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Retroactive Legislation Violates The Rule Of Law

The clash between Democrats and Republicans on the question of ethics reform is not at all surprising.

Even now, one imagines campaign strategists sifting through the rubble in search of campaign fodder.

Democrats and Republicans on the government administration and elections committee “clashed,” as one newspaper reported over the question of retroactive punishments.

It had been proposed to allow Superior Court judges to revoke retroactively the pensions of state officials convicted of crimes. The target of the proposal was, of course, former Governor John Rowland and a handful of former legislative villains.

Two ethics bills, both of which included 10-year retroactive measures to revoke the pensions of public officials convicted in state or federal court, were reported out of committee over the objections of Republicans.

High ranking Republicans on the committee Rep. John W. Hetherington of New Canaan and Sen. Judith G. Freedman of Westport objected to the bill but voted in the affirmative to send it to a vote in the legislature because they did not wish to obstruct a broader consideration of the measure.

One wide awake Democrat, Rep. Thomas Drew, a lawyer who represents Fairfield demurred. "I question the constitutionality of it,” Drew said, “I'm not sure the idea is within the spirit of the Constitution.”

Not to put too fine a point on it, but the punitive legislation, first introduced by Attorney General Richard Blumenthal in January 2004, violates not merely state and federal constitution; it violates what some Superior Court justices not lost in their cups would consider the Rule of Law itself, the body of legal prescriptions that shapes all laws.

Nullum crimen, nulla poena sine praevia lege poenali means no crime (can be committed), no punishment (can be imposed) without (having been prescribed by) a previous penal law). This basic tenet of the rule of law undergirds all laws, both statutory and constitutional.

People ought to be able to direct their lives with reference to legal strictures that do not punish them for comporting themselves in a legal manner. If no law prohibits an action, that action is permissible, and those who engage in it ought not to suffer penalties. The legislation presented by Blumenthal for consideration and several times rebuffed by the legislature violates the principles of statutory, natural and constitutional law because it assigns punishments for behavior that was retrospectively legal.

Try to imagine the great stir among the populous that would occur were the legislature to create a new law imposing higher penalties for traffic violations -- applying the new sanctions and penalties retroactively to anyone who had received a traffic ticket within the last ten years. Try to imagine the upheaval that would occur in the lives of every citizen in Connecticut if its legislature were to adopt the principle of retroactivity in the making of every law.

The legislature is the supreme authority in Connecticut, and it may write whatever new laws it sees fit, but it may not apply those laws retroactively without violating the Rule of Law itself, and it may not construct laws that do not have a general application without violating the Rule of Law. Attorneys general who have a problem advancing the Rule of Law ought to be booted from office at the first opportunity.

Clash number two was vastly amusing. It involved the usually humorless Danton of the state legislature, Rep. Chris Caruso, who was rebuked, as the newspaper put “by his fellow Democrats in an 8-4 vote against prohibiting lobbyists from serving on boards and agencies such as the Metropolitan District Commission, the state's regional water and sewer authority. Caruso had pushed for a measure barring lobbyists from all state boards, but he said it would also lead to the ouster of former Senate Majority Leader William A. DiBella from his position as the controversial chairman of the [Metropolitan District Commission]."

More person specific laws in the hopper.

At one point in the deliberations, it was thought that Caruso’s person specific legislation -- aimed at ousting people targeted by Caruso for punishment -- would prevent anti-war protestor Tom Swan, who managed Ned Lamont’s unsuccessful bid to unseat Sen. Joe Lieberman, from accepting a position as co-chairman of the HealthFirst Connecticut Authority, a group that is trying to create a plan for universal health care by November.

Swan is also The Connecticut Citizen Action Group director, and he’s angling for a national position in the anti-war movement. Swan said he would be happy to bump himself off and forgo some positions if it would help rid the state of lobbying influence at the Capitol, and never mind that the constitution provides cover for lobbyists in the clause that gives all citizens the right to petition their government for a redress of grievances – usually caused by Dantons and Robespierres such as Caruso and Swan.


mccommas said…
This would violate the 5th Amendment, the takings clause?

Any other areas?

This legislature doesn't seem to have such high regard for our Constitution and neither do the judges they approve.
Don Pesci said…

I added a few lines that I hope may answer your question. The rule of law is not a law, or even a body of laws. It is the general understanding upon which all laws are built, such as -- laws to be just must be general, non specific; where no law has proscribed an action, the action is legal; ex post facto laws are inherently unjust and may not be permitted ... These understandings, some of which go back to the first written laws, are emobodied in all laws. They concern justice rather than proscriptions and prescriptions found in positive law, statutory or constitutional.

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