FISA FISA Amendment In Light of Calder v. Bull, 3 Dall. 386 1798
July 22,2008 
By Rick Lucke
As one peruses the Internet, various testaments to the “constitutionality” of the new FISA amendment can be found,
all of which cite one single court ruling that supposedly upholds the
amendment’s constitutional legality in response to the argument that
the amendment violates the Constitution’s prohibition against congressional
passage of ex post facto laws.
It could, and should, be argued that,
in addition to violating other elements of the Constitution, the retroactive
immunity clause in this bill is unconstitutional, via the “ex post
facto law” restrictions in the U.S. Constitution’s Article 1, section
9. The court ruling (Calder v. Bull,
3 Dall. 386 1798) that established general consensus regarding the ex
post facto provisions in Article 1, appears erroneous, not on point,
and must be revisited. “The Calder majority’s argument is easily refuted with the reasoning that there is nothing inconsistent
with interpreting the ex post facto prohibition as applying to all laws,
including civil laws.” That ruling enumerated examples of ex
post facto laws:
“…a law that destroys, or impairs,
the lawful private contracts of citizens…”
“…a law that takes property from
A. and gives it to B.” [Contradicting his own ruling]
“But I do not consider any law
ex post facto, within the prohibition, that mollifies the rigor of the
criminal law […] There is a great and apparent difference between
making an UNLAWFUL act LAWFUL; and the making an innocent action criminal,
and punishing it as a CRIME.”
There are a number of problems with
Chase’s opinion.
Chase’s opinion engages self-denial.
The Calder case dealt with a “law that takes property from A. and
gives it to B”, retrospectively, ex post facto, retroactively.
“The issue in the case,
which arose from the Supreme Court of Connecticut, was whether the act
of the Connecticut legislature to set aside a decree of a probate court
(which had the effect of divesting the appellants of certain property)
was an ex post facto law.” Chase specified exactly this situation
as being an ex post facto law (see above), yet did not support that
finding in the Calder case.
Another problem with Chase’s opinion
is that it does not appear to distinguish between section 9, which deals
with congressional legislative restrictions, and section 10, which deals
with state legislatures:
“It is thus problematic to base
an argument against the application of the ex post facto clause to civil
law [or all laws] on the existence of the contract and legal tender
clauses (as the Calder Court does), because those clauses do not
even appear in the section of the Constitution restricting laws that
Congress can make.” http://www.cato.org/pubs/
Chase’s opinion is imprecise, and appears
based upon section 10, not section 9, which leaves open the possibility
of applying the ex post facto prohibition to the current FISA debate.
Ex post facto restrictions exist as a
check against tyrannical oppression and manipulation of laws to governmental
self-benefit. Justice Chase’s distinction between oppressive
“retrospective” laws and “ex post facto” laws appears shortsighted
at best. Construing the prohibition on ex post facto laws so narrowly
that it allows for excusing governmental infringement on constitutionally
protected rights defeats the purpose of the prohibition. The “great
and apparent difference” Justice Chase saw between the two actions
to which he alluded would appear not to have such a “great and apparent
difference” in their end results.
As granting telecoms immunity for past
law-breaking deprives individual citizens of their legally sanctioned
rights to redress wrongs committed against them, this bill clearly violates
the spirit – the intent – of the ex post facto restrictions put
forth in the U.S. Constitution. As James Madison said in Federalist Number 44,
1788:
“Bills of attainder, ex post
facto laws, and laws impairing the obligations of contracts,
are contrary to the first principles of the social compact, and to every
principle of sound legislation. … The sober people of America are
weary of the fluctuating policy which has directed the public councils.
They have seen with regret and indignation that sudden changes and
legislative interferences, in cases affecting personal rights, become
jobs in the hands of enterprising and influential speculators, and
snares to the more-industrious and less-informed part of the community."
(Emphases added)
Telecom immunity in this case fits the
definition of “fluctuating policy” directing “the public councils”,
and violates the Constitutional restriction, upheld in Lochner v. New York,
198 U.S. 45 (1905), from passing any “law impairing the obligation
of contracts” (Article 1, section 10), as private citizens entered
into contracts with these telecoms, and disclosure of their personal
information to other parties without legal warrants was legally
prohibited, making that prohibition against warrantless disclosure an
element of those contracts (“rights vested, agreeably to existing
laws”). As part of the crime committed by this president and
these telecoms, citizens’ legally upheld
and protected right to privacy was violated. Granting immunity
for this violation interferes with individual citizens’ legal recourse
for having that right violated, in effect becoming a “law impairing
the obligation of contracts”.
It seems reasonable that the Founders
understood, and sought to prevent, the possibility of governments
decriminalizing previous criminality, either of their own or of
their accomplices, in order to protect themselves from investigation
and prosecution, which would seemingly explain the omission of any exceptions
to the ex post facto prohibition clause in section 9 of the Constitution.
President Bush’s unequivocal vow to veto any FISA bill not
granting telecom immunity leaves one hard pressed to conclude his motives
are any other than to insulate himself from investigation. With
the passage of this bill, one can only hope that there will be litigation
of the constitutionality of this bill, seeking to have it repealed.
Given the lawlessness of the George W.
Bush administration, it is reasonable to conclude it is time for the
courts to revisit Justice Chase’s opinion, and expand the meaning
and usage of the ex post facto provisions. A nation ruled by laws
cannot survive if Congress passes retroactive legislation that forgoes
the judicial process, also a violation of the Fourteenth Amendment’s
“due process” guarantees and other protections, in order to excuse
illegalities committed by those in power; such legislation violates
the separation of powers and undermines the intent of the ex post facto
prohibition. Obama has stated
one clear fact in his position on the FISA bill: “This potentially
weakens the deterrent effect of the law and removes an important tool
for the American people to demand accountability for past abuses.”
Surely this reveals the contradiction between this bill and the intent
of the Founding Fathers’ ex post facto prohibition. This bill
clearly, retroactively, favors the interests of one group over the rights
of private citizens, amounting to a judicial action, for which congress
has no authority.
The Bush Administration and the telecoms,
AT&T, Sprint and Verizon, knowingly conspired and engaged in an
illegal act. In excusing them via the passage of this bill, an
act from which Congress is expressly restricted by the Constitution,
despite Justice Chase’s mystifying opinion, Congress is conspiring
to commit further crimes against the Constitution and our nation.
A “nation of laws” cannot tolerate such blatant lawbreaking from
all levels of its government. Terrorists present no threat to
core American values, but Bush and this congress are undermining the
principles Americans cherish by ignoring the rule of law that the Founding
Fathers knew to be the only foundation for a democratic and free society.
By Rick Lucke
As one peruses the Internet, various testaments to the “constitutionality” of the new FISA amendment can be found,
all of which cite one single court ruling that supposedly upholds the
amendment’s constitutional legality in response to the argument that
the amendment violates the Constitution’s prohibition against congressional
passage of ex post facto laws.
It could, and should, be argued that,
in addition to violating other elements of the Constitution, the retroactive
immunity clause in this bill is unconstitutional, via the “ex post
facto law” restrictions in the U.S. Constitution’s Article 1, section
9. The court ruling (Calder v. Bull,
3 Dall. 386 1798) that established general consensus regarding the ex
post facto provisions in Article 1, appears erroneous, not on point,
and must be revisited. “The Calder majority’s argument is easily refuted with the reasoning that there is nothing inconsistent
with interpreting the ex post facto prohibition as applying to all laws,
including civil laws.” That ruling enumerated examples of ex
post facto laws:
“…a law that destroys, or impairs,
the lawful private contracts of citizens…”
“…a law that takes property from
A. and gives it to B.” [Contradicting his own ruling]
“But I do not consider any law
ex post facto, within the prohibition, that mollifies the rigor of the
criminal law […] There is a great and apparent difference between
making an UNLAWFUL act LAWFUL; and the making an innocent action criminal,
and punishing it as a CRIME.”
There are a number of problems with
Chase’s opinion.
Chase’s opinion engages self-denial.
The Calder case dealt with a “law that takes property from A. and
gives it to B”, retrospectively, ex post facto, retroactively.
“The issue in the case,
which arose from the Supreme Court of Connecticut, was whether the act
of the Connecticut legislature to set aside a decree of a probate court
(which had the effect of divesting the appellants of certain property)
was an ex post facto law.” Chase specified exactly this situation
as being an ex post facto law (see above), yet did not support that
finding in the Calder case.
Another problem with Chase’s opinion
is that it does not appear to distinguish between section 9, which deals
with congressional legislative restrictions, and section 10, which deals
with state legislatures:
“It is thus problematic to base
an argument against the application of the ex post facto clause to civil
law [or all laws] on the existence of the contract and legal tender
clauses (as the Calder Court does), because those clauses do not
even appear in the section of the Constitution restricting laws that
Congress can make.” http://www.cato.org/pubs/
Chase’s opinion is imprecise, and appears
based upon section 10, not section 9, which leaves open the possibility
of applying the ex post facto prohibition to the current FISA debate.
Ex post facto restrictions exist as a
check against tyrannical oppression and manipulation of laws to governmental
self-benefit. Justice Chase’s distinction between oppressive
“retrospective” laws and “ex post facto” laws appears shortsighted
at best. Construing the prohibition on ex post facto laws so narrowly
that it allows for excusing governmental infringement on constitutionally
protected rights defeats the purpose of the prohibition. The “great
and apparent difference” Justice Chase saw between the two actions
to which he alluded would appear not to have such a “great and apparent
difference” in their end results.
As granting telecoms immunity for past
law-breaking deprives individual citizens of their legally sanctioned
rights to redress wrongs committed against them, this bill clearly violates
the spirit – the intent – of the ex post facto restrictions put
forth in the U.S. Constitution. As James Madison said in Federalist Number 44,
1788:
“Bills of attainder, ex post
facto laws, and laws impairing the obligations of contracts,
are contrary to the first principles of the social compact, and to every
principle of sound legislation. … The sober people of America are
weary of the fluctuating policy which has directed the public councils.
They have seen with regret and indignation that sudden changes and
legislative interferences, in cases affecting personal rights, become
jobs in the hands of enterprising and influential speculators, and
snares to the more-industrious and less-informed part of the community."
(Emphases added)
Telecom immunity in this case fits the
definition of “fluctuating policy” directing “the public councils”,
and violates the Constitutional restriction, upheld in Lochner v. New York,
198 U.S. 45 (1905), from passing any “law impairing the obligation
of contracts” (Article 1, section 10), as private citizens entered
into contracts with these telecoms, and disclosure of their personal
information to other parties without legal warrants was legally
prohibited, making that prohibition against warrantless disclosure an
element of those contracts (“rights vested, agreeably to existing
laws”). As part of the crime committed by this president and
these telecoms, citizens’ legally upheld
and protected right to privacy was violated. Granting immunity
for this violation interferes with individual citizens’ legal recourse
for having that right violated, in effect becoming a “law impairing
the obligation of contracts”.
It seems reasonable that the Founders
understood, and sought to prevent, the possibility of governments
decriminalizing previous criminality, either of their own or of
their accomplices, in order to protect themselves from investigation
and prosecution, which would seemingly explain the omission of any exceptions
to the ex post facto prohibition clause in section 9 of the Constitution.
President Bush’s unequivocal vow to veto any FISA bill not
granting telecom immunity leaves one hard pressed to conclude his motives
are any other than to insulate himself from investigation. With
the passage of this bill, one can only hope that there will be litigation
of the constitutionality of this bill, seeking to have it repealed.
Given the lawlessness of the George W.
Bush administration, it is reasonable to conclude it is time for the
courts to revisit Justice Chase’s opinion, and expand the meaning
and usage of the ex post facto provisions. A nation ruled by laws
cannot survive if Congress passes retroactive legislation that forgoes
the judicial process, also a violation of the Fourteenth Amendment’s
“due process” guarantees and other protections, in order to excuse
illegalities committed by those in power; such legislation violates
the separation of powers and undermines the intent of the ex post facto
prohibition. Obama has stated
one clear fact in his position on the FISA bill: “This potentially
weakens the deterrent effect of the law and removes an important tool
for the American people to demand accountability for past abuses.”
Surely this reveals the contradiction between this bill and the intent
of the Founding Fathers’ ex post facto prohibition. This bill
clearly, retroactively, favors the interests of one group over the rights
of private citizens, amounting to a judicial action, for which congress
has no authority.
The Bush Administration and the telecoms,
AT&T, Sprint and Verizon, knowingly conspired and engaged in an
illegal act. In excusing them via the passage of this bill, an
act from which Congress is expressly restricted by the Constitution,
despite Justice Chase’s mystifying opinion, Congress is conspiring
to commit further crimes against the Constitution and our nation.
A “nation of laws” cannot tolerate such blatant lawbreaking from
all levels of its government. Terrorists present no threat to
core American values, but Bush and this congress are undermining the
principles Americans cherish by ignoring the rule of law that the Founding
Fathers knew to be the only foundation for a democratic and free society.