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.

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