# Is "Laws can't be retroactive" hard and fast? In the Constitution or just common law? **URL:** \ **Category:** Factual Questions\ **Created:** [March 21, 2006, 7:03pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321 "2006-03-21T19:03:01Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![specie](https://avatars.discourse-cdn.com/v4/letter/s/ba9def/32.png) [@specie](https://boards.straightdope.com/u/specie)\ **Post date:** [March 21, 2006, 7:03pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/1 "2006-03-21T19:03:01Z")
I know laws can’t be made retroactive. They can’t make a law that codine is illegal to purchase and then round up everyone who already bought some. (Although, come to think of it, they can outlaw posession, and have done so as every new street drug becomes popular. But that’s not necessarily retroactive.) Anyway, where is it written? ---
**Author:** ![RandomLetters](https://avatars.discourse-cdn.com/v4/letter/r/8edcca/32.png) [@RandomLetters](https://boards.straightdope.com/u/RandomLetters)\ **Post date:** [March 21, 2006, 7:15pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/2 "2006-03-21T19:15:42Z")
[Under Article I, Section 9, of the US Constitution -](http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html) > [@](#): > > No Bill of Attainder or ex post facto Law shall be passed. ---
**Author:** ![specie](https://avatars.discourse-cdn.com/v4/letter/s/ba9def/32.png) [@specie](https://boards.straightdope.com/u/specie)\ **Post date:** [March 21, 2006, 7:20pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/3 "2006-03-21T19:20:33Z")
So does that mean that post facto laws were made before the revolution? Are they allowed right now in England? Elsewhere? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 21, 2006, 7:22pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/4 "2006-03-21T19:22:24Z")
And just for the record: a “bill of attainder” is a law that declares a named person or particular group of people guilty of a crime without any trial. Typically it would also work some penalty on the guilty party’s civil rights such that they could no longer leaglly hold title to property or bequeath anything to his family. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 21, 2006, 7:24pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/5 "2006-03-21T19:24:55Z")
> [@specie](#): > > So does that mean that post facto laws were made before the revolution? > Are they allowed right now in England? > Elsewhere? So far as I know, and I welcome correction on this point, the principle of _parliamentary supremacy_ applies to England – Parliament may pass any law it wants to. ---
**Author:** ![Tevildo](https://avatars.discourse-cdn.com/v4/letter/t/b9bd4f/32.png) [@Tevildo](https://boards.straightdope.com/u/Tevildo)\ **Post date:** [March 21, 2006, 7:40pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/6 "2006-03-21T19:40:20Z")
> [@Bricker](#): > > So far as I know, and I welcome correction on this point, the principle of _parliamentary supremacy_ applies to England – Parliament may pass any law it wants to. The European Convention on Human Rights, Article 7, states: > [@](#): > > 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. > 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. Now, you’re right about the principle of parlimentary soverignty - the ECHR doesn’t have the force of the US constitution, it’s just another statute law. In theory, Parliament _could_ pass a law which had retrospective effect. However, anyone prosecuted under such a law could go to Strasbourg and get a declaration of incompatibility - the UK would then be obliged to either (a) rescind the law (b) secede from the EU or (c) pay the fines associated with the declaration. It should also be noted that the Article doesn’t prohibit retrospective _legislation_, as such. It just says that such legislation can’t make the punishment a person is subjected to to heavier than it would have been at the time of the offence. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [March 21, 2006, 8:33pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/7 "2006-03-21T20:33:04Z")
> [@specie](#): > > I know laws can’t be made retroactive. Not correct. Only _criminal_ laws can’t be retroactive, because of the ex post facto clause. Other types of laws can be. Tax provisions, for example, are frequently retroactive. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [March 21, 2006, 9:47pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/8 "2006-03-21T21:47:19Z")
> [@Freddy the Pig](#): > > Not correct. Only _criminal_ laws can’t be retroactive, because of the ex post facto clause. Other types of laws can be. Tax provisions, for example, are frequently retroactive. Untrue. Read the constitution. **No** ex post facto laws can be passed. Period. No law can get around that, no matter what the purpose. You can be required to pay taxes from previous years (say if you didn’t file a return when you were required to), but those taxes must be on the books at the time you are required to pay. Congress cannot require, for instance, that you pay taxes on your Internet purchases from 1990-2005. If, however, they pass a law tomorrow that this is required, and it’s found in five years that you haven’t, you are liable for the taxes owed after the law is passed. ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [March 21, 2006, 10:18pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/9 "2006-03-21T22:18:21Z")
From _Calder v. Bull_, 3 U.S. 386 Justice Samuel Chase wrote: > [@](#): > > 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. I do not think it was inserted to secure the citizen in his private rights, of either property, or contracts. The prohibitions not to make any thing but gold and silver coin a tender in payment of debts, and not to pass any law impairing the obligation of contracts, were inserted to secure private rights; **but the restriction not to pass any ex post facto law, was to secure the person of the subject from injury, or punishment, in consequence of such law.** If the prohibition against making ex post facto laws was intended to secure personal rights from being affected, or injured, by such laws, and the prohibition is sufficiently extensive for that object, the other restraints, I have enumerated, were unnecessary, and therefore improper; for both of them are retrospective. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [March 21, 2006, 10:23pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/10 "2006-03-21T22:23:18Z")
Cite, **Chuck**. Retroactive laws are not necessarily unconstitutional. It says so right here in my edition of Black’s Law Dictionary, Eighth Edition, under “retroactive law.” The Ex Post Facto Clause has typically been interpreted to prevent ex post facto criminilization of laws, or extending/enhancing criminal penalties ex post for an already criminal act. There are lots of restrictions on what kind of retroactive laws Congress can enact, but most of them flow out of the Due Process Clause, as well as the Obligation of Contracts Clause. –Cliffy ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [March 21, 2006, 10:33pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/11 "2006-03-21T22:33:31Z")
Commentary on Chase’s decision in Calder v. Bull: [THE CASE AGAINST CIVIL EX POST FACTO LAWS, by Steve Selinger](http://www.cato.org/pubs/journal/cj15n2-3-4.html) > [@](#): > > Due to the Supreme Court’s error-ridden analysis in Calder v. Bull, the prohibition against ex post facto laws has been applied only to criminal laws. As an analysis of United States v. Carlton and significant policy considerations indicates, this prohibition deserves to be extended to civil laws. Retroactive laws should be permitted only if just compensation is paid to harmed individuals. I’m just presenting this and make no pretense that I agree with the argument or understand the law involved. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [March 22, 2006, 12:53am UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/12 "2006-03-22T00:53:14Z")
> [@Cliffy](#): > > Cite, **Chuck**. Retroactive laws are not necessarily unconstitutional. It says so right here in my edition of Black’s Law Dictionary, Eighth Edition, under “retroactive law.” The Ex Post Facto Clause has typically been interpreted to prevent ex post facto criminilization of laws, or extending/enhancing criminal penalties ex post for an already criminal act. > > There are lots of restrictions on what kind of retroactive laws Congress can enact, but most of them flow out of the Due Process Clause, as well as the Obligation of Contracts Clause. > > –Cliffy So what is a retroactive law that isn’t ex post facto? I can’t see how that’s possible. ---
**Author:** ![askeptic](https://avatars.discourse-cdn.com/v4/letter/a/eb9ed0/32.png) [@askeptic](https://boards.straightdope.com/u/askeptic)\ **Post date:** [March 22, 2006, 1:03am UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/13 "2006-03-22T01:03:37Z")
> [@RealityChuck](#): > > So what is a retroactive law that isn’t ex post facto? I can’t see how that’s possible. California Three Strikes Law, is retroactive but not aparently ex post facto. If you commited a crime that would be considered a strike now, even though you commited it before the law was on the books, it will now be considered a prior strike for sentencing purposes. The really nasty part is where they count crimes commited by juveniles as strike priors. Another one is DUI. Until last year a prior DUI within 7 years made a current DUI a second offence. Now a prior within 10 years applies. Even if when you were cnvicted they told you it would stay on your record for only 7 years. ---
**Author:** ![hawthorne](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@hawthorne](https://boards.straightdope.com/u/hawthorne)\ **Post date:** [March 22, 2006, 1:25am UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/14 "2006-03-22T01:25:02Z")
IANAL, but retrospective legislation is used in Australia. As a matter of statutory interpretation, judges tend to require Parliament to state very very plainly that their intent is for a law to have retrospective effect. A recent example is the retroactive excision of certain islands from the [migration zone](http://en.wikipedia.org/wiki/Australian_migration_zone) after people seeking asylum had already landed there. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 22, 2006, 3:43am UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/15 "2006-03-22T03:43:58Z")
IANAL, but my understanding is that ex post facto punishments are prohibited. But, despite what many argue, taxes are not a form of punishment. So it is legal to tax somebody for ownership of an item that was not taxable when they purchased the item. You just can’t retroactively criminalize ownership of the item. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [March 22, 2006, 6:44am UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/16 "2006-03-22T06:44:03Z")
> [@Tevildo](#): > > The European Convention on Human Rights, Article 7, states: > > Now, you’re right about the principle of parlimentary soverignty - the ECHR doesn’t have the force of the US constitution, it’s just another statute law. In theory, Parliament _could_ pass a law which had retrospective effect. However, anyone prosecuted under such a law could go to Strasbourg and get a declaration of incompatibility - the UK would then be obliged to either (a) rescind the law (b) secede from the EU or (c) pay the fines associated with the declaration. Alternatively the Government could derogate from that part of the Convention as Bliar had disgracefully done over detention without trial. ---
**Author:** ![Fromage\_A\_Trois](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Fromage\_A\_Trois](https://boards.straightdope.com/u/Fromage_A_Trois)\ **Post date:** [March 22, 2006, 10:12am UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/17 "2006-03-22T10:12:16Z")
This has confused me about new (ish) sex offender laws - where a convicted offender has to be on a register, even if the offence was committed before the law was instated. Doesn’t that count as “extending/enhancing criminal penalties ex post for an already criminal act.”? I got a speeding ticket last year, and paid the fine etc. I’d be a bit miffed (to say the least) if I then got told “Ah yes, well this new legislation means that the punishment is now 30 days in jail. And because you committed the crime within the last 5 years, in you go, buddy.” ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [March 22, 2006, 3:09pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/18 "2006-03-22T15:09:11Z")
> [@RealityChuck](#): > > So what is a retroactive law that isn’t ex post facto? I can’t see how that’s possible. It doesn’t have to be possible for it to be the law. In Calder, the Court interpreted the phrase “ex post facto” to mean criminalization ex post. So you can have civil laws that are ex post but not unconstitutional. –Cliffy ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [March 22, 2006, 3:17pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/19 "2006-03-22T15:17:06Z")
> [@Cliffy](#): > > It doesn’t have to be possible for it to be the law. I guess my mistake was in sticking to reality. 🙂 ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 22, 2006, 3:33pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/20 "2006-03-22T15:33:31Z")
> [@Bricker](#): > > So far as I know, and I welcome correction on this point, the principle of _parliamentary supremacy_ applies to England – Parliament may pass any law it wants to. Extremely hypothetical question. Suppose Congress here in 20006 did pass a law saying that as of 1 Jan. 2000, \ was illegal. Obviously, if someone were charged under the law and the matter came to trial the law would be thrown out. But would negating the law require that someone be charged under it? Just exactly how would the law be stricken from the books. [Next page](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321.md?page=2)