ny of the majority, judicial interpretations which would be governed by the changing political passions of the day (p. 46). Scalia's remedy for that lies within the conscience of each individual Justice who has it within his or her power to put to work their "impartiality, judgment and lawyerly acumen" to ascertain the true meaning of the law or constitutional provision before him or her.
2) The proposed tax on SUVs would not violate the Ex Post Facto Clause contained in Articles I, sec. 9 and sec. 10 of the Constitution. The purpose of the tax is to foster greater fuel efficiency. Its impact will be financial --i.e. to increase the costs (and reduce the profits) of car manufacturers and, at least in the short run, to increase the price of cars to consumers.
The Supreme Court has on a number of occasions dating back to the 1790s made it clear that the Ex Post Facto Clause(s) does not mean what it seems to say --i.e. it does not automatically render unconstitutional a law merely because it has a retroactive effect. The leading cases are Calder v. Bull (1798) and Fletcher v. Peck (1810). In the latter, Chief Justice John Marshall defined an ex post facto law as "one which rendered an act punishable in a manner in which it was not punishable when it was committed." That interpretation has basically remained valid since then. A number of federal and state cases cited at pp. 662-663 of Black's Law Dictionary make it crystal clear that an ex post facto law is only one which has a retroactive effect on then existing obligations and is criminal or penal in nature. The proposed tax is neither criminal nor penal.
In a recently (2003) decided Megan's Law case regarding Alaska's sex offender registration law, Smith & Botelho v. Doe, the Court reiterated that a law is not an ex post facto law even if some of its effects are punitive so long as its primary purpose is the preservation of public safety.
3) Procedural due process refer...