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April 8, 2023

"The Ex Post Facto Clause: Its History and Role in a Punitive Society"

The title of this post is the title of this new SSRN entry that is also the title of this new book authored by Wayne Logan.  Here is the SSRN abstract:

The Ex Post Facto Clause, one of the few civil liberty protections found in the body of the U.S. Constitution, reflects the Framers' acute concern over the tendency of legislatures to enact burdensome retroactive laws targeting unpopular individuals.  Over time, a broad array of Americans has invoked the protective cloak of the Clause, including Confederate sympathizers in the late 1860s; immigrants in the early 1900s; Communist Party members in the 1950s; and, since the 1990s, convicted sex offenders.  Although the Supreme Court enforced the Clause with vigor during much of the nation's history, of late the justices have been less than zealous defenders of the security it was intended to provide.  Even more problematic, their decisions have come amid major changes in the nation's social, political, and institutional life that have made the protections of the Ex Post Facto Clause all the more important.

The "Ex Post Facto Clause: Its History and Role in a Punitive Society" begins with a survey of the Framing Era history of the Clause and then examines and critiques the Supreme Court’s extensive case law interpreting and applying it.  The final chapters provide a blueprint for how the Clause can be reinvigorated to play a more robust role in guarding against the penal populism besetting modern American legislatures.

As the Framers of the Constitution were well aware, there always have been, and there always will be, disdained individuals to serve as politically attractive targets of burdensome retroactive laws.  Guided by this reality, the book undertakes a task of historic recovery with the ultimate goal of restoring the Ex Post Facto Clause to its intended constitutional role as a check on legislative excess, so needed in today’s unforgiving and harshly punitive political environment.

April 8, 2023 at 10:34 AM | Permalink


When it comes to RSOs, we've abandoned the Ex Post Facto Clause.

Posted by: federalist | Apr 10, 2023 10:26:08 AM

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