The matter of ex post facto law needs further examination and clarification. Here’s another document.

One part here struck me: “According to Blackstone, an ex post facto law has been created when, ‘after an action (indifferent in itself) is committed, the legislature then for the first time declares it to have been a crime, and inflicts punishment upon the person who has committed it.'”

Blackstone is an important reference for items in the U.S. Constitution because it was contemporary and known to be on the bookshelves of the framers. It carries a good deal of weight about the meaning of terms at that time.

“Indifferent in itself” means neither good nor bad, having no particular interest. Judged how? Judged by such means as some pre-existing ideas of law. Both genocide by the Nazis and chattel slavery as exercised in the South were not indifferent in themselves. We can find lots of contemporary legal and other reasoning in both cases that condemns these practices. Therefore, for a body to have declared them to be crimes for the first time (in its proceedings that are historically bounded) and inflicted punishments and penalties would not be ex post facto law, according to Blackstone.

In this document the first brief definition says “Laws that provide for the infliction of punishment upon a person for some prior act that, at the time it was committed, was not illegal.” Slavery was not illegal in America before 1865, so that by this definition, reparations would be ex post facto. However, theft was illegal and kidnapping was illegal and forced labor was illegal. Applying these laws only to protect whites and not to protect blacks was declared legal, but was such a discrimination by race indifferent in itself? Was it actually legal by appeal to other pre-existing ideas? Well, certainly not by the principles enunciated in the Declaration! They go back to self-evident principles. Even by this brief definition, one can therefore argue that arguing in favor of reparations does not require elevating ex post facto law-making into a good principle or a libertarian principle.

However, that brief definition is not all that’s in the meaning of ex post facto. This document goes on to provide some meat on the bones, and this meat has a thrust that is anti-tyranny:

“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.”

In other words, this virtually says that ex post facto laws have a tyrannical intent or that they abuse power according to unknown and unstable criteria. Would this be the reason or method behind reparations? It would not. Walter Block has elaborated the reasons why reparations would fall within recognized accounts of libertarian law and protection of private property rights. By this criterion, we again reject the presumption that reparations are ex post facto and with it disappears the disturbing idea that ex post facto laws are central to libertarian theory.

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