Subject:
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Re: Santorum Fails In His Effort To Pervert The Constitution
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Wed, 28 Jul 2004 19:36:56 GMT
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Viewed:
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2924 times
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In lugnet.off-topic.debate, Dave Schuler wrote:
> Is the stricken-down State Law X automatically reinstated upon the
> ratification of the amendment, or must it go through the whole legislative
> process again from scratch?
I'm guessing it would have to jump the hoops again. Maybe opinions on the law
changed in the meantime, and it wouldn't have passed after being made
constitutional.
> If Guy A’s conviction is thrown out in April but the amendment is ratified in
> October, can he be re-convicted, or is he off the hook (double jeopardy and
> whatnot)?
Ex Post Facto applies, preventing him from being punished according to a law
that is found to have been unconstitutional at the time that he violated it.
Laws can't apply to any actions that predate when they went into effect.
> If Guy A’s appeal doesn’t go before the Supremes until November (after the
> amendment has been ratified) can the Supremes still rule that, at the time of
> the conviction, the law was unconstitutional, thereby striking down his
> conviction even though the law is constitutional based on the new amendment?
I would think/hope so, though I can't recall any specific instances where it
might have happened in the past.
> By extension, if other people have been convicted under the same law that
> Guy A is appealing, some of them perhaps months or years before, could their
> convictions also be thrown out despite the new amendment?
They might have to jump through the token hoop of entering a new appeal to get
the paperwork moving, but once it's declared unconstitutional, it doesn't apply
to anyone, including people who plea-bargained under it (this could get tricky
if you volunteer to plead guilty to an unconstitutional law in order to avoid
prosecution on a different, constitutional law, since you _did_ abide by the
terms of your plea bargain, but now the law doesn't apply anymore).
> I guess this is mainly a variation on the idea of “ex post facto” which, if
> memory serves, means that laws enacted on a certain date cannot be
> retroactively applied to acts commited prior to that date. Is this
> definition correct?
That's pretty much it in a nutshell. Ex Post Facto is Latin for "after the
fact". Unless it's a continuing action that {started} before the law went into
effect, but is still continuing to violate the law as it stands, you can't be
prosecuted for it. If you stole something before it was illegal to steal, you
can't be prosecuted for that action when it becomes illegal to steal, but you
might be arrestable if it suddenly becomes illegal to possess stolen goods.
Assuming you haven't ditched the item in question by then. A lot of laws, like
city ordnances, are written to grandfather in sitations that would be in
violation without any direct action on your behalf, like not having an elevator
in a public building that hasn't been issued a building permit since it became a
requirement to meet code.
> Part of the reason I ask is because Michael Powell and The New Puritans have
> called for enormous (and, I’d say, ridiculous) fines against Howard Stern and
> Bono for utterances dating back months/years prior to the establishment of
> the new “indecency” fines (astute readers will recall that the Senate was
> working on this very legislation on the day that Cheney showed off his potty
> mouth). I may be incorrect in my understanding--perhaps the existing law
> allowed the FCC to apply fines at whatever level if felt was appropriate,
> and it simply upped the Ante in the wake of Janet's World-Shattering Breast.
That would be unconstitutional, if applied to instances where the words were
aired before the law went into effect (and could result in the entire law being
struck from the books), but it doesn't prevent them from going after you if you
{re-air} the same show at some later date after the law goes into effect.
Punishments, like laws, can't be applied retroactively, and doubly so if you've
already been cited on that particular violation (double jeopardy being
prohibited by the Bill of Rights).
> Interestingly, Oprah, on the same day that Howard was slapped with the fine,
> had a much more spectacularly graphic television program than anything
> Howard’s ever done, yet Oprah hasn’t been fined. Hmm…
Oh, that's because it's a documented fact that Oprah shoots laser beams out of
her eyes to destroy anyone who opposes her. No sane person would ever attempt
to fine her for idecency.
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