THE CASE AGAINST CIVIL EX POST FACTO LAWS

Cato Journal, Vol. 15, Nos. 2-3 (Fall/Winter 1995/96). Copyright © Cato Institute. All rights reserved.

According to Article I, Section 10 of the Constitution, "no State shall pass any ex post facto Law.'' A similar provision that applies to Congress is found in Section 9 of the same article. At first glance these constitutional prohibitions seem simple enough--retroactive laws violate the Constitution. Unfortunately, the issue is not so simple. With one ruling in 1798, the Supreme Court succeeded in muddling the issue of ex post facto laws by holding that the prohibition of retroactive laws applies only to criminal, not civil, laws.

In The Constitution of Liberty, F. A. Hayek (1960: 205-20) notes that some coercion, while unavoidable in a civil society, can be minimized by requiring that coercive actions comply with general rules that are known in advance by individuals. If individuals know the law, they can base their actions upon established rules and minimize the ill effects of coercion. Hayek states that not all legislative enactments will satisfy the three criteria of what he calls "true law''--generality, certainty, and equality. He argues that true law provides the general rules which minimize coercion and that legislative enactments which do not satisfy these criteria are objectionable. He writes that the law must be general, that it must be known and certain, and that it should apply equally to all. A necessary condition for the law to be known and certain is a prohibition on ex post facto laws. After all, the law can hardly be known and certain if new laws can be made to apply retroactively to actions already performed.

From a policy standpoint, as Hayek's analysis indicates, ex post facto laws are riddled with problems. Unfair and unpredictable, ex post facto or retroactive laws mar the American legal system and create an abundance of problems.[1]

This article examines the origins of the constitutional interpretation of ex post facto laws, reviews sources favoring the prohibition of ex post facto civil laws, considers the damaging impact of retroactive laws on property rights, and proposes a solution to the debate over retroactive laws in which ex post facto civil as well as criminal laws would be constitutionally prohibited unless just compensation is provided for unfair retroactivity. Given that the clear constitutional ban on ex post facto laws does not distinguish between criminal and civil laws and given our own intuitions about fairness in the legal system, the prohibition on ex post facto laws should be extended to civil laws in order to prevent unfair and capricious changes in the law.

Calder v. Bull: Origins of the Distinction between
Civil and Criminal Ex Post Facto Laws

The Supreme Court first held that the constitutional prohibition against ex post facto laws applied only to criminal laws in the landmark opinion of Calder v. Bull (1798). The issue in the case, which arose from the Supreme Court of Connecticut, was whether the act of the Connecticut legislature to set aside a decree of a probate court (which had the effect of divesting the appellants of certain property) was an ex post facto law. ..more.. by Steve Selinger is a land developer who has been the "beneficiary'' of certain ex post facto laws. He holds a doctorate in philosophy from Princeton University and a doctorate in economics and econometrics from the California Institute of Technology. He thanks Lawrence E. Smith, Bill Talbott, Suzanne Tracy, and Beth Vella for their helpful comments on earlier drafts.