The Ex Post Facto Clause
Its History and Role in a Punitive Society
Published on 21. December 2022
Book
Hardback
312 pages
978-0-19-005350-5 (ISBN)
Description
The first comprehensive examination of the US Constitution's Ex Post Facto Clause, surveying its history and the critical role it can and should play in combatting the punitive tendencies of American legislatures.
The Ex Post Facto Clause, one of the few civil liberty protections found in the body of the US Constitution, reflects the Framers' acute concern over the tendency of legislatures to enact burdensome retroactive laws targeting unpopular individuals. Over time, a broad array of Americans have invoked the protective cloak of the Clause, including Confederate sympathizers in the late 1860s; immigrants in the early 1900s; Communist Party members in the 1950s; and, since the 1990s, convicted sex offenders. Although the Supreme Court enforced the Clause with vigor during the first several decades of the nation's history, of late the justices have been less than zealous defenders of the security it was intended to provide. And, even more problematic, they have done so amid major changes in the nation's social, political, and institutional life that have made the protections of the Ex Post Facto Clause all the more important.
The Ex Post Facto Clause provides the first book-length examination of the history of the Clause and its potential for tempering the punitive impulses of modern American legislatures. Wayne A. Logan chronicles and critiques the evolving treatment of ex post facto claims by the Supreme Court, which has created a body of law that is both at odds with the Framers' intent and ill-suited to the unforgiving and harshly punitive nation that America has become. Drawing on Framing Era history, seminal Supreme Court decisions, and the global embrace of the values underlying the Ex Post Facto Clause, Logan provides a blueprint for how the Clause can play a reinvigorated and more robust role in guarding against the penal populism besetting modern American legislatures.
The Ex Post Facto Clause, one of the few civil liberty protections found in the body of the US Constitution, reflects the Framers' acute concern over the tendency of legislatures to enact burdensome retroactive laws targeting unpopular individuals. Over time, a broad array of Americans have invoked the protective cloak of the Clause, including Confederate sympathizers in the late 1860s; immigrants in the early 1900s; Communist Party members in the 1950s; and, since the 1990s, convicted sex offenders. Although the Supreme Court enforced the Clause with vigor during the first several decades of the nation's history, of late the justices have been less than zealous defenders of the security it was intended to provide. And, even more problematic, they have done so amid major changes in the nation's social, political, and institutional life that have made the protections of the Ex Post Facto Clause all the more important.
The Ex Post Facto Clause provides the first book-length examination of the history of the Clause and its potential for tempering the punitive impulses of modern American legislatures. Wayne A. Logan chronicles and critiques the evolving treatment of ex post facto claims by the Supreme Court, which has created a body of law that is both at odds with the Framers' intent and ill-suited to the unforgiving and harshly punitive nation that America has become. Drawing on Framing Era history, seminal Supreme Court decisions, and the global embrace of the values underlying the Ex Post Facto Clause, Logan provides a blueprint for how the Clause can play a reinvigorated and more robust role in guarding against the penal populism besetting modern American legislatures.
Reviews / Votes
Professor Wayne Logan-renowned expert on sex offender registration, felon disfranchisement, and other collateral sanctions-now provides the definitive study of the Constitution's prohibition on retroactive laws. Logan shows that the Ex Post Facto Clause was originally intended as a broad protection of the most vilified and vulnerable against persecution. He provides a devastating critique of the US Supreme Court's history of contriving arbitrary exceptions to this fundamental principle and shows how these have contributed to excesses of the war on crime. This is first rate work. * Guyora Binder, SUNY Distinguished Professor, University at Buffalo School of Law, SUNY * An important contribution to our understanding of the punitive turn in US penal policies. Logan's comprehensive scholarship demonstrates the role of contemporary judge-made constitutional doctrine in enabling our long war on crime and recovers the lost constitutional tradition of checking the abuses of penal populism that would be vital to ending it. * Jonathan Simon, Lance Robbins Professor of Criminal Justice Law, University of California, Berkeley * This is a richly detailed account of an understudied constitutional clause that presents an innovative argument for its reinvigoration. Logan's work directly contributes to legal and historical scholarship on American constitutional and criminal law, but political scientists, sociologists, and criminologists interested in criminal justice reform will be interested in his prescription to use the provision to check punitive lawmaking. Many laws with retroactive impacts on the lives of convicted individuals-including those mandating sex offender registration and notification or prohibiting convicted felons from certain occupations, among others-do not receive ex post facto coverage under current doctrine. Logan's case for a new approach is fresh and valuable. * Anthony Grasso, Law & Society Review * This is a richly detailed account of an understudied constitutional clause that presents an innovative argument for its reinvigoration. Logan's work directly contributes to legal and historical scholarship on American constitutional and criminal law, but political scientists, sociologists, and criminologists interested in criminal justice reform will be interested in his prescription to use the provision to check punitive lawmaking...As research grows exploring the problems of American criminal justice, The Ex Post Facto Clause is a noteworthy contribution advancing a novel argument to reinterpret an oft-ignored constitutional tool to constrain punitive lawmaking. * Anthony Grasso, Wiley Online Library *More details
Series
Language
English
Place of publication
New York
United States
Target group
Professional and scholarly
Product notice
sewn/stitched
Cloth over boards
Dimensions
Height: 237 mm
Width: 159 mm
Thickness: 28 mm
Weight
570 gr
ISBN-13
978-0-19-005350-5 (9780190053505)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
Additional editions
E-Book
11/2022
OUP eBook
€16.99
Available for download
E-Book
11/2022
OUP eBook
€16.99
Available for download
Person
Wayne A. Logan is the Steven M. Goldstein Professor of Law at Florida State University. He is the author or co-author of several books and almost a hundred book chapters and law review articles, with work appearing in such publications as the Georgetown Law Journal, the Michigan Law Review, the Pennsylvania Law Review, and the Texas Law Review. He is an elected member of the American Law Institute and a past chair of the Criminal Justice Section of the Association of American Law Schools.
Content
Introduction
Chapter 1: Background and Early History
Chapter 2: The Supreme Court Weighs In: Calder v. Bull (1798)
Chapter 3: Formative Nineteenth Century Developments
Chapter 4: Late Nineteenth Century to 1990: A Period of Retrenchment
Chapter 5: The 1990s to the Present
Chapter 6: Recasting the "Punishment Question"
Chapter 7: Broadening the Scope of Coverage
Chapter 8: Global Perspectives
Appendix A
Appendix B
Index
Chapter 1: Background and Early History
Chapter 2: The Supreme Court Weighs In: Calder v. Bull (1798)
Chapter 3: Formative Nineteenth Century Developments
Chapter 4: Late Nineteenth Century to 1990: A Period of Retrenchment
Chapter 5: The 1990s to the Present
Chapter 6: Recasting the "Punishment Question"
Chapter 7: Broadening the Scope of Coverage
Chapter 8: Global Perspectives
Appendix A
Appendix B
Index