Ex Post Facto

One of the earliest constitutional protections we have–even before the Bill of Rights — is that neither the federal nor the states can pass ex post facto laws, which are laws that retroactively criminalize an act which was permitted before, or retroactively make the punishment worse than it was before, or changes the rules of evidence in such a way that makes it easier to get a conviction.

This means that if I do something that is not against the law today, and a law is passed forbidding it next week, I cannot be prosecuted for it, because the law criminalizing it was passed after the act. The term is derived from Latin meaning “out of the aftermath”.

The concept is only binding in terms of criminal law, but it seems to me that nowadays people are much more likely to condemn actions or statements or people from previous eras for things that are considered impermissible today.

For example, there was a move to rename Faneuil Hall in Boston, because its donor, Peter Faneuil, was a slave trader. Is slavery good? No. Was slavery back then morally right? No. Was it legal? Yes. Was it considered socially acceptable? At least in some circles, albeit not in others. I see no need to rename the building.

Lincoln held views on blacks that we would consider racist, but were in tune with his times. That does not diminish his accomplishments.

MeTV is running the first season of M*A*S*H right now. Watching them now, it’s amazing what a pair of harassers Hawkeye and Trapper were. It was considered funny back in 1972.

Any time the #MeToo movement comes up, my mother always retells the story of an executive at the First National Bank who would make passes at her while she was working there in the mid-fifties. I don’t get the feeling she was offended or felt threatened by him; she didn’t take him seriously. It was part of the culture then, though totally unacceptable now.

I think we have evaluate people or things in terms of their times, not in terms of how things are today. History is history, warts and all, and we should not be in a hurry to expunge it or remove the warts.

To be clear, I am not saying we should tolerate current offensive behavior. I don’t think it’s acceptable to treat women as objects, or to be racist. The First Amendment says that the government cannot throw you in jail for something you say or write. Period. It doesn’t mean that people or private entities have to tolerate statements they find offensive, or publish everything anyone cares to post. It doesn’t mean one can’t ostracize others they find abhorrent. It doesn’t mean I have to listen to your diatribes, and in fact, I probably won’t. (Certain relatives should take that as a hint.)

In terms of evaluating people, I think it’s more useful to consider their current behavior or opinions than to judge them on something they did long ago. Someone who is a sexual harasser today? They need to know they need to stop, and they need to stop now, and if they do not stop, they need to know they will be stopped, or be removed. Someone who did something stupid thirty years ago? I want to know if they’ve learned better. I’m a lot more tolerant of someone saying something racist in the 1860s than I am of someone spewing it now, in the 2000s. I also think it’s wise to recognize the possibility that people can grow, and change, and learn from their mistakes.

Photography Weekend

I really dislike football, and I really dislike the hype around the Super Bowl, and I dislike it more when the Patriots are involved, because the news stations around here don’t know when they’ve done a story to death. (WCVB, I’m looking at you). To get away from the nonsense, I have my own personal tradition of heading for the Cape to take pictures.

Frozen Charles

This weekend, I took it a bit further. I hadn’t been out in a while, so I drove into Boston on Saturday for a walk along the Charles. I’ve become very sedentary lately, and am feeling like a fatted veal calf, so I wanted to get some exercise. I decided to walk from the Cambridge Parkway, across the Old Charles River Dam to the North Point Park, over the footbridge across the tracks, under the Zakim Bridge, past the New Charles River Dam, all the way to where USS Constitution is docked in Charlestown. I took the camera with me, and decided to try to take some shots which would work in black and white.

When I got to Cambridge Parkway, which runs along the Charles near the Science Museum, I discovered the river was frozen. It was cold but comfortable, but we’d had some bitterly cold weather a few days before. It was a lot quieter than normal — no sound of water lapping at the edge of the water. Just an eerie silence, punctuated by an occasional dull thunk as the ice stressed and cracked.

Boats covered and tied up by the Museum of Science
Boats covered and tied up by the Museum of Science

Frozen Cape Cod

The next day, after a late breakfast I headed toward the Cape. I wasn’t sure what I was looking for, just that I wanted some scenery. I hoped I’d see some pack ice, but I wasn’t confident that I’d see any. I wasn’t disappointed.

My first stop was Sesuit Harbor. I’ve never been there before, but harbors are often fertile places for photography. The harbor itself didn’t do much for me, but I drove on past it, and found a beach area by the breakwater. Yes there was ice, yes, there were seagulls, yes, the clouds were starting to break, and yes, I took a fair number of pictures.

From there, I headed to familiar ground. First stop was Rock Harbor, where I found the harbor entirely iced in, with pack ice on the Bay beyond. It was fun playing with the angles and composition.

Next stop was Coast Guard Beach, on the ocean side of the beach. The winter beach is much narrower than the summer beach, and winter storms were already eating into the dunes. I went down from the overlook and walked along the beach a ways; at one point I could see a bit of a break in the dunes by the fork in the road.I have a feeling the road doesn’t have too many years left. As I was leaving the beach, I bumped into a guy who was telling me that the Park Service had carbon dated the cedar stumps the ocean had exposed, and found them to be about a thousand years old.

The last stop was First Encounter Beach on the Bay side, for sunset. By the time I got there, the tide had gone out; there were big chunks of sea ice scattered all over the tidal flats. Because First Encounter faces Cape Cod Bay, to the west, you get a sunset over the water, which is unusual on the East Coast. It was strange to see the sun setting much farther to the left of where it does during the summer; of course, this means it’s setting further to the south.