Ex Post Facto Voting Rights

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The Republic of ancient Rome was not something we would regard as a republic today. In point of fact 90% of Rome was prohibited from voting. The Roman Senate was chosen by the elites, those of great wealth.

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There were proposals to begin a limited inclusion of that 90%, the plebeians. This was widely thought to be … well … controversial. Limited is an understatement. Largely ceremonial positions with circumscribed powers didn’t satisfy much of anyone.

A plot led by Lucius Sergius Catilina was formed to overthrow the entire messy government. Catilina is a fascinating fellow. He was partly an accused O.J. style killer. His wife, son, and by then ex-brother-in-law were murdered. And he later became somewhat of a social reformer with economic plans the elites thwarted.

The plot involved a lot of bloodletting among ruling Senators. Eventually several thousand supporters of the conspiracy were killed in battle with Catalina.

A dictator was named to uncover and punish anyone who was involved. Informers were encouraged to bring accusations. If anyone’s loyalty was in doubt, laws were passed to cover the accusations. Those accused retroactively were executed, and their estates went to the government. The informers got a percentage of the confiscated estates.

Think of it as McCarthyism on commission.

Romans were pretty good at record-keeping. The names of the informers were duly filed away. When those who were allowed to vote for Senators got a little antsy about fellow members of the elite being accused, killed, and their families left penniless, they kind of turned on the idea of killing and confiscation. So new laws were invented and many of the informers were accused and executed. Pac-man law.

Eventually, the whole idea of retroactive laws had lost its appeal. “Ex post facto” came to possess a negative connotation.

That is not to say the practice stopped. After Julius Caesar was assassinated by those who thought Romans would celebrate, the entire edifice of the elitist republic went into decline. Emperors took over, and often the wealthy were targeted for new crimes that were applied retroactively.

Old crimes for which penalties had already been paid were also re-prosecuted. New punishment for old crimes included execution and confiscation of wealth. They had to keep each new Caesar living in style.

The practice of inventing new laws or revamping old laws with new penalties, then applying everything retroactively survived the Empire. Ex post facto laws were applied to pretty much anyone that royalty didn’t like. Retroactive punishment in England was often used to persecute Catholics then Protestants then Catholics.

After the American revolution, Ex Post facto laws took another turn. Those who had not supported the revolution were targeted for retribution. That bothered those gathered to form a new Constitution. They were also a little bothered by old, settled, violations with newly invented punishments. What bothered them even more was the effect on money.

Lots of people owed money to people in other states. It was part of doing business. I buy from you, I owe you the money, and I am required to pay it. But, since a lot of folks from other states were owed the money, individual states made it easy to help those who owed screw over those who were owed. They did it with ex post facto laws. In South Carolina, for example, those who owned lots of worthless land that nothing would grow on were allowed to use it to pay off debts.

Since I owe you ten thousand dollars and I don’t want to pay you in cash, I’ll give you an acre of land worth ten thousand dollars – heh heh heh.

So delegates put two clauses directly in the Constitution. One said Congress can’t pass laws and punishments retroactively. The other said no state could pass anything retroactively.

The punishment part applies to basic rights. A law can’t take your property or fine you for some offense that was not an offense before the law was passed. And a law can’t be revised to increase the punishment on violations that happened before the law was revised.

Remember that ten dollar traffic fine you paid last year? It’s now ten thousanddollars or ten thousand days in prison. See you in thirty years.

But the punishment part does not apply to privileges that are not rights. A new law can take away your license to drive if you have been legally blind since that firecracker accident. Driving is considered a privilege, not a right.

How is voting affected?

In 2008, Kelli Jo Griffin had been convicted of using drugs. She served her sentence and decided to turn her life around. She was correctly told that she could vote.

In 2011, the Republican governor of Iowa put in a new policy. Those who were convicted of serious crimes could never, ever, vote again. It was not a law, exactly, although laws are in effect concerning some felonies and vague “infamous crimes.” He just put it in an executive order. There was no effort to notify those who might register.

Last year Kelli Jo Griffin registered to vote. She took her two kids along so they could see good citizenship in action. She was later arrested for voting.

The governor not only issued the executive order, he also launched a criminal investigation to put in jail anyone with a record who had later voted. Griffin was one of these who had voted without knowing about the executive order.

She was offered a plea bargain that would have spared her from more jail time. She turned it down. A jury decided the accusation was unfair and found her innocent.

Should the executive order have been issued to begin with?

To those who believe voting is a right, the answer is obvious. Rights are not to be taken away by executive order.

Those who think of voting as a privilege that must be earned, a privilege always subject to proof, see it another way. Only the privileged may vote.

This article is a collaboration between MadMikesAmerica and FairandUnbalanced.com.

About Post Author

Burr Deming

Burr is a husband, father, and computer programmer, who writes and records from St. Louis. On Sundays, he sings in a praise band at the local Methodist Church. On Saturdays, weather permitting, he mows the lawn under the supervision of his wife. He can be found at FairAndUNbalanced.com
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Stormin' Norm
9 years ago

Shocking indeed. Mind you, The European Union are currently trying to make Britain allow prisoners currently serving jail terms the right to vote.

It’s a mad world eh?

Admin
9 years ago

I had never heard of the Kelli Jo Griffin case until I read this article. Shocking that this sort of thing could happen in America.

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