Is Amendment 36 "Retrospective?"

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The Colorado Freedom

Is Amendment 36 "Retrospective?"

by Ari Armstrong, October 27, 2004

I incorrectly wrote that Amendment 36 is an "ex post facto" measure. I was technically wrong, but it is a "retrospective" law as prohibited by the same Colorado Constitutional provision.

Civil rights and criminal defense attorney Paul Grant argues, "Amendment 36 is intended to be retrospective, within the meaning of Article II, Section 11 of the Colorado Constitution. If enacted, it would violate that provision. The right to vote for presidential electors as it exists when votes are cast in 2004 will be retroactively redefined if the measure passes."

This matter was raised by a blogger called "Xrlq," who criticized my take on a first, second, and third web page. My letter to Xrlq is reproduced below. Xrlq still didn't buy my case, but I'll take Grant's opinion over that of Xrlq.

Dear Xrlq,

Thank you for linking to my article about Amendment 36.

I have a new, shorter piece in the Rocky Mountain News.

However, you are incomplete in your claim, on at least two web pages, that my argument that Amendment 36 constitutes "ex post facto law" is, in your words, "stupid." While I did make an error, I think the substance of my claim may be correct, as I explain below.

Furthermore, you write, "Ari Armstrong, by contrast, offers some really stupid arguments against Amendment 36." You thereby indicate that several of my arguments are stupid. However, you don't mention what you think these are or why they might be wrong. It's pretty hard for me to offer a correction or rebuttal when I don't even know what you're complaining about.

On to the debate over the meaning of "ex post facto." Amendment 36 certainly is "retroactive," and the text of the ballot measure asserts it is to "apply retroactively."

Now, it is important to note that, whether or not Amendment 36 violates the specific provision of the Constitution, my argument about fairness still applies. Amendment 36 is retroactive, and that's unfair, regardless of whether it violates the Constitution. However, I'm not willing to give up the Constitutional argument just yet.

If we go by common usage, my Random House defines "ex post facto" as "from or by subsequent action; subsequently; retrospectively or retroactively."

But let us turn to legal usage. The language about "ex post facto" laws is provided in the Colorado Constitution under Article II, the state's Bill of Rights, as passed in 1876. Section 11 is titled, "Ex post facto laws." The complete text reads, "No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly."

This language prohibits "ex post facto law" AND "law... retrospective in its operation." Thus, the language clearly applies more broadly than criminal law.

To see the annotations, please see, click on "CO Revised Statutes," search for "ex post facto," and find the link to the Constitutional provision.

You are correct that the term "ex post facto" refers to criminal law in the legal sense in Colorado. The annotations relate, "The prohibition against ex post facto laws is aimed at criminal cases, but it cannot be evaded by giving a civil form to that which in its nature is criminal. French v. Deane, 19 Colo. 504, 36 P. 609 (1894)."

However, the fourth section of the annotations pertains to "laws retrospective in operation." The annotations read, "This section prohibits the enactment of any law retrospective in its operation."

So I was technically wrong in calling Amendment 36 an "ex post facto" law in the legal sense. However, I continue to believe it is "retrospective" as that term is used in Colorado's Constitution. I invite you to read through the annotations and tell me whether you agree with me. (I'm also asking some of my lawyer friends, so hopefully I'll come up with a definitive answer.)

Furthermore, I encourage you not to suggest multiple arguments are "stupid" unless you're willing to list which arguments you think those are and why you think they're wrong. That's the only fair way to allow your opponent to respond.

--Ari Armstrong

The Colorado Freedom