Ex post facto
- Legally Speaking
- Mar 1
- 4 min read
Written by Hannah Oommen on March 1st, 2025
Perhaps in fear of the future of America, James Madison includes the prohibition of ex post facto laws, protecting the rights of citizens while capping the abuse of power by lawmakers. Ex post facto, a Latin phrase for “after the fact,” lies under Article 1, Section 9, Clause 3 of the US Constitution, stating that one cannot be prosecuted for an action they committed prior to it becoming illegal. For example, imagine you buy marijuana in New York, and the next week, a bill has passed banning its sale. You are protected under the prohibition of ex post facto laws as you purchased the marijuana before it was banned. On the other hand, if the newly passed bill states that the possession of marijuana is illegal, you could be prosecuted if you still have the marijuana, as possession is an ongoing act.
James Madison and Alexander Hamilton wrote about ex post facto laws in the Federalist Papers. James Madison wrote in Federalist Paper 44 that ex-post-facto laws exploit the rights of the people and open the door to corruption, stating they “are contrary to the first principles of the social compact, and every principle of sound legislation.” Madison argues that ex post facto laws are against fair legislation and agreements that hold society together. In Federalist Paper number 84, Alexander Hamilton wrote that the “practice of arbitrary imprisonments has been, in all ages, the favorite and most formidable instrument of tyranny.” Hamilton explains that ex post facto laws open the door to an authoritarian government that can unreasonably prosecute individuals, expanding on James Madison's statement, emphasizing how laws should protect individual rights and not impose punishments. Ultimately, they believed that the laws were unjust.
Some delegates at the Constitutional Convention deemed the prohibition of ex post facto laws unnecessary. Delegates were skeptical that the prohibition of ex post facto laws would create distrust in the national legislature. Specifically, the public may think that the lawmakers were considering using ex post facto laws and that the prohibition was necessary to stop lawmakers from enacting them, thus instigating the notion that lawmakers could not be trusted. Likewise, during the Constitutional Convention, the opposition to the prohibition of ex post facto laws believed that it was inherently clear that ex post facto laws were unjust. Therefore, fair and understanding legislation would be aware of this and would refrain from implementing laws that concede with ex post facto laws. Thus, An explicit ban on ex post facto was considered redundant. Roger Sherman, a delegate from Connecticut, and James Wilson, a delegate from Pennsylvania and key framer of the Constitution, were two notable figures who were against the prohibition of Ex Post Facto for the reasons listed above during the constitutional convention.
Another key point regarding the prohibition of ex post facto was whether it applied to civil laws, such as contracts, taxes, and property rights, or just criminal rights. Some delegates wanted to address this in the constitution; however, the wording used to clarify it was rejected, leaving the scope of the prohibition somewhat ambiguous.
An example of ex post facto being argued in a civil case was Calder v. Bull (1798). Ms. and Mr. Caleb Bull were the stated beneficiaries, meaning they would receive Norman Morrison’s estate. However, they were denied their inheritance, which was given to Mr. Calder. The Bulls then tried to appeal the ruling a year and a half later; however, there was a state law stating that appeals must be made within 18 months. The Bulls persuaded the Connecticut legislature to change the restrictions, which they did, and then successfully appealed the case and later won the inheritance. Consequently, Calder, the initial inheritor to Morrison’s estate, brought the case to the Supreme Court, stating that the appeal violated the Constitution under Article 1 Section 10. Mr. Calder argued that since the case had occurred and passed before the law had been enacted, it should not be appealed.. Justice Chase noted during Calder v. Bull that while all ex post facto laws are retrospective, all retrospective laws are not necessarily ex post facto. Even "vested" property rights are subject to retroactive laws. Therefore, the Supreme Court ruled unanimously that the law was not an ex post facto law and that the Constitution does not protect citizens’ contract rights, drawing a distinction between criminal and civil rights. Criminal rights are rights given to individuals when being prosecuted—for example, due process, fair and speedy trial, right to a trial jury, etc. Civil rights are rights regarding concerns that one could not be prosecuted for by the government, including defamation wills and banned discrimination based on sex, race, religion, etc. Written for the people by the people, although the Constitution may not cover all problems in our modern government, James Madison's inclusion of the prohibition of ex post facto laws has helped protect the life and liberty of Americans.
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