Ex Post Facto

 

Imagine what it would be like if Roe vs. Wade was not only overturned but the government pursued and prosecuted women and physicians who had participated in abortion procedures when it was legal.

Ex post facto laws retroactively change the rules of evidence in a criminal case, retroactively alter the definition of a crime, retroactively change punishment for a criminal act, or punish behavior that was legal when that behavior was committed.

In essence it redefines the rules of the past.

 Inherent in the concept of Western justice is the concept of "due process," where a citizen knows what behavior is legal, what is not and how the government can use the legal system to distinguish and punish bad behavior. It  is essential that those rules be known and not whimsically changed.

An ex post facto law is considered a hallmark of tyranny because it deprives people of a sense of what behavior will or will not be punished and allows for random punishment at the whim of those in power. More, it allows a government or group to target a person or group specifically, using legal past behavior as a weapon.

So ex post facto laws --along with its tyrannical cousin, the bill of attainder--are specifically prohibited (Article 1, Section 10 Clause 1, and Article I, Section 9, paragraph 3) in the U.S. Constitution.

Ex post facto is more than a despotic tool, it is a way of thinking. Take, for example, the recent request of a Chicago pastor to remove George Washington's name from a city park because he owned slaves. Washington did indeed own slaves. But it was legal when he did. One might want to hold him responsible for an immoral act of owning slaves but, at the time, while  slave ownership was debated it not considered immoral by any culture. Some thought it immoral, like the debate over abortion today, but it flourished at the time of the American Revolution. Indeed, the ambiguity over slavery evidenced by the founders of the American nation was unusual.

Holding people responsible for moral principles not yet accepted requires a lot of confidence; one might find oneself on the long end of the police baton in the future. It also requires purity, the belief that you and your judgment are beyond question and you can apply your judgment righteously against people quite unaware of the debate. Your enemy just need be flawed. The victim is like Dante's Virgil, subjected to the spiritual laws of a man he never heard of, from a time he never knew.

If that makes you think of cruel and outrageous religious groups, you are right.