The Supreme Court ruled on May 17th, 2010, that federal officials can indefinitely hold inmates after their prison terms are complete. The high court in a 7-2 judgment reversed a lower court decision that said Congress overstepped its authority.
Ex post facto laws are explicitly forbidden to the federal government and the states by two separate and quite specific clauses in the constitution, the government’s authorizing document:
The federal government: “Section 9 – Limits on Congress – No … ex post facto Law shall be passed.”
The states: “Section 10 – Powers prohibited of States – No State shall … pass any … ex post facto Law”
You may be asking, “What is an ex post facto law?” The legal definition is given by Calder v Bull (3 US 386 ), in the opinion of Justice Chase, which defines four ways laws must fail as ex being post facto:
1st: Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
2nd: Every law that aggravates a crime, or makes it greater than it was, when committed.
3rd: 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 offense, in order to convict the offender.
Now, read #3 carefully. Clearly, extending a prisoners sentence beyond that specified by the law at the time of conviction qualifies in every way for this class of ex post facto law. Here’s an example. Suppose the maximum punishment for the crime is ten years, and this is the punishment meted out by the judge upon finding guilt. Then, at the ten year mark, when the prisoner has every right to expect release, the government, under this new law, decides to just keep them in prison. Indefinitely.
Just one more out of control event in a series of unauthorized actions by our supreme court. Let’s be clear: The US constitution is the authorizing document for the federal government, and also serves in large part as authorization and a mechanism to forbid action by state government. The only things the government are authorized to do must fall into issues that are not forbidden (as this action specifically is), and are permitted, which this action is not.
In the US, the government is authorized to use power by the constitution in very specific ways. Some things are not authorized by virtue of not being mentioned or even implied; others are not authorized by virtue of being forbidden, which is the case here. To the extent that the government exercises powers is it not authorized to have, it is a government out of control.
This is one of the tragedies of our time; our government, once the embodiment of hope of the founders and the pride of every American, is now running wild, doing whatever it “feels” is right, regardless of its authorizing charter. This is in no way different than rule by royalty. When decisions are taken outside the realm of what the people permit, then the government is no longer responsible to the people.
For any of you who are in sympathy with this law, let me point out that there is a means for the government to obtain these powers. That is embodied in article five, which defines how amendments may be made to the constitution. Basically, if the people say that they are willing for a specific change to be made, then such powers can be authorized. There is a formal procedure, however, and without that procedure, no such powers can be authorized.
I was raised with the idea that I lived in a constitutional republic. As I learned about the government, I found more and more evidence that this is actually not the case. In the US, the government exercises arbitrary power. Not constitutionally authorized power. I wonder why we have to accept this. And if we don’t have to, I wonder why we do.