Prometheus 6

Yes I posted this before, back when I thought our Democratic Congress might do something. 

Something has been gnawing at me since Senators Spector and DeWine submitted their bills intended to excuse the president's domestic wire tapping programs.

First, the relevant part of Article 1, Section 9 of the Constitution:

No Bill of Attainder or ex post facto Law shall be passed.

There's a bunch more, but they are cleanly severable.

Next, the definition of ex post facto

Formulated, enacted, or operating retroactively. Used especially of a law.

For a textualist or strict constructionist, that should be enough to make the case. For you pesky folks need an explanation,  a bit of discussion about the meaning of "ex post facto law" in Constitutional law.

Ex post facto laws retroactively change the rules of evidence in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed. They are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution. An ex post facto law is considered a hallmark of tyranny because it deprives people of a sense of what behavior will or will not be punished and allows for random punishment at the whim of those in power.

You cannot retroactively change the definition of a crime. We tend to be more concerned about incriminating people after the fact than failing to punish people for crimes because, well...we're kinda used to that. But law enforcement is an executive function, and realistically it can fail on the ground for reasons outside the control of that function. We can't judge legislative action by criteria appropriate to the executive or judicial branches.

The intent of the founders is clear.

The prohibition of ex post facto laws was an imperative in colonial America. The Framers of the Constitution understood the importance of such a prohibition, considering the historical tendency of government leaders to abuse power. As Alexander Hamilton observed, "[I]t is easy for men … to be zealous advocates for the rights of the citizens when they are invaded by others, and as soon as they have it in their power, to become the invaders themselves." The desire to thwart abuses of power also inspired the Framers of the Constitution to prohibit bills of attainder, which are laws that inflict punishment on named individuals or on easily ascertainable members of a group without the benefit of a trial. Both ex post facto laws and bills of attainder deprive those subject to them of due process of law—that is, of notice and an opportunity to be heard before being deprived of life, liberty, or property.

The language is broad but clear. Changing a law to excuse offensive government action is as against the intent of the Founders as changing a law to initiate offensive government actions, because either totally invalidates due process and undermines the rule of law.