Jul 6, 2019 3 min read

The Constitution clearly states that ex post facto (“after the fact”) laws are forbidden. An ex post facto law is one that goes into effect retroactively to a crime – that is, it makes an action illegal, and therefore criminal, even though the action took place before the law went into effect.

Due to the ever-changing standards regarding what comprises criminal activity, the Founding Fathers believed someone who behaved in ways that were not considered criminal at the time should not be held liable if a law was later passed making that behavior criminal.

To that end, I believe we are, in a sense, applying the ex post facto standard culturally. Today, for example, we tear down statues of men who owned slaves 150 to 250 years ago, which seems a perfect example of cultural ex post facto being applied based on today’s standards regarding slavery, not on those of our Founding Fathers or southern slaveowners prior to the Civil War.

Two years ago, this week, in Alexandria, Va., where I live, the memorial plaque honoring George Washington that was on the pew of the Episcopal Church in which he worshiped was removed because he owned slaves. According to the church vestry, the plaque, which says “In memory of George Washington” made “some in our presence feel unsafe.” (Unsafe from whom? Washington has been dead for more than 200 years.)

Certainly, slavery and any form of racism is an abomination, and today slavery is a crime, but it was the norm for large landowners in the North and South in the 18th century.

Statues of Christopher Columbus are also being removed because after discovering the New World in 1492, he brought several natives back to Europe where they became slaves. Actually, in 1492 and for centuries afterwards, slavery was a global practice, including in Africa, where, oftentimes, if your tribe lost a war to another tribe, you and your family became slaves, both to the victorious tribe members and to anyone else they decided to sell you to.

Granted, the movement to remove Confederate flags from courthouses in southern states was justified because that was about continuing to apply 19th century standards to the present day. But that is very different from applying present-day standards to centuries past.

To me, memorials to our past, especially reminders of our failures, can teach us not to repeat past mistakes. And then there is this: Cultural ex post facto means we are condemning people for practices that, had we been white members of society living in their times, and by their cultural standards, not a single one of us can say with 100 percent certainty we would not have practiced as well.

Bruce G. Kauffmann’s email address is bruce@historylessons.net.