Retroactivity in Law Can Certain Repeal Legislation Violate the Ex Post Facto Clause?

Frank Yang is a sophomore in the college majoring Government and Linguistics with a minor in Portuguese.

There are few clauses in the U.S. Constitution that are simpler in writing than Article I, Section 9, Clause 3, which states: “No…ex post facto Law shall be passed.”[1] The provision is as comprehensive as possible, assigning an absolute prohibition on the passage of any ex post facto law. Intended to apply to both Congress and the states, Article I, Section 10, Clause 1 makes clear that “No state…shall pass any…ex post facto law.” Yet despite such ostensible simplicity, any observer or student of the law will know that there is no sentence in the black letter that does not produce complications.

From Latin, ex post facto literally translates to “from a thing done afterward.”[2] The definition furnished by Giles Jacob’s Law Dictionary of 1739, which was the standard volume of reference for its time, is equally straightforward and says: “a term used in the Law, signifying some Thing done after another Thing that was comitted [sic] before…”.[3] The principle of retroactivity in the law, and specifically retroactive punishment, is thus rendered crystal clear. The only remaining ambiguity, then, is whether ex post facto refers to criminal or civil statutes, or both.

During the drafting of the Constitution, significant debate was had over the precise boundaries of that legal principle. Specifically, the controversy surrounded the reconciliation of the debts of the states and that of a unitary federal government post-Constitution.[4] The conversation surrounding the unabridged ex post facto clause principally pitted George Mason and Patrick Henry against James Madison and Edmund Randolph, among others. Civil statutes concerning the settlement of old monies were to be forbidden under this new Constitution, therefore spelling potential financial ruin for many of the states in the union, Mason argued. Madison and Randolph’s defense hinged largely on technicality; they cited that the consequences highlighted by Mason and Henry would be staved off by provisions against bills of attainder, which were instances of “capital punishments… without any conviction in the ordinary course of judicial proceedings,” and the common understanding of ex post facto in the common law of the states.[5] Though Mason’s worries were ultimately unassuaged, Madison’s underlying premise that ex post facto implicitly applied only to crimes tended to be correct, albeit amidst an extensive back-and-forth in state courts, state legislatures, and the Supreme Court.

The parameters of ex post facto would be established by the Supreme Court shortly after the ratification of the Constitution in Calder v. Bull, defining it as:

Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.  2d.  Every law that aggravates a crime, or makes it greater than it was, when committed.  3d.  Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.[6]

When we discuss legal retroaction, it also becomes practically necessary to bring up repeal legislation. Much like the ex post facto clause of the Constitution, the intent of express repeals is perfectly plain — “that the older law shall no longer be operative.”[7]

Of course, the frequency of repeal legislation is very low, hence why the prevalence of this question is unsurprisingly rare. Between 1890 and 2009, the average number of repeals per year hovered around two; the total peaked at six in the 76th Congress of 1939 to 1941.[8] Repeals are, by their nature, immemorable; they erase an existing law turned so unpopular that a future legislature felt it necessary to address it with urgency. Their effect is, in essence, to undo unforeseen consequences of legislative enforcement. Yet the process of legislative erasure, especially when combined with the prohibition on ex post facto laws, becomes rather murky.

The chief example of this complexity is State v. Ramseur, which reached the North Carolina Supreme Court and was decided in June 2020. The case revolves around the Racial Justice Act (“RJA”) passed by the state’s General Assembly in 2010 and its subsequent repeal in 2013. Of relevance was a provision of the RJA that “designed a new substantive claim that fundamentally changes what is necessary to prove racial discrimination and, in return, provides a limited grant of relief that is otherwise unavailable,” in hopes of reducing racial bias in death penalty sentencing,[9] Defendant Andrew Darrin Ramseur, who was convicted of murder and sentenced to death, sought this newly available relief. Under the RJA, he was entitled to a hearing to determine whether racism had significantly influenced his sentencing, but before the trial court ruled on his motion, the RJA was completely repealed. The trial court thus dismissed the defendant’s claim on the basis that it was now void, and so he proceeded to sue the state on grounds of ex post facto violation. The question then arises: Is it unconstitutional to revoke a novel potential for substantive relief when such a legal avenue was not open during the course of the original trial? 

In the majority opinion, Justice Anita Earls, who is currently on President Biden’s shortlist for the Supreme Court, extensively covers this intersection of repeal legislation and ex post facto, ultimately reversing the lower court decision.[10] Citing restrictions on arbitrary and potentially vindictive legislation and citizens’ fundamental interest in the fairness of their government, the Court held that the RJA Repeal could not apply retroactively to pending motions under the RJA.[11] The concrete nature of the disadvantage handed down by the repeal, namely capital punishment, was also of great relevance, as the severity of the sentencing attached to the crime was distinctively high.[12] 

The dissent’s response to the majority opinion rested primarily on the unique situation that repeal legislation reconfigures preexisting sentences, in that it leaves the “defendant in precisely the same legal situation” as he was in when he was convicted.[13] No additional punishment was levied upon him by the RJA Repeal; the only effect was that a possible avenue of relief was erased. Furthermore, the Court’s decision impinged on the people’s authority to delineate the circumstances of the imposition of the death penalty through the General Assembly.[14]

Though this summary of the arguments on each side cannot do full justice to the nuances of the case in its entirety, it nevertheless demonstrates the myriad of technicalities involved in combining seemingly straightforward legal acts and clauses. What State v. Ramseur reveals are the complex questions that arise when criminal proceedings and legislative history follow parallel but incongruous timelines. The backlog and delay that are unwanted but immutable parts of our legal system force trial judges to contend with the possibility that the laws they are applying now may not be in effect by the time they actually reach a case in which that law was once pertinent. Of course, it is exceedingly unlikely that such a possibility would collide with either ex post facto concerns or repeal legislation.But while the infrequency of their intersection rarely manifests itself into practical instances of litigation, it is worth examining, at least in hypotheticals, how such instances could be resolved in the future.


[1]U.S. Const. art. I, § 9, cl. 3.

[2]“Ex post facto.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/ex%20post%20facto.

[3] William W. Crosskey, True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U. Chi. L. Rev. 539, 545 (1947).

[4]Id. at 548.  

[5] Joseph Story, Commentaries on the Constitution of the United States, 3 Boston, 1338 (1833); Id. at 550.

[6] Calder v. Bull, 3 U.S. 3 Dall. 386 386 (1798).

[7] Carl Jr. Seeman. The Retroactive Effect of Repeal Legislation, 27 Ky. L. J. 75, 79 (1938).

[8] LegBranch Team, When Does Congress Repeal Legislation? A New Dataset of Major Repeals from 1877-2012 Provides Answers, LEGBRANCH (October 19, 2015), https://www.legbranch.org/2015-10-19-when-does-congress-repeal-legislation-a-new-dataset-of-major-repeals-from-1877-2012-provides-answers/

[9] State v. Ramseur, 862 S.E.2d 354, 28 (N.C. 2020).

[10] David Larson, Anita Earls Would Join Short List of NC justices if picked for US Supreme Court, THE NORTH STATE JOURNAL (February 2, 2022), https://nsjonline.com/article/2022/02/anita-earls-would-join-short-list-of-nc-justices-if-picked-for-us-supreme-court/

[11] Id. at 27.

[12] Id. at 29.

[13] Id. at 40.

[14] Id. at 41.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s