A recent decision by the South Carolina Supreme Court on one of the most mundane issues of road maintenance offers a clue as to how the state constitution relates to an ancient villain. Retroactive laws give Congress the power to say not only what future laws will be, but what they will be. It was In the past.

Perhaps the “villain” is too strong. In some cases, retroactive law is necessary to achieve justice, especially when it does not adversely affect someone’s rights or disrupt their expectations. For example, if a state legalizes the possession of marijuana, Congress would have to retroactively vacate any prison terms served under the old law.

But in many cases, retroactive laws are inherently unfair, upend plans, and rewrite history. To use a real-world example, let’s say you get injured on the job, and then the legislature changes the law to limit liability for you. In other words, the estate owes you money, but then the legislature invalidates your claim.

There is nothing difficult about retroactive criminal penalties. These are unconstitutional under the U.S. Constitution’s ex post facto clause, which prohibits both Congress and the states from passing laws that retroactively increase penalties for crimes or criminalize acts that were legal at the time they were committed. But since 1798, the U.S. Supreme Court has said “ex post facto” refers only to criminal law. State courts have generally followed this example when it comes to their own constitutions. Therefore, under both the federal and state constitutions, litigants retroactively argue Civil matter Law had to look for other means of relief.

For centuries, American courts have declared things like, “In English common law, which is as old as the law itself, it is a general rule that even an act of an all-powerful Parliament has no retrospective effect.” Those are strong words. But they are the basis for legal interpretation and the basis for constructive norms that shape the law into the future when the arrow of time is ambiguous. In the UK, Parliament can ultimately do whatever it wants. And in America, Congress can generally change past laws if it’s clear enough. Of course, unlike in older countries, the U.S. or state constitutions may preclude Congress from acting. However, when and how to do so is often complex and unclear when it comes to retroactivity.

This is not the case in some states. As Jeffrey Usman, now a judge on the Tennessee Court of Appeals, explained, the constitutions of at least 10 states explicitly prohibit at least some retroactive civil laws (although court outcomes vary): Colorado, Georgia, Idaho, Massachusetts, Missouri, New Hampshire, New Mexico, Ohio, Tennessee, and Texas. Elsewhere, litigants must find other tools. If a law retroactively overrides a contract, the U.S. Constitution’s Contracts Clause, or a state’s equivalent clause, could render that law unconstitutional (though, as we discussed here, that’s difficult to do). Alternatively, due process clauses may be helpful regardless of whether a contract is at issue. A further measure is the separation of powers. Now, back to South Carolina.

Money passed to county governments may be in the form of taxes or fees. That distinction can be important. Several years ago, the South Carolina Supreme Court ruled that certain road maintenance fees paid by county residents to license their vehicles were actually illegal taxes. State law required fees that directly benefited the payers, as opposed to taxes that were collected for the benefit of the general public. In response, residents from two different counties filed lawsuits seeking to recover amounts paid for road maintenance. And in further response, Congress amended relevant statutes to clarify that the fees need not benefit the payer more than the general public, and that such fees collected in the past are lawful. The county then attempted to dismiss the lawsuit based on this proposed amendment, but the plaintiffs argued that the law was unconstitutional, violating the separation of powers because it would be applied retroactively.

Retroactive amendments are a type of retrospective law and are sometimes referred to as “declaratory” or “verifying” or “explanatory” laws. This problem often arises when the legislature disagrees with the way the courts have interpreted the law. Adopting additional legislation to essentially say, “You’re wrong, court, this is the law.” actually meaning. “The separation of powers between law-making (Congress) and law-interpretation (the courts) has been part of the American government since the beginning, but it has always troubled American judges. As Professor James Funder once detailed, courts have often refused to enforce declaratory acts dating back to the nation’s founding.

The situation is no different in South Carolina. In the 1974 incident, Lindsay v. National Old Line Insurance Companythe Supreme Court ruled that the declaratory act was unconstitutional under the state constitution’s Separation of Powers Clause because “the enactment of statutes is the function and responsibility of the judiciary.” lindsaywhich in turn relied on an earlier Georgia case that was part of the same tradition Funder had identified. For many years since then, the court has lindsay Several times.

When road maintenance costs are incurred, Butts vs. Maceit ended up going back to the South Carolina Supreme Court, and the question was whether the court should overturn the decision. lindsay and allow Congress to change past laws.

That happened last month. find lindsay It’s unjust and a departure from an old South Carolina case (not mentioned in this article). lindsay), the court unanimously reversed the precedent and said Congress was free to adopt declaratory law. The report said this had been in place since before 1974, even though “such laws have traditionally been viewed as questionable.” He also said that on other issues, the court has adopted a “functional separation of powers framework” that allows for some degree of overlap between the branches. lindsay It departed from this more flexible constitutional practice. He also promoted an expansive view of legislative power under the South Carolina Constitution, saying the Legislature can be retroactive if there is nothing that prevents the law from being retroactive, such as a contract clause. The court did not address Georgia’s earlier cases or the other cases in that tradition mentioned above. This may limit its practicality in other locations.

But curiously, the court drew the line at Congress’s reopening of the final judgment. This means that plaintiffs who have won lawsuits to recover illegal taxes in the past will not lose their judgments (and awards) now that Congress has declared those legal fees paid. The court argued (without authority) that reviewing these decisions “would raise serious separation of powers concerns.”

Right? On what basis? Are the same principles and precedents already discounted? Perhaps concerns about “vested interests”? In my opinion, it’s a strange feeling of tension. Resuming the judgment seems to be too much of a bridge between the three powers.

Those grappling with similar retroactivity issues in other states can learn not only from this thorny South Carolina example, but also, more importantly, from the mishmash of other ways states have approached and avoided changing their laws in the past.

One of the most fundamental concepts of justice is established expectations, and at its heart is retrospective legislation. There are many tools available to address Congress’ desire for time travel, and they are only as good as the judges involved in Congress.

Anthony Sanders is director of the Center for Judicial Engagement at the Institute for Justice.