Announcer: Welcome to civil discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now, your host, Nia Rogers, public affairs librarian, and Dr. John Aughenbaugh, political science professor.
Nia Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
Nia Rodgers: I'm really good. Thank you for asking. How are you?
J. Aughenbaugh: I'm good. We are recording this podcast episode near the beginning of the official start of, I really don't spend all that much time making distinctions between seasons. I'm the person who just steps outside and says, oh, it's cold, so I need a jacket.
Nia Rodgers: I do that. My mom used to say, "Could you look to see if it's going to rain and maybe you want to take an umbrella?" I'm like, I got one in the car. You're not worried about it.
J. Aughenbaugh: I'm just like, one, I'm not going to melt.
Nia Rodgers: Oblivious.
J. Aughenbaugh: Two, so it's hot. I'm going to sweat. Big deal.
Nia Rodgers: Exactly.
J. Aughenbaugh: I got to admit. If I do have a favorite season, it's the start of fall, in part because I did grow up in a part of the United States, the northern part, where the changing of the leaves. Yes, I had to rake up a whole bunch of leaves, blah. But to me, I just like the colors.
Nia Rodgers: Leaf peeping.
J. Aughenbaugh: Peeping.Yes.
Nia Rodgers: I didn't know it was the thing until I found out a few years ago.
J. Aughenbaugh: But that's one of the great things about doing the spelling bee for the New York Times. If there's a PI or PEE, and then they have ING, they're always going to have peeping as a word.
Nia Rodgers: For listeners who do that and didn't know. I like it. I love the changing of the seasons, too. We used to drive up as a kid, drive up to the Blue Ridge Parkway.
J. Aughenbaugh: Parkway. Yes.
Nia Rodgers: You can drive down there, and it's beautiful. The colors are changing. It's gorgeous.
J. Aughenbaugh: The other reason why I'm excited, Nia, is we're going to be doing an episode about a clause of the US Constitution.
Nia Rodgers: I'm such a child.
J. Aughenbaugh: It's one of my favorite phrases, just simply because I love the way it rolls off my tongue. The episode is about the Constitution's prohibition on ex post facto laws. I just like saying ex post facto.
Nia Rodgers: It's fun when Latin is pronounceable.
J. Aughenbaugh: Yes.
Nia Rodgers: You get into some Latin words, and you're like, I don't know what that is. I don't like it. I don't like. Like, I have, what is it? The writ of certiorari? Hard for me to say. Like, that does not roll off the tongue. You know what I mean? You have to kind of stop and work your way through the word a little bit. As opposed to ex post facto, which just sounds like. It's got a nice ring to it, and we like it because it's a good thing. Sometimes, right, let us be clear that some clauses in the Constitution are not particularly clear. I have a right to bear arms. Does that mean my arms don't have to wear clothing, or does that mean that I have a right to bear arms? Like, I have the right to own bear arms, as in from a bear, or I get it. I know what they meant, but it's missing a comma. But anyway, it's I say bitterly. But there's some things that are left vague, and we've had that discussion many times over the years of they did that intentionally to give some room for growth and that thing. But this thing is straight up forward.
Nia Rodgers: Like, this is clear what they're trying to get at here, which is you don't get to say that something is illegal after someone did it. Which is a very toddler way of approaching the world if you get to just say, well, that's illegal because I just said so. Because if you can change the rules at any time, I'm not going to play your game. That would peeve me so much if Aughie and I were in the middle of Monopoly and he's like, I have decided no hotels. Wait. What? You can't just decide that. I just put two hotels on these different properties. I've decided we're not doing that.
J. Aughenbaugh: Or you have to pay a surcharge to put a hotel on a piece of property. Whoa, that's not in the rules, but I'm winning, so I get to decide.
Nia Rodgers: It's in the rules now because I said so. Which is a parental nightmare.
J. Aughenbaugh: For listeners.
Nia Rodgers: Where do we find ex post facto?
J. Aughenbaugh: Very good. Article 1, Sections nine and 10 of the United States Constitution. One covers the federal government. The other one actually covers state governments
Nia Rodgers: Which was unusual for the Constitution.
J. Aughenbaugh: Yeah.
Nia Rodgers: We try to do a whole lot of what to do.
J. Aughenbaugh: Particularly before the Bill of Rights. But so shorthand definition, listeners, this is the clause that forbids the federal and state governments from passing retroactive criminal laws. The example I always like to give, Nia, in my classes is today, thankfully, in the Commonwealth of Virginia, it's not a crime for an adult to drink 40 ounces of coffee in a day.
Nia Rodgers: Although for you, we'd make it a law. See, that's what this is preventing.
J. Aughenbaugh: But if tomorrow the Commonwealth of Virginia passed a law saying that everybody in the last five years who drank 40 ounces of coffee or more in a day is a criminal, okay? According to this.
Nia Rodgers: Aughie, he's going to prison.
J. Aughenbaugh: I'm going to prison for a long period of time
Nia Rodgers: Many egregious examples.
J. Aughenbaugh: Will only be seeing her daddy once a week during visitation. The poor child, she'll be like, yeah, so what do you think about the nectar of the gods now they're dad. That's what this clause was designed to address. This actually goes back to the purpose of law, Nia. The purpose of law is to create behavioral norms. If what you did on a given day was not illegal, but then they go ahead and pass a law and say, what you did yesterday was illegal, wait a minute, here, how was I to know that this was illegal? If one of the purposes of law is to create behavioral norms that all members of a society can aspire to comply with, well, then ex post facto laws detract from that purpose of law. That's why you have the prohibition. Likewise, no increase. You're talking about no retroactive crimes. You're also talking about no increased penalties. Let's just say, Nia, you are criminally minded, and you're trying to decide.
Nia Rodgers: Hey, let's not say that. I am criminally minded. Let's be honest.
J. Aughenbaugh: I'm trying to be generous here with my hypothetical.
Nia Rodgers: I will go 5 miles over the speed limit if it is possible to do so, if traffic is moving appropriately, and I'm not going to endanger myself or others, even though I know good and dang well what the speed limit on a road is.
J. Aughenbaugh: Well, and part of your calculation with the example you just gave is if I go 8 miles over the speed limit, I know I might get pulled over and be given a citation by a police officer. Because I know what the punishment more than likely will be, I'm willing to accept that in my cost-benefit analysis I'm doing in my head. Again, you are calculating your behavior based on what you know will more than likely be the punishment if you do get caught.
Nia Rodgers: That's true. If, after I got caught, they said, and we're putting people to death for going 5 miles over the speed limit. I would say, whoa. If I had known that, I would have gone the speed limit. No, I see what you're saying with that. If I know that the ticket is going to be $50. I'm making a reasoned decision about what I'm going to do here. If I get to the court and they say, oh, no. What we've decided is that the fine is $10,000.
J. Aughenbaugh: Dollars, you're like, I may not have engaged in that criminal behavior if I knew that. Likewise, the prohibition on ex post facto laws also applies to evidence rules. Again, people who are criminally minded may make a decision on whether or not they're going to engage in a criminal act, if they think they can get away with it because certain evidence can't be presented in court. But if they change the evidence rules now all of a sudden, the evidence you thought could never be presented in court now can be- oops- again, this is part, and I know some of our listeners are just like, when the heck did this turn into how to become a criminal by Nia and Aughie? Well, again.
Nia Rodgers: Not what we're saying.
J. Aughenbaugh: Say, one of the purposes of law is to create behavioral norms.
Nia Rodgers: Set clear societal boundaries. Aughie, now, this doesn't happen what we're talking about these egregious examples, but it could happen in something like, what if a state decides that you can compel a spouse to testify against a spouse, which currently, in most states, you cannot do that cannot compel within the marital relationship testimony. But what if they changed that after someone committed a crime? We're going to compel you to rat out your spouse. Going forward, that's going to change people's behavior about marriage. If you have no protections within the marital bond, then why have the marital bond
J. Aughenbaugh: Likewise, many of the state laws that protect privileged information are based on what you just described, Nia, so whether it's doctor-patient, priest-minister and penitent. A counselor and their patient. They are all designed to because the assumption is more communication is better. We want spouses to communicate with one another. But.
Nia Rodgers: As the theory. I think you and I both know that doesn't always work in practice, but that is the theory.
J. Aughenbaugh: That is the theory. But if all of a sudden they change that after years of you talking to your spouse.
Nia Rodgers: Or your counselor.
J. Aughenbaugh: Or your minister or whatever. Now all of a sudden, you're like, Hey, whoa. I wouldn't have shared all that information if I knew it could be used against me in a court of law.
Nia Rodgers: I would not have confessed to my priest that I drink 40 ounces of coffee every day if I had known that he was going to be compelled to tell the court that this now illegal action had been going on for years.
J. Aughenbaugh: Series. Yes.
Nia Rodgers: The other thing too here is, I think that some people forget that almost everything in the Constitution comes out of some crap that the Royals did to the colonies. Almost everything in there can be traced back to something that the Crown did. That we fought a war to get away from. This reads that way to me in the sense that the Crown's word would be arbitrary and capricious. Like, I have decided as the Crown that I don't like this behavior. Now I'm going to make it illegal, and I'm going to punish people who did it before.
J. Aughenbaugh: Yes.
Nia Rodgers: We see that with being Catholic. When Henry comes in, and he's like, I want to get married a bunch of times, and the Pope's like, not so much. And he goes, oh, well, then I'm out of here. Peace out. I'm going to start my own religion. By the way, it was more complicated than that. I'm being very light hearted. But anyway, then you proceed to punish people retroactively for being Catholic when they were Catholic, because everybody was Catholic, and that's what you were supposed to be according to the royals. It's not that other religions didn't exist. I'm saying that for a long time, Catholicism was the way to be, and then all of a sudden, one day, it wasn't anymore.
J. Aughenbaugh: The King's like, I want to get divorced.
Nia Rodgers: I want to get divorced and remarried, and I'm thinking she's a hottie, and I don't care about the church.
J. Aughenbaugh: By the way, all of you who support that church, you're now criminals. I'm going to use as evidence the fact that for all your life, you've been attending Mass. What? What?
Nia Rodgers: I'm going to take all the money out of the Abbeys for that reason they're. Wait.
Nia Rodgers: That's the thing where they're like we're not letting this happen to us. We're going to put it in the Constitution that the president can't do that. He can't be arbitrary in that way and the criminal justice system can't be arbitrary in that way, that it's not fair. To be held against you when you didn't know the thing was going to eventually someday be illegal?
J. Aughenbaugh: Yes, now, there is.
Nia Rodgers: The bargain on the other side, by the way, does not work. If you are doing illegal thing under the hope that at some point it will become legal, read smoking marijuana. That doesn't work in the other direction. If you're breaking the law, you're breaking the law. In your argument in front of the court of it shouldn't be the law will be absolutely met with laughter. Like it will just not be.
J. Aughenbaugh: You got arrested for a crime, a well established criminal statute. Then a state government like five years later, says, on second ought.
Nia Rodgers: It should be to make that illegal.
J. Aughenbaugh: Legal, you can't then go ahead and appeal and say, now that they've gotten rid of it, I should be let go.
Nia Rodgers: That was going to be my question to you, one of the things that we have now is because the laws are relaxed about marijuana in most states. Should the people who are in prison for having had marijuana before be allowed out?
J. Aughenbaugh: Could a jurisdiction reduce their senses with a future law or say their senses should be commuted? Well the government can do that. What you can't do is going to commit a crime.
Nia Rodgers: You said, "They didn't commit a crime."
J. Aughenbaugh: This is no longer a crime, so you should let me go. No, when you engaged in the behavior you knew that that was illegal. Again, that's one of those instances where you can't go and say, judge, I didn't know it was illegal. Again ignorance of the law is not a defense.
Nia Rodgers: We've always had that to be the case, which is in some ways unfortunate. Because if you don't know something is illegal, because in one jurisdiction, it is and in another jurisdiction, it isn't that can be a complex.
J. Aughenbaugh: In listeners, we'll probably do a future episode where we talk about how there are too many laws probably in the United States.
Nia Rodgers: That's not OGs are criminals, that's not we're like, do there's too many laws. We should be able to rob and steal and drive really fast and do all the things we want to do. No, we don't things. You're right it's pretty complex system of from county to county, city to city, state to state.
J. Aughenbaugh: Then compare state government to the federal government. On any given day, according to some scholars, most Americans are breaking the law and they don't know that they are.
Nia Rodgers: Something that they're doing is illegal somewhere in the where they are and peace be upon you if you move.
J. Aughenbaugh: Good Lord. Yes.
Nia Rodgers: Try to figure out what's illegal in one place and not illegal in another. It wasn't illegal in North Carolina well, it is here.
J. Aughenbaugh: When you move, then you got to go ahead and register your car, register to vote, and you're just like, oh, so I did it this way back in Virginia, but now I'm in Montana.
Nia Rodgers: Virginia allow you a three year tag, and Montana, they're like, we don't let you do that, that's crazy.
J. Aughenbaugh: We'll probably do an episode in part because the cost of having so many laws, I don't think a lot of people understand that every time we put pressure on the government to pass a new law, that's a new law on top of all the already existing laws. Legislatures are not really good at going because we've done a previous podcast episode about silly laws. How many of them which was a very entertaining episode.
Nia Rodgers: It was fun, but it's also sad.
J. Aughenbaugh: Because some of these laws that are still on the books, were created like in the early 1800s.
Nia Rodgers: They don't really apply in the modern world or they could apply dangerously in the modern world if you had an overzealous. What do the Supreme say about ex post facto?
J. Aughenbaugh: This is interesting. The Supreme Court has said the prohibition on ex post facto laws applies in the criminal law sector, but not in civil court.
Nia Rodgers: Is that because you lose your freedom in criminal court? Was in civil court, you just lose your monies. Like, they don't put you in prison in civil court ever.
J. Aughenbaugh: No, you just get fined.
Nia Rodgers: You can get the snot find out of you. It could be million dollar judgments which can feel like prison. But you are not being deprived of your liberty.
J. Aughenbaugh: You life or your liberty, and this all flows from a case that was decided in what year was that? Calder versus BL. I'll have to go ahead and look that up.
Nia Rodgers: About 1938?
J. Aughenbaugh: It was before 1938? Calder versus. It was in the early 1800s.
Nia Rodgers: Oh, 1798.
J. Aughenbaugh: Oh, 1798, there you go.
Nia Rodgers: For anybody who needs a citation three US 386.
J. Aughenbaugh: That's very good.
Nia Rodgers: 1798.
J. Aughenbaugh: The Supreme Court held that the prohibition only applied to criminal matters, not civil matters and went ahead and actually listed four categories of unconstitutional ex post facto laws. The case actually arose in the fine state of Connecticut.
Nia Rodgers: Connecticut.
J. Aughenbaugh: Yes, when people immigrate to the United States, they're like, what happened to the first T in Connecticut?
Nia Rodgers: We're like Connecti cut which is how I say it so I can remember spell it correctly. Is that the case where where they start to lay the groundwork of judicial review. Like, they can say something is unconstitutional.
J. Aughenbaugh: Yes and they didn't officially say we have the power of judicial review until Marbury versus Madison.
Nia Rodgers: But they're laying the groundwork here by going. I'm not about the constitutionality of this thing.
J. Aughenbaugh: It was John Marshall who was just like, we need to go ahead and lift up the veil, we need to be transparent and oh by the way, Thomas Jefferson, I know you're not going to like it, but I'm going to go ahead and stick it to you anyways.
Nia Rodgers: Exo John Marshall.
J. Aughenbaugh: John Marshall.
Nia Rodgers: I would love it if we ever found a letter like that.
J. Aughenbaugh: I would love a majority opinion that goes ahead and concludes with hugs and kisses the majority.
Nia Rodgers: That's right exo lezo us and then just leave it like that. We don't have it in civil law, we only have it in criminal law.
J. Aughenbaugh: Criminal law, yes.
Nia Rodgers: We're laying the groundwork for the Supremes being able to say what's constitutional and what's not constitutional. How does it come to be applied?
J. Aughenbaugh: Moving forward, there are going to be a couple areas, listeners that we think that you ought to pay attention to. One, in regards to the IRS imposing penalties on previous behavior.
Nia Rodgers: That's right. They can if you don't pay your taxes, they can come back later and say, I'm looking that money.
J. Aughenbaugh: We're going to punish you.
Nia Rodgers: I had forgotten that because I don't do that, but people do.
J. Aughenbaugh: Yes.
Nia Rodgers: That's legal, that's one of the areas where they can do it.
J. Aughenbaugh: In 1938, the Supreme Court held that the standard on retroactive taxation, is a problem. But they also recognized, that the tax code so frequently changes, that what you might thought was a perfectly legal tax deduction has now been declared an illegal tax deduction. This is the reason why the Supreme or the IRS frequently tells you, you need to consult the IRS for the updated, if you will guidebook on what is or is not an appropriate deduction on your taxes.
Nia Rodgers: But they still can't retroactively make you pay that. Because it wasn't when you filed your taxes, that thing was not taxable.
J. Aughenbaugh: But this is where you end up having to go to the Federal Tax Court. Because frequently, you have to prove it.
Nia Rodgers: That year this thing was not taxed.
J. Aughenbaugh: This was an allowance.
Nia Rodgers: I didn't list it. I will list it going forward because it is now, I wonder how exciting tax court is. Probably on most days, it's like watching paint dry.
J. Aughenbaugh: Paint dry.
Nia Rodgers: Technical.
J. Aughenbaugh: There's a particular assumption here. Congress allows you to appeal a decision by the IRS to the federal tax court, but most Americans don't want to go through the BS of appealing, particularly if the penalty and the fine is just like, cost benefit analysis.
Nia Rodgers: If the percentage that I'm supposed to give the government is $61.48. The lawyer is going to cost me $250 an hour because I've got the cheapest lawyer there, I'm still losing money. Then it's either a principal thing.
J. Aughenbaugh: I screwed up.
Nia Rodgers: I'm just paying.
J. Aughenbaugh: I don't think I screwed up, but I'm not going to want to deal with the IRS any longer than I have to.
Nia Rodgers: I imagine that the IRS wins a lot of its cases by attrition. What I mean is you just like, I don't have it in me to keep fighting with you, so I'm just going to pay this and leave me alone.
J. Aughenbaugh: It's like dealing with so many bureaucracies. After a while, you just do a quick cost-benefit analysis in your head. Do I really want to go ahead and prove that point? Or do I just want to move on with the rest of my freaking life?
Nia Rodgers: I imagine the people who end up in tax court aren't people, they're corporations. They're people with endless wells of money and lawyers. Banks and lawyers they can so anyway.
J. Aughenbaugh: The other controversial issue or type of case is one concerning laws that impose registration requirements on convicted sex offenders. This arose in the late 1990s, the early part of this millennium, when various states and the federal government passed laws that required convicted sex offenders when they were released from prison to register with the authorities so that states in the federal government can create a list of sex offenders.
Nia Rodgers: That was not just going forward, that was people who had committed the crime before that law was passed, they also had to register. They went back to people who had been released from prison 10 years before, who had committed an offense of this nature and said, you're going to have to be on the registry. The courts found that acceptable.
J. Aughenbaugh: That is correct.
Nia Rodgers: Is that a public safety thing? Is that because they felt like public safety outweighed.
J. Aughenbaugh: The case is Smith versus Doe from 2003. What the Supreme Court said was, these laws are not imposing additional punishment. This is merely a registration requirement. Yes.
Nia Rodgers: I feel like there's an argument to be made that it is a punishment.
J. Aughenbaugh: Yes.
Nia Rodgers: If nothing else, it's a cultural and social punishment. But not that I am pro sex offender because I am not. I'm glad that we have a registry, because I think it allows parents to be aware of who's in their neighborhood and who may be especially if there were children involved in the original offense, I don't think people should lose all of their rights, but I do understand why there should be protections.
Nia Rodgers: If you think that the behavior may be ongoing or could be ongoing ongoing.
J. Aughenbaugh: Yes. If there's the likelihood that that behavior will repeat in the future, can not society take steps to go ahead and protect the most vulnerable members of its society from those criminals? This prohibition in the Constitution has risen in regards to SVP laws, sexually violent predator laws, which allow for the indefinite commitment of a person with a mental abnormality which predisposes them to molest children, Here, the Supreme Court reversed the decision of a Kansas Supreme Court and ruled that the law was constitutional on the basis that the law did not impose, again, a criminal punishment. Go ahead, Nia.
Nia Rodgers: That case, though, the Kansas v. Hendrix, has an interesting feature to it. Mr. Hendrick had a long history of sexually molesting children, and he was scheduled to be released from prison. This law comes through, and then he gets committed on the grounds that he has a mental abnormality.
J. Aughenbaugh: Yes.
Nia Rodgers: He says, no, you cannot try me. First of all, double jeopardy, right? You can't try me for the same crime again. You've already punished me for that crime. Also, you can't just make stuff up to keep me in prison. The Supremes upheld that he could be then institutionalized because institutionalization was not a criminal punishment, meaning, he didn't go to prison. He went to a hospital where he was, I assume, involuntarily committed. It sounds to me like he does not want to be voluntarily committed. I have complex feelings about that, Aughie. I'm just going to tell you. There's a part of me that's like, this guy's got a long history of hurting children, and he should not be out where he can hurt more children, but then there's another part of me that's like, how many times do you pay for your crime, and in what ways?
J. Aughenbaugh: This is complicated for me. Again, locking people up because they may harm children, I think, is one of the fundamental things that a government should do. We should be protecting our most vulnerable people in our society. On the other hand, changing the rules, I go back to something you said, Nia, at the beginning of the podcast. Changing the rules while the game is being played strikes me as arbitrary and capricious. This is not what you do in a society with a rule of law. Going forward, fine.
Nia Rodgers: If you are convicted of this crime, you will serve time in prison, and then you will go to an institution.
J. Aughenbaugh: Applying it to somebody who was arrested and convicted and punished under a previous law, which did not allow for the state to put you into a mental health facility after you served your sentence in prison, strikes me as ex post facto, and I disagree with the Supreme Court's ruling in that regard.
Nia Rodgers: I do, too. It's not because Aughie and I are pro-molesters. No. I think that I speak for Aughie and myself when I say, let us sit in a room alone with this guy, and let's see if he ever has the desire to do anything at all anymore. Both of us are very highly protective in this particular instance. I don't think it's fair in this instance. If somebody has a history of physically harming children, we could solve that with a shock collar. I go in the other direction, which is not okay either because that is cruel and unusual. It's finding the sweet spot where you are preventing someone from acting in a way that is super violent or super harmful but not harming them. The other thing maybe is a collar that yells all the time, "I'm a child predator, I'm a child predator," so whenever you get around anybody, they're like, now I know who you are.
J. Aughenbaugh: Nia, our friends in the criminal justice realm, scholars and other people who we work with, will go ahead and say, at that point, we've given up hope that we can rehabilitate these individuals. I'm like, fine, fair point, but are we willing to concede that there are some individuals who cannot be rehabilitated?
Nia Rodgers: I'm not sure that we could have gotten Jeffrey Dahmer to stop eating people if we hadn't put him in prison. Yeah. Okay.
Nia Rodgers: Ted Bundy proved over and over and over again that prison did not prevent him from killing people because he'd break out of prison and go kill people. That's a compulsion [inaudible] .
J. Aughenbaugh: They have a psychosis that no amount of rehabilitation is going to be able to fix.
Nia Rodgers: In many instances with predators, they are often trying to reach the point where they manage their desires so that they don't actually act on the desire. I could conceivably want to poison all of my colleagues, which I do not, but until I do it, it's a fantasy. Do you punish people for their fantasies? It's very complicated. Can I ask a question about something completely not related to sexual predators?
J. Aughenbaugh: Go ahead. I hope that we can move on, to be quite honest.
Nia Rodgers: My experience of copyright tells me that Disney would apply the ever living crap out of things retroactively if it kept Mickey Mouse out of the hands of fake Mickey Mouse things. Does it apply in those instances?
J. Aughenbaugh: No, it does not. We covered this previously in an episode with our colleague.
Nia Rodgers: Catherine?
J. Aughenbaugh: Yeah, Catherine. The Copyright Term Extension Act, which we discussed at length in that podcast episode, it was technically retroactive because it affected both new works and existing ones, but the Supreme Court in Eldred v. Ashcroft went ahead and said that it did not violate the ex post facto clause because it was regulatory in nature, not criminal. The due process clause, Nia, has life,
liberty, and property. The court's application of the ex post facto prohibition seems to only concern life and liberty most of the time, certainly not property.
Nia Rodgers: Less worried about property.
J. Aughenbaugh: I'm pretty sure the framers thought property was the most important of those three. This always struck me as odd. On one hand, this is a very clear clause. We know why it originated, what the British crown was doing that so upset the framers. Woodrow Wilson once said, it's far easier to write a constitution than it is to run one, and this is an excellent example.
Nia Rodgers: That's true of revolutions. It's super easy to have a revolution. It's almost impossible to make a government afterwards that will stand. That's why you have many failed revolutions and only a few that succeeded because it's really easy to get everybody pissed and get them out on the street fight and pushing and doing whatever, but then the next day, you're like, now what do we do?
J. Aughenbaugh: What's next?
Nia Rodgers: It's the dog that chases the car, and it catches it, and they're like, now what do I do?
J. Aughenbaugh: What do I do with this car?
Nia Rodgers: I don't have any place to store this car. My dog house is a third of the size of this car.
J. Aughenbaugh: I can't chew on it like a can of bone.
Nia Rodgers: Great. What do I do now?
J. Aughenbaugh: The other context I want to explore before we finish this episode, Nia, actually flows from the Second Amendment. Many states have passed domestic violence offender gun bans. You can't legally own a firearm if you have been convicted of a misdemeanor or especially felony domestic violence offenses. If you are found guilty, if you are found to have a firearm afterwards, these laws can put you into state prison or federal prison for up to 10 years whether or not you use the weapon in the commission of a crime, and again, the way the federal courts have ruled on this, Nia, is that this is regulatory and not punitive.
Nia Rodgers: I struggle with this one, too.
J. Aughenbaugh: So do I.
Nia Rodgers: Aughie and I met in 2015, 2016, somewhere along in there. It's been about 10 years. If Aughie bought the gun in 2005 and was doing gun practice and blah, blah, blah.
J. Aughenbaugh: I get arrested and convicted for a domestic violence charge of some kind, according to this ban, I now can be prosecuted.
Nia Rodgers: For the gun you bought in 2005 long before you ever met me before we had this tussle and I get you convicted of, I don't know.
J. Aughenbaugh: Even if I never used the gun in the domestic violence incident.
Nia Rodgers: You're just yelling or whatever, threatening because misdemeanor is a threat.
J. Aughenbaugh: Folks, listeners, let's be very clear. Nia and I are not pro-domestic violence perpetrators. No, no, no.
Nia Rodgers: No, no, no. We're Gen X. You take them behind the stadium, you take them behind the bleachers, and one of you comes out, and it's not them.
J. Aughenbaugh: It's not them. Again, we're not advocating violence, so listeners, please do not flood our email inboxes.
Nia Rodgers: I didn't say they were. I just said they got a lesson. We had a potentially slightly physical discussion.
J. Aughenbaugh: The distinction that the federal courts have drawn between something being a regulation versus something being punitive, I'm just like, but you are being punished for an action that was not criminal when you went and got the gun before you committed the offense.
Nia Rodgers: The domestic violence offense.
J. Aughenbaugh: [inaudible]
Nia Rodgers: You commit the domestic violence offense. They put you in jail. You deserve it. We're good with that. You get out of jail, and I guess you go home, and you sell your grandfather's rifle that was left to you in his will because you're not allowed to have it anymore.
J. Aughenbaugh: Yes.
Nia Rodgers: How many people though know that about their obligation. I get where you would say, and you may not buy a new gun.
J. Aughenbaugh: Yes.
Nia Rodgers: You may not purchase a gun from here on out, you cannot add to your arsenal. I totally would be down with that, I would be down with, well, you've lost the privilege of purchasing weapons.
J. Aughenbaugh: Or in some states, the only necessary condition is that a restraining order has been sworn out against you?
Nia Rodgers: That's a terrible idea because we have crazy people who will get restraining orders when someone did not actually threaten them with true harm.
J. Aughenbaugh: I know some divorce attorneys who on the regular, tell their clients, well, if you really want to go ahead and stick it to your soon to be ex, swear out a restraining order against them. Again, the assumption is we want to stop ongoing violence or likely future violence. Again, that's a good thing.
Nia Rodgers: Yes. We want restraining orders, we want them to actually work.
J. Aughenbaugh: Work.
Nia Rodgers: Which many times the person walks right through a restraining order.
J. Aughenbaugh: But now you're tying some other civil liberty that it's not been proven in a court.
Nia Rodgers: That the person, did it.
J. Aughenbaugh: Did it. I'm just like, again, that strikes me as arbitrary and capricious when the assumption is of course, you use the gun. Wait a minute here, the restraining order is because allegedly I threatened them. Whatever the case will be.
Nia Rodgers: Who did some other behavior that didn't involve a weapon.
J. Aughenbaugh: But when did I have the opportunity to go ahead and show that one, I didn't do it, and then two, I didn't use the gun even if I did do it.
Nia Rodgers: If you did use the gun, then we should be able to take away your gun.
J. Aughenbaugh: Sure.
Nia Rodgers: That's clear. If you threaten somebody with a gun, we should be able to say, oh, you don't get to hold that anymore, give me that. These get rather complicated, I think. It seems like a simple phrase, it seems like a simple thing. You can't make a law that affects laws, that criminalizes behavior before this.
J. Aughenbaugh: After the fact.
Nia Rodgers: Totally, and then you start digging down into it and you're like, oh, this is a can of worms. Thanks founders, yet another can of worms.
J. Aughenbaugh: Scholars don't even agree that the Supreme Court got it right with the Calder versus Boll decision. Nia, I came across easily five different law journal articles where the scholar was just like, I don't think there's quality reliable historical evidence to suggest that the framers meant to exclude civil court proceedings. Because as we acknowledged in this podcast episode, sure, in a civil court, they don't throw your butt in jail if you were found responsible for harming somebody. But the jury or the judge can go ahead and give you award the plaintiffs compensatory and punitive damages that you may be paying the rest of your life. You didn't know when you engaged in the disagreement or whatever the case may be, that is at the heart of a civil case. You may not have known that what you were doing would lead to you being paying thousands if not millions of dollars the rest of your life. How's that not in violation of ex post facto.
Nia Rodgers: Can I say that my whole pet peeve about ex post facto is, I have several, as you've heard, several peeves, but this is my biggest pet peeve, which is that somehow we have allowed there to be a congressional loophole that if Congress makes a new law and they want to make it retroactive, they can write that into the statute. I'm like Congress is the definition of arbitrary and capricious. I agree and I
appreciate that the courts in some instances are pushing back and saying, Congress easy there. You need to slow down a little bit.
J. Aughenbaugh: The example that we gave in regards to copyright laws, and again, our colleague, Catherine, it just drives her bonkers.
Nia Rodgers: Yes.
J. Aughenbaugh: We understand we have copyright laws to give an incentive to artists, to creators.
Nia Rodgers: Your work will be protected for a certain amount of time. Create that art. Especially considering that you're almost never going to make the money that it took you to make the art. That's how we entice you to engage in this financially losing behavior.
J. Aughenbaugh: Yes, we're not against that capitalist.
Nia Rodgers: That's a good way to do it.
J. Aughenbaugh: The point that Catherine made on our podcast episode, at some point in time, the rest of society should have the opportunity to enjoy it. But then if Congress can go back and extend the copyright protection that a whole bunch of people who were already beginning to use that previously copyrighted material or were thinking about doing so can't. They are being punished, they are losing out on their own potential financial, if you will, opportunity because some well heeled folks see Disney, but other organizations. Let's be very clear, other companies, we're able to lobby Congress to go ahead and extend it even further. When they created that material in the first place, they had no expectation that after 75 years, we would still be able to go ahead and draw royalty checks for the movie or the music that we created. What? Again, you're changing the rules game, and again, that strikes us as problematic in a nation that's allegedly based on the rule of law.
Nia Rodgers: The thing about all the phrases in the Constitution is that there is it is a reaction to something the crown did.
J. Aughenbaugh: Frequently.
Nia Rodgers: At the time, it seems relatively clear.
J. Aughenbaugh: Yes.
Nia Rodgers: Because I don't think the founders deliberately wrote things to be difficult. I don't think they were like, no, they'll never fork out what do you mean by this? I don't think that was maybe some of them, but most of them did not do that. But then modern existence. I guess what I'm getting at is it's really good in some ways to have the court system because the Constitution remains a living breathing. Just the world is very different than it was when the founders created it. But in some ways, the court system just makes things more opaque.
J. Aughenbaugh: I often wonder, there seems to be disconnect because many people don't then go ahead and say, I disagree with what the court did. Is there a way for us to go ahead and put pressure on
our elected officials to respond or to change what the court did. Because we could amend the Constitution to clarify the ex post facto clause.
Nia Rodgers: If we start down that road?
J. Aughenbaugh: But we could put pressure on, for instance, Congress to not extend copyright bans or if we got a problem with sex offender registries, couldn't we put pressure on our legislatures to go ahead and try to find that sweet spot? Because right now, it's so tilted in the opposite direction. I'm just going to like, again, you're a sex offender, you should go to jail if you're found guilty. But this idea that now we just go ahead and continue to put you on a registry, again, I have a kid. I like to know where the sex offenders are.
Nia Rodgers: There is an argument to be made that that is an ongoing part. You never finish your punishment.
J. Aughenbaugh: Your punishment. Yes.
Nia Rodgers: But if we're going to do that, we might as well just keep you in jail.
J. Aughenbaugh: At that point, that seems to run counter to the prohibition on ex post facto laws. Again. I'm like you can't necessarily have it both ways. Modern society is forcing us to go ahead and retrofit some of these clauses. I don't think we spend the time or have the conversation. That's the thing that probably bothers me the most is, Nia, you and I and a couple of other four have talked about the fact that in many ways, we still have not come to grips with changes that occurred post 911 attacks. We just didn't have conversations about, are we cool with the government doing X when we have a prohibition on unreasonable searches in the Fourth Amendment. Is it cool to go ahead and target an entire, if you will, religious group or ethnicity when we have the Equal Protection Clause of the 14th Amendment?
Nia Rodgers: The clause has become, in some instances, political footballs. But in this instance, it seems like the courts are like, no, it doesn't involve prison or death.
J. Aughenbaugh: Yes, life or liberty.
Nia Rodgers: It's fine, go ahead.
J. Aughenbaugh: Fine. Again, I've read those two sections of the Constitution at length. I don't see that's fine exception. There's not a footnote that says, but in these categories, that's fine. Really?
Nia Rodgers: Side note when we will discuss this at some point, I think, because when we're doing phrases, life liberty and the pursuit of happiness got changed from life liberty and property.
J. Aughenbaugh: Flip it around. Life Liberty and happiness was in Declaration of Independence, life liberty and property find its way into the Constitution entitlement.
Nia Rodgers: Sorry.
J. Aughenbaugh: John Locke was not concerned about happiness.
Nia Rodgers: Happiness is not what's important to founders. What's important is property.
J. Aughenbaugh: It's property.
Nia Rodgers: Because property is what gave you your place in society.
J. Aughenbaugh: That's right.
Nia Rodgers: Without that, you have, I guess, society running amok. I don't know. I guess we'll find out when no one can afford property anymore.
J. Aughenbaugh: Some people say, I'm the cynic in this podcast. Good Lord, you just emptied up about five clicks. When we can no longer afford property, said bitterly.
Nia Rodgers: Said bitterly for all the Z's who are never going to be able to afford property. Anyway, thank you, Aughie. I appreciate us talking about this because it's always interesting to me to dig in on what seems like a little thing, and it turns out to be much bigger than you think.
J. Aughenbaugh: I know I am prone to complicating things, but in this particular instance, I ain't the one cop didn't do it.
Nia Rodgers: You didn't do it.
J. Aughenbaugh: I'm just merely reporting.
Nia Rodgers: You're reporting, that's right. I'm the reporter involved, not the action.
J. Aughenbaugh: You don't see the messenger folks.
Nia Rodgers: Exactly.
J. Aughenbaugh: Thanks, Nia.
Nia Rodgers: Thanks, Aughie.
Announcer: You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the workshop for technical assistance, music by Isaac Hobson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harm to the making of this podcast.
Nia Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
Nia Rodgers: I'm really good. Thank you for asking. How are you?
J. Aughenbaugh: I'm good. We are recording this podcast episode near the beginning of the official start of, I really don't spend all that much time making distinctions between seasons. I'm the person who just steps outside and says, oh, it's cold, so I need a jacket.
Nia Rodgers: I do that. My mom used to say, "Could you look to see if it's going to rain and maybe you want to take an umbrella?" I'm like, I got one in the car. You're not worried about it.
J. Aughenbaugh: I'm just like, one, I'm not going to melt.
Nia Rodgers: Oblivious.
J. Aughenbaugh: Two, so it's hot. I'm going to sweat. Big deal.
Nia Rodgers: Exactly.
J. Aughenbaugh: I got to admit. If I do have a favorite season, it's the start of fall, in part because I did grow up in a part of the United States, the northern part, where the changing of the leaves. Yes, I had to rake up a whole bunch of leaves, blah. But to me, I just like the colors.
Nia Rodgers: Leaf peeping.
J. Aughenbaugh: Peeping.Yes.
Nia Rodgers: I didn't know it was the thing until I found out a few years ago.
J. Aughenbaugh: But that's one of the great things about doing the spelling bee for the New York Times. If there's a PI or PEE, and then they have ING, they're always going to have peeping as a word.
Nia Rodgers: For listeners who do that and didn't know. I like it. I love the changing of the seasons, too. We used to drive up as a kid, drive up to the Blue Ridge Parkway.
J. Aughenbaugh: Parkway. Yes.
Nia Rodgers: You can drive down there, and it's beautiful. The colors are changing. It's gorgeous.
J. Aughenbaugh: The other reason why I'm excited, Nia, is we're going to be doing an episode about a clause of the US Constitution.
Nia Rodgers: I'm such a child.
J. Aughenbaugh: It's one of my favorite phrases, just simply because I love the way it rolls off my tongue. The episode is about the Constitution's prohibition on ex post facto laws. I just like saying ex post facto.
Nia Rodgers: It's fun when Latin is pronounceable.
J. Aughenbaugh: Yes.
Nia Rodgers: You get into some Latin words, and you're like, I don't know what that is. I don't like it. I don't like. Like, I have, what is it? The writ of certiorari? Hard for me to say. Like, that does not roll off the tongue. You know what I mean? You have to kind of stop and work your way through the word a little bit. As opposed to ex post facto, which just sounds like. It's got a nice ring to it, and we like it because it's a good thing. Sometimes, right, let us be clear that some clauses in the Constitution are not particularly clear. I have a right to bear arms. Does that mean my arms don't have to wear clothing, or does that mean that I have a right to bear arms? Like, I have the right to own bear arms, as in from a bear, or I get it. I know what they meant, but it's missing a comma. But anyway, it's I say bitterly. But there's some things that are left vague, and we've had that discussion many times over the years of they did that intentionally to give some room for growth and that thing. But this thing is straight up forward.
Nia Rodgers: Like, this is clear what they're trying to get at here, which is you don't get to say that something is illegal after someone did it. Which is a very toddler way of approaching the world if you get to just say, well, that's illegal because I just said so. Because if you can change the rules at any time, I'm not going to play your game. That would peeve me so much if Aughie and I were in the middle of Monopoly and he's like, I have decided no hotels. Wait. What? You can't just decide that. I just put two hotels on these different properties. I've decided we're not doing that.
J. Aughenbaugh: Or you have to pay a surcharge to put a hotel on a piece of property. Whoa, that's not in the rules, but I'm winning, so I get to decide.
Nia Rodgers: It's in the rules now because I said so. Which is a parental nightmare.
J. Aughenbaugh: For listeners.
Nia Rodgers: Where do we find ex post facto?
J. Aughenbaugh: Very good. Article 1, Sections nine and 10 of the United States Constitution. One covers the federal government. The other one actually covers state governments
Nia Rodgers: Which was unusual for the Constitution.
J. Aughenbaugh: Yeah.
Nia Rodgers: We try to do a whole lot of what to do.
J. Aughenbaugh: Particularly before the Bill of Rights. But so shorthand definition, listeners, this is the clause that forbids the federal and state governments from passing retroactive criminal laws. The example I always like to give, Nia, in my classes is today, thankfully, in the Commonwealth of Virginia, it's not a crime for an adult to drink 40 ounces of coffee in a day.
Nia Rodgers: Although for you, we'd make it a law. See, that's what this is preventing.
J. Aughenbaugh: But if tomorrow the Commonwealth of Virginia passed a law saying that everybody in the last five years who drank 40 ounces of coffee or more in a day is a criminal, okay? According to this.
Nia Rodgers: Aughie, he's going to prison.
J. Aughenbaugh: I'm going to prison for a long period of time
Nia Rodgers: Many egregious examples.
J. Aughenbaugh: Will only be seeing her daddy once a week during visitation. The poor child, she'll be like, yeah, so what do you think about the nectar of the gods now they're dad. That's what this clause was designed to address. This actually goes back to the purpose of law, Nia. The purpose of law is to create behavioral norms. If what you did on a given day was not illegal, but then they go ahead and pass a law and say, what you did yesterday was illegal, wait a minute, here, how was I to know that this was illegal? If one of the purposes of law is to create behavioral norms that all members of a society can aspire to comply with, well, then ex post facto laws detract from that purpose of law. That's why you have the prohibition. Likewise, no increase. You're talking about no retroactive crimes. You're also talking about no increased penalties. Let's just say, Nia, you are criminally minded, and you're trying to decide.
Nia Rodgers: Hey, let's not say that. I am criminally minded. Let's be honest.
J. Aughenbaugh: I'm trying to be generous here with my hypothetical.
Nia Rodgers: I will go 5 miles over the speed limit if it is possible to do so, if traffic is moving appropriately, and I'm not going to endanger myself or others, even though I know good and dang well what the speed limit on a road is.
J. Aughenbaugh: Well, and part of your calculation with the example you just gave is if I go 8 miles over the speed limit, I know I might get pulled over and be given a citation by a police officer. Because I know what the punishment more than likely will be, I'm willing to accept that in my cost-benefit analysis I'm doing in my head. Again, you are calculating your behavior based on what you know will more than likely be the punishment if you do get caught.
Nia Rodgers: That's true. If, after I got caught, they said, and we're putting people to death for going 5 miles over the speed limit. I would say, whoa. If I had known that, I would have gone the speed limit. No, I see what you're saying with that. If I know that the ticket is going to be $50. I'm making a reasoned decision about what I'm going to do here. If I get to the court and they say, oh, no. What we've decided is that the fine is $10,000.
J. Aughenbaugh: Dollars, you're like, I may not have engaged in that criminal behavior if I knew that. Likewise, the prohibition on ex post facto laws also applies to evidence rules. Again, people who are criminally minded may make a decision on whether or not they're going to engage in a criminal act, if they think they can get away with it because certain evidence can't be presented in court. But if they change the evidence rules now all of a sudden, the evidence you thought could never be presented in court now can be- oops- again, this is part, and I know some of our listeners are just like, when the heck did this turn into how to become a criminal by Nia and Aughie? Well, again.
Nia Rodgers: Not what we're saying.
J. Aughenbaugh: Say, one of the purposes of law is to create behavioral norms.
Nia Rodgers: Set clear societal boundaries. Aughie, now, this doesn't happen what we're talking about these egregious examples, but it could happen in something like, what if a state decides that you can compel a spouse to testify against a spouse, which currently, in most states, you cannot do that cannot compel within the marital relationship testimony. But what if they changed that after someone committed a crime? We're going to compel you to rat out your spouse. Going forward, that's going to change people's behavior about marriage. If you have no protections within the marital bond, then why have the marital bond
J. Aughenbaugh: Likewise, many of the state laws that protect privileged information are based on what you just described, Nia, so whether it's doctor-patient, priest-minister and penitent. A counselor and their patient. They are all designed to because the assumption is more communication is better. We want spouses to communicate with one another. But.
Nia Rodgers: As the theory. I think you and I both know that doesn't always work in practice, but that is the theory.
J. Aughenbaugh: That is the theory. But if all of a sudden they change that after years of you talking to your spouse.
Nia Rodgers: Or your counselor.
J. Aughenbaugh: Or your minister or whatever. Now all of a sudden, you're like, Hey, whoa. I wouldn't have shared all that information if I knew it could be used against me in a court of law.
Nia Rodgers: I would not have confessed to my priest that I drink 40 ounces of coffee every day if I had known that he was going to be compelled to tell the court that this now illegal action had been going on for years.
J. Aughenbaugh: Series. Yes.
Nia Rodgers: The other thing too here is, I think that some people forget that almost everything in the Constitution comes out of some crap that the Royals did to the colonies. Almost everything in there can be traced back to something that the Crown did. That we fought a war to get away from. This reads that way to me in the sense that the Crown's word would be arbitrary and capricious. Like, I have decided as the Crown that I don't like this behavior. Now I'm going to make it illegal, and I'm going to punish people who did it before.
J. Aughenbaugh: Yes.
Nia Rodgers: We see that with being Catholic. When Henry comes in, and he's like, I want to get married a bunch of times, and the Pope's like, not so much. And he goes, oh, well, then I'm out of here. Peace out. I'm going to start my own religion. By the way, it was more complicated than that. I'm being very light hearted. But anyway, then you proceed to punish people retroactively for being Catholic when they were Catholic, because everybody was Catholic, and that's what you were supposed to be according to the royals. It's not that other religions didn't exist. I'm saying that for a long time, Catholicism was the way to be, and then all of a sudden, one day, it wasn't anymore.
J. Aughenbaugh: The King's like, I want to get divorced.
Nia Rodgers: I want to get divorced and remarried, and I'm thinking she's a hottie, and I don't care about the church.
J. Aughenbaugh: By the way, all of you who support that church, you're now criminals. I'm going to use as evidence the fact that for all your life, you've been attending Mass. What? What?
Nia Rodgers: I'm going to take all the money out of the Abbeys for that reason they're. Wait.
Nia Rodgers: That's the thing where they're like we're not letting this happen to us. We're going to put it in the Constitution that the president can't do that. He can't be arbitrary in that way and the criminal justice system can't be arbitrary in that way, that it's not fair. To be held against you when you didn't know the thing was going to eventually someday be illegal?
J. Aughenbaugh: Yes, now, there is.
Nia Rodgers: The bargain on the other side, by the way, does not work. If you are doing illegal thing under the hope that at some point it will become legal, read smoking marijuana. That doesn't work in the other direction. If you're breaking the law, you're breaking the law. In your argument in front of the court of it shouldn't be the law will be absolutely met with laughter. Like it will just not be.
J. Aughenbaugh: You got arrested for a crime, a well established criminal statute. Then a state government like five years later, says, on second ought.
Nia Rodgers: It should be to make that illegal.
J. Aughenbaugh: Legal, you can't then go ahead and appeal and say, now that they've gotten rid of it, I should be let go.
Nia Rodgers: That was going to be my question to you, one of the things that we have now is because the laws are relaxed about marijuana in most states. Should the people who are in prison for having had marijuana before be allowed out?
J. Aughenbaugh: Could a jurisdiction reduce their senses with a future law or say their senses should be commuted? Well the government can do that. What you can't do is going to commit a crime.
Nia Rodgers: You said, "They didn't commit a crime."
J. Aughenbaugh: This is no longer a crime, so you should let me go. No, when you engaged in the behavior you knew that that was illegal. Again, that's one of those instances where you can't go and say, judge, I didn't know it was illegal. Again ignorance of the law is not a defense.
Nia Rodgers: We've always had that to be the case, which is in some ways unfortunate. Because if you don't know something is illegal, because in one jurisdiction, it is and in another jurisdiction, it isn't that can be a complex.
J. Aughenbaugh: In listeners, we'll probably do a future episode where we talk about how there are too many laws probably in the United States.
Nia Rodgers: That's not OGs are criminals, that's not we're like, do there's too many laws. We should be able to rob and steal and drive really fast and do all the things we want to do. No, we don't things. You're right it's pretty complex system of from county to county, city to city, state to state.
J. Aughenbaugh: Then compare state government to the federal government. On any given day, according to some scholars, most Americans are breaking the law and they don't know that they are.
Nia Rodgers: Something that they're doing is illegal somewhere in the where they are and peace be upon you if you move.
J. Aughenbaugh: Good Lord. Yes.
Nia Rodgers: Try to figure out what's illegal in one place and not illegal in another. It wasn't illegal in North Carolina well, it is here.
J. Aughenbaugh: When you move, then you got to go ahead and register your car, register to vote, and you're just like, oh, so I did it this way back in Virginia, but now I'm in Montana.
Nia Rodgers: Virginia allow you a three year tag, and Montana, they're like, we don't let you do that, that's crazy.
J. Aughenbaugh: We'll probably do an episode in part because the cost of having so many laws, I don't think a lot of people understand that every time we put pressure on the government to pass a new law, that's a new law on top of all the already existing laws. Legislatures are not really good at going because we've done a previous podcast episode about silly laws. How many of them which was a very entertaining episode.
Nia Rodgers: It was fun, but it's also sad.
J. Aughenbaugh: Because some of these laws that are still on the books, were created like in the early 1800s.
Nia Rodgers: They don't really apply in the modern world or they could apply dangerously in the modern world if you had an overzealous. What do the Supreme say about ex post facto?
J. Aughenbaugh: This is interesting. The Supreme Court has said the prohibition on ex post facto laws applies in the criminal law sector, but not in civil court.
Nia Rodgers: Is that because you lose your freedom in criminal court? Was in civil court, you just lose your monies. Like, they don't put you in prison in civil court ever.
J. Aughenbaugh: No, you just get fined.
Nia Rodgers: You can get the snot find out of you. It could be million dollar judgments which can feel like prison. But you are not being deprived of your liberty.
J. Aughenbaugh: You life or your liberty, and this all flows from a case that was decided in what year was that? Calder versus BL. I'll have to go ahead and look that up.
Nia Rodgers: About 1938?
J. Aughenbaugh: It was before 1938? Calder versus. It was in the early 1800s.
Nia Rodgers: Oh, 1798.
J. Aughenbaugh: Oh, 1798, there you go.
Nia Rodgers: For anybody who needs a citation three US 386.
J. Aughenbaugh: That's very good.
Nia Rodgers: 1798.
J. Aughenbaugh: The Supreme Court held that the prohibition only applied to criminal matters, not civil matters and went ahead and actually listed four categories of unconstitutional ex post facto laws. The case actually arose in the fine state of Connecticut.
Nia Rodgers: Connecticut.
J. Aughenbaugh: Yes, when people immigrate to the United States, they're like, what happened to the first T in Connecticut?
Nia Rodgers: We're like Connecti cut which is how I say it so I can remember spell it correctly. Is that the case where where they start to lay the groundwork of judicial review. Like, they can say something is unconstitutional.
J. Aughenbaugh: Yes and they didn't officially say we have the power of judicial review until Marbury versus Madison.
Nia Rodgers: But they're laying the groundwork here by going. I'm not about the constitutionality of this thing.
J. Aughenbaugh: It was John Marshall who was just like, we need to go ahead and lift up the veil, we need to be transparent and oh by the way, Thomas Jefferson, I know you're not going to like it, but I'm going to go ahead and stick it to you anyways.
Nia Rodgers: Exo John Marshall.
J. Aughenbaugh: John Marshall.
Nia Rodgers: I would love it if we ever found a letter like that.
J. Aughenbaugh: I would love a majority opinion that goes ahead and concludes with hugs and kisses the majority.
Nia Rodgers: That's right exo lezo us and then just leave it like that. We don't have it in civil law, we only have it in criminal law.
J. Aughenbaugh: Criminal law, yes.
Nia Rodgers: We're laying the groundwork for the Supremes being able to say what's constitutional and what's not constitutional. How does it come to be applied?
J. Aughenbaugh: Moving forward, there are going to be a couple areas, listeners that we think that you ought to pay attention to. One, in regards to the IRS imposing penalties on previous behavior.
Nia Rodgers: That's right. They can if you don't pay your taxes, they can come back later and say, I'm looking that money.
J. Aughenbaugh: We're going to punish you.
Nia Rodgers: I had forgotten that because I don't do that, but people do.
J. Aughenbaugh: Yes.
Nia Rodgers: That's legal, that's one of the areas where they can do it.
J. Aughenbaugh: In 1938, the Supreme Court held that the standard on retroactive taxation, is a problem. But they also recognized, that the tax code so frequently changes, that what you might thought was a perfectly legal tax deduction has now been declared an illegal tax deduction. This is the reason why the Supreme or the IRS frequently tells you, you need to consult the IRS for the updated, if you will guidebook on what is or is not an appropriate deduction on your taxes.
Nia Rodgers: But they still can't retroactively make you pay that. Because it wasn't when you filed your taxes, that thing was not taxable.
J. Aughenbaugh: But this is where you end up having to go to the Federal Tax Court. Because frequently, you have to prove it.
Nia Rodgers: That year this thing was not taxed.
J. Aughenbaugh: This was an allowance.
Nia Rodgers: I didn't list it. I will list it going forward because it is now, I wonder how exciting tax court is. Probably on most days, it's like watching paint dry.
J. Aughenbaugh: Paint dry.
Nia Rodgers: Technical.
J. Aughenbaugh: There's a particular assumption here. Congress allows you to appeal a decision by the IRS to the federal tax court, but most Americans don't want to go through the BS of appealing, particularly if the penalty and the fine is just like, cost benefit analysis.
Nia Rodgers: If the percentage that I'm supposed to give the government is $61.48. The lawyer is going to cost me $250 an hour because I've got the cheapest lawyer there, I'm still losing money. Then it's either a principal thing.
J. Aughenbaugh: I screwed up.
Nia Rodgers: I'm just paying.
J. Aughenbaugh: I don't think I screwed up, but I'm not going to want to deal with the IRS any longer than I have to.
Nia Rodgers: I imagine that the IRS wins a lot of its cases by attrition. What I mean is you just like, I don't have it in me to keep fighting with you, so I'm just going to pay this and leave me alone.
J. Aughenbaugh: It's like dealing with so many bureaucracies. After a while, you just do a quick cost-benefit analysis in your head. Do I really want to go ahead and prove that point? Or do I just want to move on with the rest of my freaking life?
Nia Rodgers: I imagine the people who end up in tax court aren't people, they're corporations. They're people with endless wells of money and lawyers. Banks and lawyers they can so anyway.
J. Aughenbaugh: The other controversial issue or type of case is one concerning laws that impose registration requirements on convicted sex offenders. This arose in the late 1990s, the early part of this millennium, when various states and the federal government passed laws that required convicted sex offenders when they were released from prison to register with the authorities so that states in the federal government can create a list of sex offenders.
Nia Rodgers: That was not just going forward, that was people who had committed the crime before that law was passed, they also had to register. They went back to people who had been released from prison 10 years before, who had committed an offense of this nature and said, you're going to have to be on the registry. The courts found that acceptable.
J. Aughenbaugh: That is correct.
Nia Rodgers: Is that a public safety thing? Is that because they felt like public safety outweighed.
J. Aughenbaugh: The case is Smith versus Doe from 2003. What the Supreme Court said was, these laws are not imposing additional punishment. This is merely a registration requirement. Yes.
Nia Rodgers: I feel like there's an argument to be made that it is a punishment.
J. Aughenbaugh: Yes.
Nia Rodgers: If nothing else, it's a cultural and social punishment. But not that I am pro sex offender because I am not. I'm glad that we have a registry, because I think it allows parents to be aware of who's in their neighborhood and who may be especially if there were children involved in the original offense, I don't think people should lose all of their rights, but I do understand why there should be protections.
Nia Rodgers: If you think that the behavior may be ongoing or could be ongoing ongoing.
J. Aughenbaugh: Yes. If there's the likelihood that that behavior will repeat in the future, can not society take steps to go ahead and protect the most vulnerable members of its society from those criminals? This prohibition in the Constitution has risen in regards to SVP laws, sexually violent predator laws, which allow for the indefinite commitment of a person with a mental abnormality which predisposes them to molest children, Here, the Supreme Court reversed the decision of a Kansas Supreme Court and ruled that the law was constitutional on the basis that the law did not impose, again, a criminal punishment. Go ahead, Nia.
Nia Rodgers: That case, though, the Kansas v. Hendrix, has an interesting feature to it. Mr. Hendrick had a long history of sexually molesting children, and he was scheduled to be released from prison. This law comes through, and then he gets committed on the grounds that he has a mental abnormality.
J. Aughenbaugh: Yes.
Nia Rodgers: He says, no, you cannot try me. First of all, double jeopardy, right? You can't try me for the same crime again. You've already punished me for that crime. Also, you can't just make stuff up to keep me in prison. The Supremes upheld that he could be then institutionalized because institutionalization was not a criminal punishment, meaning, he didn't go to prison. He went to a hospital where he was, I assume, involuntarily committed. It sounds to me like he does not want to be voluntarily committed. I have complex feelings about that, Aughie. I'm just going to tell you. There's a part of me that's like, this guy's got a long history of hurting children, and he should not be out where he can hurt more children, but then there's another part of me that's like, how many times do you pay for your crime, and in what ways?
J. Aughenbaugh: This is complicated for me. Again, locking people up because they may harm children, I think, is one of the fundamental things that a government should do. We should be protecting our most vulnerable people in our society. On the other hand, changing the rules, I go back to something you said, Nia, at the beginning of the podcast. Changing the rules while the game is being played strikes me as arbitrary and capricious. This is not what you do in a society with a rule of law. Going forward, fine.
Nia Rodgers: If you are convicted of this crime, you will serve time in prison, and then you will go to an institution.
J. Aughenbaugh: Applying it to somebody who was arrested and convicted and punished under a previous law, which did not allow for the state to put you into a mental health facility after you served your sentence in prison, strikes me as ex post facto, and I disagree with the Supreme Court's ruling in that regard.
Nia Rodgers: I do, too. It's not because Aughie and I are pro-molesters. No. I think that I speak for Aughie and myself when I say, let us sit in a room alone with this guy, and let's see if he ever has the desire to do anything at all anymore. Both of us are very highly protective in this particular instance. I don't think it's fair in this instance. If somebody has a history of physically harming children, we could solve that with a shock collar. I go in the other direction, which is not okay either because that is cruel and unusual. It's finding the sweet spot where you are preventing someone from acting in a way that is super violent or super harmful but not harming them. The other thing maybe is a collar that yells all the time, "I'm a child predator, I'm a child predator," so whenever you get around anybody, they're like, now I know who you are.
J. Aughenbaugh: Nia, our friends in the criminal justice realm, scholars and other people who we work with, will go ahead and say, at that point, we've given up hope that we can rehabilitate these individuals. I'm like, fine, fair point, but are we willing to concede that there are some individuals who cannot be rehabilitated?
Nia Rodgers: I'm not sure that we could have gotten Jeffrey Dahmer to stop eating people if we hadn't put him in prison. Yeah. Okay.
Nia Rodgers: Ted Bundy proved over and over and over again that prison did not prevent him from killing people because he'd break out of prison and go kill people. That's a compulsion [inaudible] .
J. Aughenbaugh: They have a psychosis that no amount of rehabilitation is going to be able to fix.
Nia Rodgers: In many instances with predators, they are often trying to reach the point where they manage their desires so that they don't actually act on the desire. I could conceivably want to poison all of my colleagues, which I do not, but until I do it, it's a fantasy. Do you punish people for their fantasies? It's very complicated. Can I ask a question about something completely not related to sexual predators?
J. Aughenbaugh: Go ahead. I hope that we can move on, to be quite honest.
Nia Rodgers: My experience of copyright tells me that Disney would apply the ever living crap out of things retroactively if it kept Mickey Mouse out of the hands of fake Mickey Mouse things. Does it apply in those instances?
J. Aughenbaugh: No, it does not. We covered this previously in an episode with our colleague.
Nia Rodgers: Catherine?
J. Aughenbaugh: Yeah, Catherine. The Copyright Term Extension Act, which we discussed at length in that podcast episode, it was technically retroactive because it affected both new works and existing ones, but the Supreme Court in Eldred v. Ashcroft went ahead and said that it did not violate the ex post facto clause because it was regulatory in nature, not criminal. The due process clause, Nia, has life,
liberty, and property. The court's application of the ex post facto prohibition seems to only concern life and liberty most of the time, certainly not property.
Nia Rodgers: Less worried about property.
J. Aughenbaugh: I'm pretty sure the framers thought property was the most important of those three. This always struck me as odd. On one hand, this is a very clear clause. We know why it originated, what the British crown was doing that so upset the framers. Woodrow Wilson once said, it's far easier to write a constitution than it is to run one, and this is an excellent example.
Nia Rodgers: That's true of revolutions. It's super easy to have a revolution. It's almost impossible to make a government afterwards that will stand. That's why you have many failed revolutions and only a few that succeeded because it's really easy to get everybody pissed and get them out on the street fight and pushing and doing whatever, but then the next day, you're like, now what do we do?
J. Aughenbaugh: What's next?
Nia Rodgers: It's the dog that chases the car, and it catches it, and they're like, now what do I do?
J. Aughenbaugh: What do I do with this car?
Nia Rodgers: I don't have any place to store this car. My dog house is a third of the size of this car.
J. Aughenbaugh: I can't chew on it like a can of bone.
Nia Rodgers: Great. What do I do now?
J. Aughenbaugh: The other context I want to explore before we finish this episode, Nia, actually flows from the Second Amendment. Many states have passed domestic violence offender gun bans. You can't legally own a firearm if you have been convicted of a misdemeanor or especially felony domestic violence offenses. If you are found guilty, if you are found to have a firearm afterwards, these laws can put you into state prison or federal prison for up to 10 years whether or not you use the weapon in the commission of a crime, and again, the way the federal courts have ruled on this, Nia, is that this is regulatory and not punitive.
Nia Rodgers: I struggle with this one, too.
J. Aughenbaugh: So do I.
Nia Rodgers: Aughie and I met in 2015, 2016, somewhere along in there. It's been about 10 years. If Aughie bought the gun in 2005 and was doing gun practice and blah, blah, blah.
J. Aughenbaugh: I get arrested and convicted for a domestic violence charge of some kind, according to this ban, I now can be prosecuted.
Nia Rodgers: For the gun you bought in 2005 long before you ever met me before we had this tussle and I get you convicted of, I don't know.
J. Aughenbaugh: Even if I never used the gun in the domestic violence incident.
Nia Rodgers: You're just yelling or whatever, threatening because misdemeanor is a threat.
J. Aughenbaugh: Folks, listeners, let's be very clear. Nia and I are not pro-domestic violence perpetrators. No, no, no.
Nia Rodgers: No, no, no. We're Gen X. You take them behind the stadium, you take them behind the bleachers, and one of you comes out, and it's not them.
J. Aughenbaugh: It's not them. Again, we're not advocating violence, so listeners, please do not flood our email inboxes.
Nia Rodgers: I didn't say they were. I just said they got a lesson. We had a potentially slightly physical discussion.
J. Aughenbaugh: The distinction that the federal courts have drawn between something being a regulation versus something being punitive, I'm just like, but you are being punished for an action that was not criminal when you went and got the gun before you committed the offense.
Nia Rodgers: The domestic violence offense.
J. Aughenbaugh: [inaudible]
Nia Rodgers: You commit the domestic violence offense. They put you in jail. You deserve it. We're good with that. You get out of jail, and I guess you go home, and you sell your grandfather's rifle that was left to you in his will because you're not allowed to have it anymore.
J. Aughenbaugh: Yes.
Nia Rodgers: How many people though know that about their obligation. I get where you would say, and you may not buy a new gun.
J. Aughenbaugh: Yes.
Nia Rodgers: You may not purchase a gun from here on out, you cannot add to your arsenal. I totally would be down with that, I would be down with, well, you've lost the privilege of purchasing weapons.
J. Aughenbaugh: Or in some states, the only necessary condition is that a restraining order has been sworn out against you?
Nia Rodgers: That's a terrible idea because we have crazy people who will get restraining orders when someone did not actually threaten them with true harm.
J. Aughenbaugh: I know some divorce attorneys who on the regular, tell their clients, well, if you really want to go ahead and stick it to your soon to be ex, swear out a restraining order against them. Again, the assumption is we want to stop ongoing violence or likely future violence. Again, that's a good thing.
Nia Rodgers: Yes. We want restraining orders, we want them to actually work.
J. Aughenbaugh: Work.
Nia Rodgers: Which many times the person walks right through a restraining order.
J. Aughenbaugh: But now you're tying some other civil liberty that it's not been proven in a court.
Nia Rodgers: That the person, did it.
J. Aughenbaugh: Did it. I'm just like, again, that strikes me as arbitrary and capricious when the assumption is of course, you use the gun. Wait a minute here, the restraining order is because allegedly I threatened them. Whatever the case will be.
Nia Rodgers: Who did some other behavior that didn't involve a weapon.
J. Aughenbaugh: But when did I have the opportunity to go ahead and show that one, I didn't do it, and then two, I didn't use the gun even if I did do it.
Nia Rodgers: If you did use the gun, then we should be able to take away your gun.
J. Aughenbaugh: Sure.
Nia Rodgers: That's clear. If you threaten somebody with a gun, we should be able to say, oh, you don't get to hold that anymore, give me that. These get rather complicated, I think. It seems like a simple phrase, it seems like a simple thing. You can't make a law that affects laws, that criminalizes behavior before this.
J. Aughenbaugh: After the fact.
Nia Rodgers: Totally, and then you start digging down into it and you're like, oh, this is a can of worms. Thanks founders, yet another can of worms.
J. Aughenbaugh: Scholars don't even agree that the Supreme Court got it right with the Calder versus Boll decision. Nia, I came across easily five different law journal articles where the scholar was just like, I don't think there's quality reliable historical evidence to suggest that the framers meant to exclude civil court proceedings. Because as we acknowledged in this podcast episode, sure, in a civil court, they don't throw your butt in jail if you were found responsible for harming somebody. But the jury or the judge can go ahead and give you award the plaintiffs compensatory and punitive damages that you may be paying the rest of your life. You didn't know when you engaged in the disagreement or whatever the case may be, that is at the heart of a civil case. You may not have known that what you were doing would lead to you being paying thousands if not millions of dollars the rest of your life. How's that not in violation of ex post facto.
Nia Rodgers: Can I say that my whole pet peeve about ex post facto is, I have several, as you've heard, several peeves, but this is my biggest pet peeve, which is that somehow we have allowed there to be a congressional loophole that if Congress makes a new law and they want to make it retroactive, they can write that into the statute. I'm like Congress is the definition of arbitrary and capricious. I agree and I
appreciate that the courts in some instances are pushing back and saying, Congress easy there. You need to slow down a little bit.
J. Aughenbaugh: The example that we gave in regards to copyright laws, and again, our colleague, Catherine, it just drives her bonkers.
Nia Rodgers: Yes.
J. Aughenbaugh: We understand we have copyright laws to give an incentive to artists, to creators.
Nia Rodgers: Your work will be protected for a certain amount of time. Create that art. Especially considering that you're almost never going to make the money that it took you to make the art. That's how we entice you to engage in this financially losing behavior.
J. Aughenbaugh: Yes, we're not against that capitalist.
Nia Rodgers: That's a good way to do it.
J. Aughenbaugh: The point that Catherine made on our podcast episode, at some point in time, the rest of society should have the opportunity to enjoy it. But then if Congress can go back and extend the copyright protection that a whole bunch of people who were already beginning to use that previously copyrighted material or were thinking about doing so can't. They are being punished, they are losing out on their own potential financial, if you will, opportunity because some well heeled folks see Disney, but other organizations. Let's be very clear, other companies, we're able to lobby Congress to go ahead and extend it even further. When they created that material in the first place, they had no expectation that after 75 years, we would still be able to go ahead and draw royalty checks for the movie or the music that we created. What? Again, you're changing the rules game, and again, that strikes us as problematic in a nation that's allegedly based on the rule of law.
Nia Rodgers: The thing about all the phrases in the Constitution is that there is it is a reaction to something the crown did.
J. Aughenbaugh: Frequently.
Nia Rodgers: At the time, it seems relatively clear.
J. Aughenbaugh: Yes.
Nia Rodgers: Because I don't think the founders deliberately wrote things to be difficult. I don't think they were like, no, they'll never fork out what do you mean by this? I don't think that was maybe some of them, but most of them did not do that. But then modern existence. I guess what I'm getting at is it's really good in some ways to have the court system because the Constitution remains a living breathing. Just the world is very different than it was when the founders created it. But in some ways, the court system just makes things more opaque.
J. Aughenbaugh: I often wonder, there seems to be disconnect because many people don't then go ahead and say, I disagree with what the court did. Is there a way for us to go ahead and put pressure on
our elected officials to respond or to change what the court did. Because we could amend the Constitution to clarify the ex post facto clause.
Nia Rodgers: If we start down that road?
J. Aughenbaugh: But we could put pressure on, for instance, Congress to not extend copyright bans or if we got a problem with sex offender registries, couldn't we put pressure on our legislatures to go ahead and try to find that sweet spot? Because right now, it's so tilted in the opposite direction. I'm just going to like, again, you're a sex offender, you should go to jail if you're found guilty. But this idea that now we just go ahead and continue to put you on a registry, again, I have a kid. I like to know where the sex offenders are.
Nia Rodgers: There is an argument to be made that that is an ongoing part. You never finish your punishment.
J. Aughenbaugh: Your punishment. Yes.
Nia Rodgers: But if we're going to do that, we might as well just keep you in jail.
J. Aughenbaugh: At that point, that seems to run counter to the prohibition on ex post facto laws. Again. I'm like you can't necessarily have it both ways. Modern society is forcing us to go ahead and retrofit some of these clauses. I don't think we spend the time or have the conversation. That's the thing that probably bothers me the most is, Nia, you and I and a couple of other four have talked about the fact that in many ways, we still have not come to grips with changes that occurred post 911 attacks. We just didn't have conversations about, are we cool with the government doing X when we have a prohibition on unreasonable searches in the Fourth Amendment. Is it cool to go ahead and target an entire, if you will, religious group or ethnicity when we have the Equal Protection Clause of the 14th Amendment?
Nia Rodgers: The clause has become, in some instances, political footballs. But in this instance, it seems like the courts are like, no, it doesn't involve prison or death.
J. Aughenbaugh: Yes, life or liberty.
Nia Rodgers: It's fine, go ahead.
J. Aughenbaugh: Fine. Again, I've read those two sections of the Constitution at length. I don't see that's fine exception. There's not a footnote that says, but in these categories, that's fine. Really?
Nia Rodgers: Side note when we will discuss this at some point, I think, because when we're doing phrases, life liberty and the pursuit of happiness got changed from life liberty and property.
J. Aughenbaugh: Flip it around. Life Liberty and happiness was in Declaration of Independence, life liberty and property find its way into the Constitution entitlement.
Nia Rodgers: Sorry.
J. Aughenbaugh: John Locke was not concerned about happiness.
Nia Rodgers: Happiness is not what's important to founders. What's important is property.
J. Aughenbaugh: It's property.
Nia Rodgers: Because property is what gave you your place in society.
J. Aughenbaugh: That's right.
Nia Rodgers: Without that, you have, I guess, society running amok. I don't know. I guess we'll find out when no one can afford property anymore.
J. Aughenbaugh: Some people say, I'm the cynic in this podcast. Good Lord, you just emptied up about five clicks. When we can no longer afford property, said bitterly.
Nia Rodgers: Said bitterly for all the Z's who are never going to be able to afford property. Anyway, thank you, Aughie. I appreciate us talking about this because it's always interesting to me to dig in on what seems like a little thing, and it turns out to be much bigger than you think.
J. Aughenbaugh: I know I am prone to complicating things, but in this particular instance, I ain't the one cop didn't do it.
Nia Rodgers: You didn't do it.
J. Aughenbaugh: I'm just merely reporting.
Nia Rodgers: You're reporting, that's right. I'm the reporter involved, not the action.
J. Aughenbaugh: You don't see the messenger folks.
Nia Rodgers: Exactly.
J. Aughenbaugh: Thanks, Nia.
Nia Rodgers: Thanks, Aughie.
Announcer: You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the workshop for technical assistance, music by Isaac Hobson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harm to the making of this podcast.
