opening sentence goes so far as to assert that the powers contained within it, of which the second clause of Section 9 is one, are specifically legislative:
"All legislative Powers herein granted shall be vested in a Congress of the United States"This assertion provides direct textual proof that Lincoln was in error, as in fact the Constitution was anything but silent as to who possessed the suspension authority. Further textual evidence is found throughout Section 9, which lists several limitations on the power of Congress, such as with habeas corpus (which the clause says may only be suspended under rebellion, invasion, or need for public safety). Every other clause of the eight in the section directly identifies itself as a clause applying to the power of Congress. Clauses 1 and 8 mention Congress by name. Clauses 3 and 7 specifically mention the making of "law." Clauses 4 and 5 specifically state restraints on the laying of taxes and duties, which is a power granted to Congress. Clause 6 asserts restrictions upon the regulation of commerce between states, a self evident matter of the national legislature in application. In short, the seven other clauses in Section 9 of Article I indisputably pertain to the powers of Congress. It is therefore absurd to believe that the founding fathers would have inserted a power intended for any branch other than Congress in the middle of Section 9.
III. The Suspension of Habeas Corpus and the Constitution's Framing:
Aside from the Constitution itself, perhaps the strongest source of information about its meaning is found in the documents of the founding fathers who drafted and debated the document. James Madison's extensive notes on the debates at the Constitutional Convention in 1787 provide one of the clearest historical records available about the document's drafting. Not surprisingly, Madison's notes detail the habeas corpus clause's introduction and debate before the convention. Keeping with the indications given in the text itself, the debate clearly indicates that the suspension power was given to Congress. The habeas corpus clause first appeared on August 20th in a set of resolutions put forth by Charles Pickney:
"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government, in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding months."Pickney's original resolution specifically places the suspension power with "the Legislature." Upon its entry as a proposal, this resolution was referred to committee for consideration. Madison's notes indicate that on August 28 Gouverner Morris moved to adopt the habeas corpus clause before the convention as a whole, offering the language that exists in the Constitution today. Affirming the textual reading of the document and in conflict with Lincoln's claims, the Constitutional Convention had placed the power with Congress.
Following the convention in 1787, the Constitution went up for ratification before the states. This initiated a prominent ratification debate involving many of the convention's participants in which the document's proponents and opponents argued its merits with intense detail. The writings that were published during ratification are now known to us as the Federalist Papers and the Anti-Federalist Papers. Robert Yates, a delegate to the convention arguing on the anti-federalist side, listed some of the Constitution's details including habeas corpus in one of his essays. Affirming the opposite of Lincoln's contention, Yates wrote in Anti-Federalist No. 9, "Brutus," that:
In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good.Anti-Federalist No. 16 "Federal Farmer," also identifies habeas corpus with the legislature. It's author is believed to have been the name used by Richard Henry Lee of Declaration of Independence fame, though there is some doubt to the exact author:
"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals."In fact, readings of the Constitution which identified the habeas corpus suspension power with the Congress without contention appear throughout the ratification debate. Moving from New York to Massachusetts' ratification process, references to the habeas corpus clause identify it similarly. A delegate to the Massachusetts convention, Judge Francis Dana, addressed the clause while arguing for ratification with John Hancock. Dana's speech is partially recorded, in which he also identifies the suspension power with Congress without second thought or contention:
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."While the Constitutional Convention's records and the ratification debates provide clear evidence that the founding fathers extended the suspension power in question to Congress, perhaps the greatest authority on the matter is with one of the greatest of the founding fathers, Thomas Jefferson. Reflecting on the Constitution's early days in his 1821 autobiography, Jefferson also placed the suspension power for habeas corpus with the Congress. Jefferson wrote:
"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body."The remarkable consistency among the founding fathers on this issue is clear - contrary to Lincoln's later claims, the Constitutional power to suspend habeas corpus in times of rebellion was extended to the Congress and not the President.
IV. The Suspension of Habeas Corpus as Viewed by Early Constitutional Scholars:
The early 19th century produced two prominent legal commentaries on the United States Constitution by scholars. The first, published in 1826, was William Rawle's A View of the Constitution of the United States of America. Rawle was a distinguished legal advisor and friend of Benjamin Franklin who had also been offered the job of Attorney General by George Washington, though he declined. Rawle's commentary spoke on the issue of suspending habeas corpus in Chapter 10:
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power"The second prominent legal commentary was offered in the 1833 publication Joseph Story's Commentaries on the Constitution of the United States. Story, a Justice on the United States Supreme Court, was considered one of the most important legal minds of his day. In Book 3, Chapter XXXII, § 1336 Justice Story wrote:
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."Though he disagreed with Rawles on other issues, the two clearly agreed on who had the power to suspend habeas corpus, and that was Congress.
V. The Court Rules on the Suspension of Habeas Corpus:
In addition to the overwhelming historical evidence against Lincoln's interpretation and actions regarding habeas corpus, the standing precedent of the United States Supreme Court also holds that Congress has the power to suspend the writ. A precedent on the matter was handed down in 1807 by Chief Justice John Marshall. In the case of Ex Parte Bollman and Swartwout Marshall affirmed what had been known without contention by the founding fathers - that the suspension power was given to Congress. His decision read:
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide."It is accordingly of little surprise that this precedent was cited in 1861 when Lincoln's suspension of habeas corpus was challenged in court. In May 1861 federal authorities acting under Lincoln's order arrested John Merryman without charges and imprisoned him in Fort McHenry near Baltimore. Merryman petitioned for a writ of habeas corpus from the judiciary and his case went before the U.S. Circuit Court in Maryland. Chief Justice Roger Taney of the U.S. Supreme Court, who was serving his circuit capacity in the court, received the case and issued a writ ordering General Cadwalader, the imprisoner, to produce the body of Merryman before his court with a statement of charges for the arrest. Cadwalader refused the writ, informing Taney that Lincoln had suspended habeas corpus. Taney then dispatched a U.S. Marshall ordering him to appear before the court on the matter, to whom entry was refused upon the attempt at delivery. Taney accordingly issued a ruling for the case Ex Parte Merryman in which he affirmed Marshall's precedent and struck down Lincoln's order to suspend habeas corpus as unconstitutional. His ruling declared:
"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law."The court's ruling was delivered to Lincoln, informing him of the unconstitutionality of his action as ruled by the Circuit Court. Legally, this left Lincoln with the option of either abiding by the decision or appealing it to the United States Supreme Court. Lincoln did neither, and simply ignored the judiciary's ruling against him. The action violated the constitutional judiciary system which, according to the landmark Marbury v. Madison ruling of 1803, governed Lincoln's actions. John Marshall had ruled in Marbury that "The judicial power of the United States is extended to all cases arising under the constitution."
In addition, Taney implicated Lincoln for extending the his suspension of habeas corpus into the hands of a military authority. This action violated the constitutional system of the judiciary and, as Taney implied, resembled a central grievance against King George III cited in the Declaration of Independence:
"HE has affected to render the Military independent of and superior to the Civil Power"VI. Arguments for Lincoln's Suspension of Habeas Corpus Analyzed:
ARGUMENT 1: Lincoln offers as an argument that "it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together."
Lincoln's argument here is flawed, as the Constitution extends the power to call Congress back into session, which Lincoln could have done in 1861. Instead he chose not to and Congress remained out of session from early March to the beginning of July. Therefore it was Lincoln who failed in to exercise this constitutional power that prevented Congress from being able to consider the suspension. Meanwhile, as has been shown, the framers indisputably intended the decision to be in Congress' hands.
ARGUMENT 2: Supporters of Lincoln's action offered as an argument that Gen. Andrew Jackson had suspended habeas corpus after the Battle of New Orleans during the War of 1812 and was later commended for the act by Congress.
This argument is flawed as well. The existence of an anecdotal case in which an improper authority suspended habeas corpus without consequence does not render the rule void for all other cases. That congress approved of a suspension by an improper authority after the fact does not make it constitutional either because the Constitution prohibits legislation after the occurrence of an act that alters the legal consequences of that act. Article I, Section 9, Clause 3 states that "No...ex post facto Law shall be passed."
ARGUMENT 3: Supporters of Lincoln's action note that Congress passed measures supporting the suspension of habeas corpus after they came back into session in July 1861.
Again this argument does not absolve Lincoln of his action as it functions in an ex post facto manner.
CONCLUSIONS:
The overwhelming amount of historical evidence clearly contradicts Lincoln's assertion that the Constitution "is silent as to which, or who, is to exercise the power" of suspending habeas corpus. Though legal relativists, loose constructionists, and even some otherwise reliable constitutionalists maintain that Lincoln's action of suspending habeas corpus was without constitutional flaw, the volume of evidence renders such a position insupportable. In addition to the unconstitutional suspension of habeas corpus, there remains the issue of the Merryman ruling. Lincoln's action of ignoring this ruling by failing to either abide by it or appeal it to the Supreme Court constitutes a violation of the United States judiciary branch's authority that remains on his record even if one were to hypothetically permit its unlikely reversal had it been appealed. The sum of these actions by Lincoln amount to clear and material violations of the United States Constitution. It is further not unreasonable to conclude that in other times, similar actions by a president of the United States would have been cause for his impeachment and removal from office.
You suggested that President Lincoln admitted that he had himself admitted he broke the law. And yet on June 12, 1863, he clearly wrote that he had done nothing illegal.
You told a whopper and you got caught, again.
Walt
No. Congress is banned from passing Ex Post Facto laws by the Constitution. Try again.
Well, they sure passed something. They agreed with General Jackson. There was no telegraph. He had to act. He did act.
This was interesting:
"You [this is from a newsgroup] cited Roger B.Taney's ringing denunciation of Lincoln for usurping a congressional power, based on the particular placement of the habeas corpus suspension clause within the Constitution. Two years earlier, in the famous case of ABLEMAN v BOOTH, Taney had written, "in the judgment of this court, the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States." I was wondering whether you find it as curious as I do that what Taney found to be a definitive criterion (placement of text within the Constitution) in 1861 was apparently not even on his radar screen in 1859.
It seems to me that if Taney's position in 1861 was unquestionably correct, then the Fugitive Slave Law was unquestionably unconstitutional. Or, if the Fugitive Slave Law was "fully authorized by the Constitution of the United States" as Taney had contended in 1859, then the Supreme Court was on record as saying that the placement of text within the body of the Constitution was not absolutely definitive in terms of who was assigned a particular power -- a point that Taney might have taken into account in 1861. So how about it: Fugitive Slave Law, constitutional, or unconstitutional?"
Walt
Yes, but Chief Justice Taney's ruling was issued from the circuit court bench, not the Supreme Court. The Lincoln administration should have taken the matter to the full court but they did not. Had they done so I expect that the court would have ruled against them. Still, the fact still stands that the Supreme Court has never ruled on the matter. One hopes that they will never have to but there is always Patriot Act III or Patriot Act IV.
Yeah, a measure sanctioning his violation of the Constitution after he had already committed it. A law altering the legitimacy of an action after that action is committed is ex post facto, and such measures are explicitly banned in the Constitution.
There was no telegraph.
The Constitution doesn't care whether there is a telegraph, a phone line, an internet connection, or some Indian standing on top of a hill waving a blanket over a fire.
"You [this is from a newsgroup] cited Roger B.Taney's ringing denunciation of Lincoln for usurping a congressional power, based on the particular placement of the habeas corpus suspension clause within the Constitution. Two years earlier, in the famous case of ABLEMAN v BOOTH, Taney had written, "in the judgment of this court, the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States." I was wondering whether you find it as curious as I do that what Taney found to be a definitive criterion (placement of text within the Constitution) in 1861 was apparently not even on his radar screen in 1859.
It's not curious at all, as those are two different issues entirely. The habeas corpus matter is an Article I, Section 9 question, thereby pertaining to the legislature. The fugitive slave clause is Article IV, Section II and could be legislated on per Article I, Section 8, Clause 18. Further, even if what your source said were true, it bears no relevance of the case itself.
It seems to me that if Taney's position in 1861 was unquestionably correct, then the Fugitive Slave Law was unquestionably unconstitutional.
Your source is inventing a contradiction where none exists. This is called a fallacy of a false dilemma, Walt, because the occurence of one does not necessarily exclude the occurence of another, as your newsgroup incorrectly claims.
Or, if the Fugitive Slave Law was "fully authorized by the Constitution of the United States" as Taney had contended in 1859, then the Supreme Court was on record as saying that the placement of text within the body of the Constitution was not absolutely definitive in terms of who was assigned a particular power
Not really. A law is, by definition, a legislative act. If the court says a law is constitutional because the constitution permits it, that means the legislature, and not the executive, can write that law.
No I didn't, Walt. I stated that he admitted that the suspension power came from the criteria set out in Article I, Section 9 and nowhere else. Your fibbing about that after the fact will not change it.
Strictly speaking, an ex post facto law is one which makes illegal an act which was legal when committed, or increases the penalty for a crime after it was committed. An act of congress authorizing Jackson's actions after the fact doesn't qualify as an ex post facto law. Same with President Lincoln.
No I didn't, Walt. I stated that he admitted that the suspension power came from the criteria set out in Article I, Section 9 and nowhere else.
Well, he obviously didn't see that as a bar to presidential action, and neither did the Congress or the people, and as you know, his actions are also supported by the present Chief Justice.
Walt
Your source is inventing a contradiction where none exists.
Well, one surely does exist. If placement dictates a ruling in one, then to be consistant, it must be the same in all others.
Taney was borderline treasonous himself. Just being the Chief Justice doesn't give one the right to let the country go to hell.
Walt
It is commonly percieved to be so, and the classic examples of ex post facto laws fit that description, but the constitution itself places no such criteria on ex post facto - it merely bans them from being enacted. A law that legalizes a previously illegal action after the fact to benefit a friend is accordingly no less "ex post facto" than one that bans a previously legal action after the fact to harm an enemy.
In the law according to GOPcapitalist, perhaps. The rest of us have to limp along with the legal definition of ex post facto, which is what I said earlier.
Where, Walt? Simply saying that a contradiction exists does not make it so, nor does the obsessive repetition of that previous assertion.
Your source essentially said:
P1. The Habeas Corpus power was decided by Taney in Merryman to belong to Congress due to its placement.
P2. In an earlier case Taney stated that the fugitive slave law is authorized by the Constitution.
CONCLUSION. (non-sequitur) Therefore the two rulings were inconsistent.
That conclusion does not flow from the relation of either premise, as neither premise says anything contradicting the other. Therefore the conclusion does not stand.
No. In the law according to the U.S. Constitution.
The rest of us have to limp along with the legal definition of ex post facto, which is what I said earlier.
That definition is not from the Constitution, nor is it much of a legal definition. Literally, the term signifies a law which is done "after the fact."
Commonly this is applied to a situation of criminalizing an act that somebody you don't like has already committed then retroactively arresting him for it. For example, if Congress didn't like Walt, decided to pass a law banning cut n' pastes off of AOL moderated newsgroups, and then imprisoned Walt on a cut n' paste of his from last year, it would be an ex post facto law.
It would be every bit as "after the fact" if they passed a law decriminalizing something previous to get a friend off the hook. Suppose for this example that the GOP congress passed a non-ex post facto cut n' paste ban and Walt got arrested and sentenced. Now suppose that the Democrats won control of Congress next year and decided that they were going to help out their old buddy Walt as a thank you for all of his years of devotion and service to their party, so they retroactively pass a law that legalizes Walt's cut n' pastes after the fact. It too would be ex post facto, and therefore unconstitutional.
There is method behind this approach, non-seq. It is there to prevent the possibility that, say, a Congressman's brother was in jail for murder, thus inciting his powerful sibling to pass a law legislating him out of jail.
It's what the Supreme Court defined the ex post facto clauses of the Constitution to mean in Calder v. Bull in 1798. Justice Chase (no, not that one) writing for the majority said:
"I shall endeavour to show what law is to be considered an ex post facto law, within the words and meaning of the prohibition in the Federal Constitution. The prohibition, "that no state shall pass any ex post facto law," necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing. Literally, it is only, that a law shall not be passed concerning, and after the fact, or thing done, or action committed. I would ask, what fact; of what nature, or kind; and by whom done? That Charles 1st. king of England, was beheaded; that Oliver Cromwell was Protector of England; that Louis 16th, late King of France, was guillotined; are all facts, that have happened; but it would be nonsense to suppose, that the States were prohibited from making any law after either of these events, and with reference thereto. The prohibition, in the letter, is not to pass any law concerning, and after the fact; but the plain and obvious meaning and intention of the prohibition is this; that the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it. The prohibition considered in this light, is an additional bulwark in favour of the personal security of the subject, to protect his person from punishment by legislative acts, having a retrospective operation."
To cite that case is a straw man, non-seq, as it says nothing of the circumstances I described.
Here is what the Supreme Court has said on that subject though:
"An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public treasury." - John Marshall, Fletcher v. Peck, 1810
In other words, ex post facto laws work both ways, their only criterion being that they alter the manner in which a given act is punishable from the time it was committed.
Story's Commentaries echo this sentiment:
"§ 1339. Of the same class are ex post facto laws, that is to say, (in a literal sense,) laws passed after the act done. The terms, ex post facto laws, in a comprehensive sense, embrace all retrospective laws, or laws governing, or controlling past transactions"
Also, check in your own case of Calder v. Bull. You will find the following, which specifically mentions a certain type of Ex Post Facto law that lessens a punishment for an offense:
"All the restrictions contained in the constitution of the United States on the power of the state legislatures, were provided in favor of the authority of the federal government. The prohibition against their making any ex post facto laws was introduced for greater caution, and very probably arose from the knowledge, that the parliament of Great Britain claimed and exercised a power to pass such laws, under the denomination of bills of attainder, or bills of pains and penalties; the first inflicting capital, and the other less punishment."
I just checked the one that I still had pulled up and saw nothing contradicting its statement of fact about habeas corpus. Do you have anything that shows otherwise?
In fact, Justice Chase (no, not that one) specifically says "If the term ex post facto law is to be construed to include and to prohibit the enacting any law after a fact, it will greatly restrict the power of the federal and state legislatures;
And that is so, but his reference was not to the application I describe but rather an extreme construction of the term that permits essentially any law whasoever to be covered under it.
An ex post facto law is, as Justice Chase and Justice Marshall point out, one which makes illegal an activity that was legal when committed.
Marshall put it differently. His definition was as follows: "An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed."
That means an act which changes the type of punishment for an act after the fact, and as the case you cited indicates, this historically included acts in England where ex post facto laws were passed to lessen penalties to the advantage of some.
No, because we aren't discussing habeas corpus. As for the rest this is reminding me of our discussion of what constituted an obiter dicta. As I recall you clung to your rather unique interpretation of that, too.
My apologies. I meant ex post facto, but was thinking habeas corpus due to another discussion I'm having on that subject.
As for the rest this is reminding me of our discussion of what constituted an obiter dicta.
In some ways, it may be. But it remains that my interpretation of ex post facto is perfectly consistent with the definition of that term given by Marshall as well as the history behind it in England.
As I recall you clung to your rather unique interpretation of that, too.
As did you.
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