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> unconstitutional ex-post-facto punishment This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can

> unconstitutional ex-post-facto punishment This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. Furthermore, prohibiting ex-post-facto laws means you can't pass a law which criminalizes actions in the past. But courts don't pass laws, they interpret them. There's plenty of cases where courts interpret a law in a new way because of new situation. For example, I'm sure Clayton County is going to face applicable penalties under Title VII after Bostock v. Clayton County (recent LGBT discrimination ruling).

xxpor 6y ago
>But courts don't pass laws, they interpret them. This is a common misconception. Courts don't pass statutes, but they certainly create law. Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court. This is the essential difference between a common law and civil law system. There are still rulings in the US that cite old English cases from before 1776 as the basis of the law in this country.
- r00fus 6y ago
  Only in a country with jurisprudence. Not all countries hold that court decisions require following court decisions to respect previous decisions (ie, legal precedent).
  - xxpor 6y ago
    See the common vs civil law comment at the end. No idea how the other major legal systems like sharia work though.
    - r00fus 6y ago
      Jurisprudence isn't even uniform through Europe. IIRC, in France they don't consider precedent nearly as much as the US.
  - salawat 6y ago
    Stare decisis isn't a hill our legal system is 100% committed to dying on either. Precedent can be vacated as public sentiment changes.
- zucker42 6y ago
  Sure, but it's irrelevant in this case because the Constitution prevents Congress and the states from passing an ex post facto law, not the courts from applying a new precedent to past events. I was just trying to argue that applying court decisions to events in the past doesn't violate the prohibition against ex post facto laws.
  - xxpor 6y ago
    Yeah, I'm mostly being pedantic about one of my hobby horses.
- dragonwriter 6y ago
  > Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court. While it's true that courts (in the US and similar systems) make law, this specific claim is an exaggeration, at least as regards the US. Full precedential weight generally only applies to published decisions, which are only about 1/3 of decisions of, for instance, the US Courts of Appeals. https://libguides.law.ucla.edu/c.php?g=183345&p=1208531 https://libguides.law.ucla.edu/c.php?g=183345&p=1208531
ardy42 6y ago
> This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. That's not what I was talking about. Look at the example I used. The Supreme Court declared it was unconstitutional to forbid gay marriage, even though that was the common practice up to that time. So, now we've discovered all the people who were engaged in implementing the common practice were violating the constitution? What happens to them now. The courts don't examine theoretical questions of legality. Every law that was declared unconstitutional was a law that was passed and enforced, usually in good faith.

xxpor 6y ago

>But courts don't pass laws, they interpret them. This is a common misconception. Courts don't pass statutes, but they certainly create law. Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court. This is the essential difference between a common law and civil law system. There are still rulings in the US that cite old English cases from before 1776 as the basis of the law in this country.

r00fus 6y ago
Only in a country with jurisprudence. Not all countries hold that court decisions require following court decisions to respect previous decisions (ie, legal precedent).
- xxpor 6y ago
  See the common vs civil law comment at the end. No idea how the other major legal systems like sharia work though.
  - r00fus 6y ago
    Jurisprudence isn't even uniform through Europe. IIRC, in France they don't consider precedent nearly as much as the US.
- salawat 6y ago
  Stare decisis isn't a hill our legal system is 100% committed to dying on either. Precedent can be vacated as public sentiment changes.
zucker42 6y ago
Sure, but it's irrelevant in this case because the Constitution prevents Congress and the states from passing an ex post facto law, not the courts from applying a new precedent to past events. I was just trying to argue that applying court decisions to events in the past doesn't violate the prohibition against ex post facto laws.
- xxpor 6y ago
  Yeah, I'm mostly being pedantic about one of my hobby horses.
dragonwriter 6y ago
> Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court. While it's true that courts (in the US and similar systems) make law, this specific claim is an exaggeration, at least as regards the US. Full precedential weight generally only applies to published decisions, which are only about 1/3 of decisions of, for instance, the US Courts of Appeals. https://libguides.law.ucla.edu/c.php?g=183345&p=1208531 https://libguides.law.ucla.edu/c.php?g=183345&p=1208531

ardy42 6y ago

> This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. That's not what I was talking about. Look at the example I used. The Supreme Court declared it was unconstitutional to forbid gay marriage, even though that was the common practice up to that time. So, now we've discovered all the people who were engaged in implementing the common practice were violating the constitution? What happens to them now. The courts don't examine theoretical questions of legality. Every law that was declared unconstitutional was a law that was passed and enforced, usually in good faith.