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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

Though the word ‘retcon’ is relatively new to the U.S. legal system, the process of retconning is not. That law professor friend of mine recently emailed me about a pair of articles: “Had to copy and paste these for you when I read them: my colleague’s retcon account of unconstitutional laws, which one would never find by search for ‘retcon’ or cognates. You’re right—we’re all retcons now.”

In his 2008 Georgetown Law Review article “The Executive’s Duty to Disregard Unconstitutional Laws,” Saikrishna Bangalore Prakash coins the term ‘Citizen Disregard’ as a subset of civil disobedience. A citizen “may choose to defy all manner of statutes that they believe are unconstitutional,” claiming such a “statute is no valid law at all and hence her actions were not unlawful.” If “a court concludes that the underlying statute is constitutional, the private citizen will be found guilty,” but if the court agrees, the citizen is not guilty—revealing that the apparent law was never an actual law. It was just mistakenly understood to be one by people other than the citizen disregarder.

Such a decision is a retcon. It reveals how things actually were all along. If the decision were a sequel, then the citizen disregarder would have been guilty of breaking the law while it was still a law, but then not punished because the law was struck down by the court during the subsequent trial. The sequel v. retcon distinction is less a disagreement about constitutionality and more about reality. Was a law a law before it wasn’t a law or was it never a law at all?

Prakash adds in his 2020 Harvard Lew Review “Faithless Execution” that citizen disregard retcons are independent of the judicial decision: “the American tradition has been to conclude that … some ‘acts’ are unconstitutional, and are therefore nullities, without regard to whether a court has so declared.” This further distinguishes the retconning from sequels, because sequels are created by new actions. Though retcons require revelations to be recognized and then applied, their logic requires that any revealed reinterpretation was always true and would be true whether revealed or not. The court does not make the statute a nullity. It discovers that the statute was always a nullity.

The Supreme Court’s 1886 Norton v. Shelby County decision makes the retroactive nature of a judicial retconning explicit: “An unconstitutional act is not a law … it is, in legal contemplation, as inoperative as though it had never been passed.” The case determined that bonds signed by a county commissioner were not valid because, despite a sequence of individuals appearing to serve as county commissioners for the two decades, the county never had a commissioner. They just thought they did. The Court explained: “As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions.” The court called them “usurpers.”

In his 1962 article “The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio,” Paul Bender explores the practical ramifications of such court-discovered usurpers. The Supreme Court ruled in 1961 that Cleveland police officers who broke into Dolly Mapp’s home without a warrant had no legal right. Mapp was dating a Cleveland racketeer, and the police found a suspect in the bombing of a rival racketeer’s home hiding in her basement. They also found gambling slips and pornography. Mapp was acquitted of the gambling offense, but after she refused to testify against her boyfriend, she was sentenced for the pornography. By declaring the evidence inadmissible, the Supreme Court freed Mapp and also reversed its 1949 Wolf v. Colorado decision, which had instead determined that the prohibition of illegally-seized evidence did not apply to state courts, upholding the conviction of Julius Wolf for “conspiracy to perform an abortion.”

Bender calls the “sudden change of law” produced by Mapps “an unorthodox exercise of judicial power” that creates a “problem of retroactivity” about “which rule applies when trials predating the announcement of the new exclusionary rule are now challenged.” Though he makes an extensive argument for what he calls “a somewhat arbitrary line excluding most previous trials,” Bender also acknowledges that “the only logical choice would be complete retroactivity.” That’s because Mapps is a retcon, not a sequel. While content that the decision applies to all future cases, he seems uncomfortable with its also being retroactive. (In the language of my previous posts on judicial retconning, Bender thinks Mapps is a Klingon butthead.)

Bender may be correct that “the purposes of the new rule do not call for general reexamination of previous convictions,” but any reexamination of a conviction based on evidence that is retroactively revealed to have been inadmissible must be overturned. While Mapps does not “call for a general reexamination”—which presumably would involve a review of all cases to identify those that involved inadmissible evidence—it does not bar it either. It does, however, require that if such a conviction is examined, it must be overturned.

Bender’s use of the word ‘announcement’ is revealing. Mapps announced “the new rule exclusionary rule,” and so in the logic of retconning which Bender acknowledges, it did not create the rule. The newly discovered rule applies to all trials regardless of when they occurred. The announcement itself did not do anything—except for Dolly Mapps. If other wrongful convictions are to be overturned, each must be brought before a court too.

This is true of retcons generally. The announcement of the new discovery of Neptune in 1846 did not alter any astronomy textbooks. That required a separate and protracted process of its own. Bender’s question of applicability is akin to an astronomer asking whether the existence of Neptune should be applied before 1846 or only afterwards.

Bender also cites the Supreme Court’s 1940 Chicot County Drainage Dist. v. Baxter State Bank, which expresses a similar discomfort with retconning and a preference for sequels. The decision reversed a lower court’s application of the Shelby logic to a bankruptcy case: “The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree.” This time the Court rejected that retconning logic: “The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration… a principle of absolute retroactive invalidity cannot be justified.”

Chicot incorrectly relies on the logic of sequels. A retcon does not erase the past—it reveals it. The past is neither justified nor unjustified—it is whatever it is, however convenient or inconvenient. If past facts were previously misunderstood, the mistaken account is invalid. Referring to “a new judicial declaration” that erases the past implies a kind of sequel. Things were one way, and now they are some other way. Shelby and Mapps instead establish that nothing actual has changed. Stating that the unconstitutional statue had “actual existence” would require that it had been previously constitutional—otherwise it was never an actual statute. The plaintiffs in Shelby argued the county commissioners “were officers de facto,” which means “in actual existence,” a principle the Court absolutely rejected.

The disagreement between the 1940 Court and 1886 Court is the nature of judicial revision. Do retroactive decisions change the past or reveal the past? The jury may still be out.

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