# 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:** 9\ **Page:** 2
**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, 3:34pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/21 "2006-03-22T15:34:35Z")
> [@David Simmons](#): > > Extremely hypothetical question. Suppose Congress here in 20006 … Weeel, not quite that far into the future. Let’s say 2006 instead. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [March 22, 2006, 3:46pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/22 "2006-03-22T15:46:50Z")
Yes, Congress has passed some post facto Tax laws, but in every case that Iknow of (and that my bro, the tax expert know sof) these have applied to the current year, before anyone has filed their tax returns. I also wonder at the Consitutionality of adding additional punishments for a past offense. Another example was the law that if you ever in the past commited an act of "domestic violence’ you would be in the future banned from owning a gun, or being a police officer. I don’t have a problem with “three strikes” laws, as in order for them to effect you, you have to commit yet another felony. In other words, "three strikes’ can be looked upon as an extra heavy punishment for your last crime. ---
**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, 3:49pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/23 "2006-03-22T15:49:31Z")
> [@David Simmons](#): > > 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. Standing to challenge a law is a very tough issue. But I think that anyone who faces a substantial likelihood of prosecution could challenge it. Con Law was a long time ago though. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 22, 2006, 4:17pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/24 "2006-03-22T16:17:58Z")
> [@David Simmons](#): > > 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. The most likely avenue would be someone getting charged under the law, and challenging that charge based on the Ex Post Facto clause. The trial court would rule one way or the other. If they ruled against the accused, he would appeal; if they ruled against the government, THEY could appeal. Either way, the circuit court would then consider the issue. They’d decide, and that decision would have precedential weight in that particular federal circuit. The law is not actually “stricken from the books.” Only Congress may do that. But in annotated copies of the US Code, there’s a note that the law was found unconstitutional by such-and-so case. So the net effect of the law is zero. ---
**Author:** ![casdave](https://avatars.discourse-cdn.com/v4/letter/c/c6cbf5/32.png) [@casdave](https://boards.straightdope.com/u/casdave)\ **Post date:** [March 22, 2006, 5:46pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/25 "2006-03-22T17:46:19Z")
Many things may be classed as retroactive for unsolved crimes. If you have not been charged,arraigned, before a particular law comes into force, even though the offence predates the particular law, it is possible to be convicted under the new law. This can occur for example with old cold cases being reviewed, especially with improvements in DNA evidence gathering. It is entirely possible that the rules on sentencing for , say, rape, have changed dramatically over the course of 30 years or more, but the sentance applied will relate to what is allowable under the most recent legislation prior to the arraignement. This is also happening on child porn, it also occurs where an offence committed in one country many years ago, and is much more recently made the remit of the courts in another country, for decades Nazi war criminals could not be charged with certain offences in other countries, however this has changed dramatically. Pinochet is another case, here jurisdiction was effectively extended to protect Spanish nationals no matter what part of the world they live in, here the crimes against Spanish nationals ocurred many years before Spanish law was given the power to examine them. ---
**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, 5:56pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/26 "2006-03-22T17:56:04Z")
Casdave you need to make clear what jurisdiction you are talking about. Especially in a thread about American law. I was all set to refute your entire post as being patently untrue then I noticed you were posting from outside the US. I do not know what the law is where you are but nothing you posted applies in the US. ---
**Author:** ![Rashaverak](https://avatars.discourse-cdn.com/v4/letter/r/a5b964/32.png) [@Rashaverak](https://boards.straightdope.com/u/Rashaverak)\ **Post date:** [March 22, 2006, 7:44pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/27 "2006-03-22T19:44:46Z")
> [@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. (Bolding mine) Frequent misconception: the ECHR is _not_ affiliated with the EU, an entirely separate entity. The UK’s withdrawal from the EU would have zilch effect on her Convention obligations. Confusingly though, the Council of Europe and the EU share the same flag. Sorry **Tevildo** , just a pet peeve of mine! ---
**Author:** ![Mk\_VII](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@Mk\_VII](https://boards.straightdope.com/u/Mk_VII)\ **Post date:** [March 22, 2006, 9:37pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/28 "2006-03-22T21:37:41Z")
Here, the War Crimes Act 1991 retrospectively criminalised acts committed in WW2 by people who were foreign nationals, against other foreign nationals, not on British territory. ---
**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, 10:37pm UTC](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321/29 "2006-03-22T22:37:23Z")
> [@Bricker](#): > > The law is not actually “stricken from the books.” Only Congress may do that. But in annotated copies of the US Code, there’s a note that the law was found unconstitutional by such-and-so case. So the net effect of the law is zero. Sure, but the difference between a law that is “stricken from the books.” and one that is unenforceable by reason of unconstitutionality is vanishingly small. You couldn’t slide a cigarette paper between the two cases. 😃 [Previous page](https://boards.straightdope.com/t/is-laws-cant-be-retroactive-hard-and-fast-in-the-constitution-or-just-common-law/349321.md?page=1)