Interesting People mailing list archives
Re: Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws
From: David Farber <dave () farber net>
Date: Mon, 18 Feb 2008 04:10:55 -0800
________________________________________ From: Peter Swire [peter () peterswire net] Sent: Sunday, February 17, 2008 4:06 PM To: David Farber Subject: RE: Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws Dave: Sorry to sound like a law professor, but this post was incorrect. I think it is bad policy to have retroactive immunity, but I haven't seen any plausible argument that such immunity is unconstitutional. 1. The Constitution does prohibit ex post facto laws. That means that Congress cannot make something *criminal* that was not criminal at the time of the action. So it would be unconstitutional if Congress now tried to make it a crime for wiretaps that happened earlier. 2. Another provision in the Constitution about retroactive laws is the Contracts Clause. That prohibits states from canceling contracts that they earlier entered into. (The Supreme Court has held that the Due Process Clause similarly prevent Congress from canceling statutes). So it would be unconstitutional if a state or federal government previously promised to pay the telcos, but now tried to pass a law that said the payment wasn't due. 3. By contrast, Congress and the states have at various times changed the liability rules for cases that had not yet gone to final judgment. This has come up, for instance, in the various tort reform statutes. The legislature gets to state what the liability (or no liability) rule is, and can change that rule with respect to acts that have not been adjudicated yet in the courts. Peter Prof. Peter P. Swire C. William O'Neil Professor of Law Moritz College of Law The Ohio State University Senior Fellow, Center for American Progress (240) 994-4142, www.peterswire.net -----Original Message----- From: David Farber [mailto:dave () farber net] Sent: Sunday, February 17, 2008 3:09 PM To: ip Subject: [IP] Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws ________________________________________ From: Gordon Peterson [gep2 () terabites com] Sent: Sunday, February 17, 2008 2:34 PM To: David Farber Subject: Re: [IP] Re: BEST LAW MONAY CAN BUY -- Senate votes Telecom immunity A recent post I read on the subject pointed out that the US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws... which means that for the pResident to press for, or for Congress to pass, such legislation would be a dereliction of their duty and their sworn oath of office... and thus, in fact, itself (another!) impeachable offense. -- Gordon Peterson II http://personal.terabites.com 1977-2007: Thirty year anniversary of local area networking ------------------------------------------- Archives: http://www.listbox.com/member/archive/247/=now RSS Feed: http://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com ------------------------------------------- Archives: http://www.listbox.com/member/archive/247/=now RSS Feed: http://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com
Current thread:
- Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws David Farber (Feb 17)
- <Possible follow-ups>
- Re: Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws David Farber (Feb 18)
- Re: Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws David Farber (Feb 18)