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Equally unjust in civil as in criminal cases

Don't Americans viscerally reject ex post facto laws, even in civil cases? Thomas Jefferson suggested as much in an 1813 letter when he wrote:

The sentiment that ex post facto laws are against natural right, is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong.

And yet...

  • In Michigan, the state House of Representatives this year passed a bill to to repeal a 1995 law that prohibited tort claims against pharmaceutical companies if the drugs had been approved by the Food and Drug Administration. The bill would wipe away more than a dozen years of legal protection for the companies by allowing retroactive lawsuits back to 1996. (More from Lawrence McQuillan of the Pacific Research Institute.)

  • In Washington, D.C., Democratic members of the House Judiciary Committee this week introduced a bill to revise the Patriot Act. As AP reports, one of the provisions "would repeal the retroactive immunity given to telephone companies, who complied with a Bush administration warrantless wiretapping program." The House bill, H.R. 3845, mirrors a Senate bill, S. 1692. See TheDay.com story, "Dodd looking to wipe out immunity provisions for telecoms."

For more on ex post facto, see this section of The Heritage Guide to the Constitution.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.