The Centrality of the Ex Post Facto Clause

By Mike Dorf

My most recent Verdict column discusses last week's ruling by the DC Circuit in Hamdan v. United States. As I explain in the column, the court threw out Hamdan's conviction because the law under which he was charged criminalized violations of the law of war, but at the time of Hamdan's charged conduct, material support for terrorism--the charge brought against him--was not a violation of the international law of war.  I treat the ruling as an occasion to reflect upon the fact that more than eleven years after 9/11, the government still has not fully sorted out how to deal with detainees who are non-state actors.

Here I want to use the Hamdan case as an opportunity to raise some questions about the point of the constitutional prohibition on ex post facto laws.  The court construes the law under which Hamdan was charged as having no retroactive effect in order to avoid the constitutional question that would otherwise arise under the Ex Post Facto Clause of Art. I, Sec. 9.  Should we understand that clause as serving any function other than implementing the principle that no one may be criminally charged without notice that the conduct in which he or she engaged was prohibited?  If not, then the Ex Post Facto Clause is entirely redundant with the Due Process Clause.  But if it has some further content, what content might that be?

The original aims of the drafters and ratifiers are a useful starting point.  The records of the 1787 Convention indicate that the inclusion of the prohibitions on federal ex post facto laws (Art. I, Sec. 9) and state ex post facto laws (Art. I, Sec. 10), was mostly uncontroversial.  What opposition there was took two main forms: 1) Some thought that the ex post facto prohibitions were unnecessary because ex post facto laws are simply impermissible legislation (on something like natural law grounds); and 2) some thought that the prohibitions were dangerous insofar as they could be construed as barring retroactive civil legislation, which is, to some degree, unavoidable.  These objections were defeated on the respective grounds that: 1) an express prohibition is useful as a kind of insurance (see in particular Madison in Federalist 44); and 2) it would be understood that the clauses referred only to criminal laws, as a kind of term of art.

Thus I think it reasonably clear that the Framers regarded ex post facto laws as, in Hamilton's phrase in Federalist 84, among the "most formidable instruments of tyranny."  Why?  Well, that seems obvious enough.  A legislature that forbids conduct after it occurs can find anyone guilty of anything, because it deprives him of the opportunity to conform his conduct to law.  But is that consideration in any way independent of a right to notice, independently protected by the Due Process Clause of the Fifth Amendment?

From the framers' perspective, I think the answer is probably yes.  Today we think of the right to due process as including a right against certain classes of legislation as well as a right to certain sorts of procedures in concrete cases.  But circa 1787/1789/1791, the right to due process may have been thought to apply only in concrete cases.  It is thus notable that the Ex Post Facto Clauses can be found near the end of Article I, along with other provisions limiting the kinds of legislation Congress may enact, whereas the Fifth Amendment Due Process Clause can be found in the Bill of Rights, surrounded mostly by other rights against particularized actions.  (I say mostly, because some provisions of the Bill of Rights, such as the First Amendment, which poses a limit on the "law[s]" that "Congress" can "make," obviously are aimed at legislative abuses.) To paint with a broad brush, the founding era framers might not have thought of bills of attainder as violating due process; they would have thought of it as a legislative abuse instead.

Over time, notions of due process expanded to include what we now call substantive due process.  (For a useful description of that evolution during the first two-thirds of the 19th century, I recommend this article article by my former student Ryan Williams in the Yale Law Journal.)  But substantive due process was and remains controversial.  Less controversially, due process also came to be understood as generally limiting the content of legislation, including limiting retroactive legislation.  Accordingly, if the Constitution contained no Article I, Section 9 Ex Post Facto Clause today, all of the work that Clause does would be taken up by the Fifth Amendment Due Process Clause.

What about the Ex Post Facto Clause of Article I, Section 10, which binds the states?  Section 10 lists a number of limits on the states, most of which have to do with federalism and federal supremacy.  But three concern liberty: the Bill of Attainder Clause; the Contracts Clause; and the Ex Post Facto Clause.  (The oddball in the whole collection is the Title of Nobility Clause, which could be thought as an embryonic precursor to the Equal Protection Clause.)  Thus, at a time when the general view was that the federal Constitution did not need to set forth rights against the several states, one of the very few exceptions was the prohibition on ex post facto legislation.

Of course, today the Article I, Section 10 Ex Post Facto Clause is subsumed by the Fourteenth Amendment Due Process Clause, just as the Article I, Section 9 version is subsumed by the Fifth.  Should that trouble us?  I don't think so.  Instead, I would read the foregoing history as confirming two propositions.

First, it should remind us of the importance of notice to our constitutional understanding of the rule of law.

Second, the way in which the Constitution has become redundant should serve as a reminder that it is not the perfect Word of God.  Textualist or (to use a phrase coined by Akhil Amar) "intra-textualist" modalities of constitutional interpretation that attempt to mine every comma and semi-colon in the Constitution for hidden meanings likely overstate the importance of such phrasing choices to the framers and certainly overstate their importance to the People.

Now, it might be objected to that last point that I have unfairly taxed intra-textualism with redundancies that developed over the course of many years--that the juxtapositions that matter are the ones that were inserted into the text together, coming out of the same mind.  To which I say: why?  If the Constitution is supposed to be a work of genius, then shouldn't we expect later enacters to read it carefully before burying their new hidden meanings in its verbal interstices (like clues in a Dan Brown novel)?

My main point here is not to object to Amar's intra-textualism.  Judge Posner has taken that task for himself and done a much more detailed, humorous and, I daresay, vicious, job than I can.  And anyway, I don't even agree with most of Posner's criticisms.  E.g., I think Amar's reading of the Ninth Amendment is much more sensible and straightforward than Posner's--which attributes to its framers the goal of rebutting an inference that only an idiot would draw.  My main point here is simply to sing an ode (so to speak) to the Ex Post Facto Clauses.