The Columnist Manifesto

One more thing... Part 6 of 5 on steroid use in baseball

As "a professor of constitutional law," as well as a baseball fan, I can't resist adding one more thought. The idea of wiping out records of players who have used steroids prior to today, in addition to its flaw of punishing the fans as well as the offending players, is also un-American. Our constitution embeds as one of its core principles, a prohibition on "ex post facto" laws. (U. S. Const., Art. I, sec. 9, cl. 3) An ex post facto law increases a penalty retrospectively, that is, it punishes a crime that has already been committed more severely than called for under the law at the time of the crime. Our founders viewed ex post facto laws as a hallmark of oppressive and arbitrary government.

The whole reason that Congress held the steroid hearings is that the Major League Baseball penalties against steroid use were too light; players were presumably taking calculated risks by using steroids, figuring they could accept the penalties if caught. Wiping out records is a bad idea for many reasons, not least of which was that it wasn't a prescribed penalty at any time in the past, and it would therefore be an ex post facto punishment.

So Senator Jim Bunning should shut up, and Congress should not try to pressure MLB to do something that Congress could not constitutionally do by legislation. Nor should MLB "voluntarily" impose ex post facto punishment on steroid-using ballplayers. Even though the constitution doesn't reach MLB's actions, it would be ironic indeed for our "national pastime" to adopt the practices of tyrants rejected by our constitutional founders.

Okay, I've said more than enough on this subject...

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