This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. Furthermore, prohibiting ex-post-facto laws means you can't pass a law which criminalizes actions in the past. But courts don't pass laws, they interpret them. There's plenty of cases where courts interpret a law in a new way because of new situation. For example, I'm sure Clayton County is going to face applicable penalties under Title VII after Bostock v. Clayton County (recent LGBT discrimination ruling).
This is a common misconception. Courts don't pass statutes, but they certainly create law. Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court.
This is the essential difference between a common law and civil law system. There are still rulings in the US that cite old English cases from before 1776 as the basis of the law in this country.
> Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court.
While it's true that courts (in the US and similar systems) make law, this specific claim is an exaggeration, at least as regards the US. Full precedential weight generally only applies to published decisions, which are only about 1/3 of decisions of, for instance, the US Courts of Appeals.
Sure, but it's irrelevant in this case because the Constitution prevents Congress and the states from passing an ex post facto law, not the courts from applying a new precedent to past events. I was just trying to argue that applying court decisions to events in the past doesn't violate the prohibition against ex post facto laws.
Only in a country with jurisprudence. Not all countries hold that court decisions require following court decisions to respect previous decisions (ie, legal precedent).
> This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition.
That's not what I was talking about. Look at the example I used. The Supreme Court declared it was unconstitutional to forbid gay marriage, even though that was the common practice up to that time. So, now we've discovered all the people who were engaged in implementing the common practice were violating the constitution? What happens to them now.
The courts don't examine theoretical questions of legality. Every law that was declared unconstitutional was a law that was passed and enforced, usually in good faith.
This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. Furthermore, prohibiting ex-post-facto laws means you can't pass a law which criminalizes actions in the past. But courts don't pass laws, they interpret them. There's plenty of cases where courts interpret a law in a new way because of new situation. For example, I'm sure Clayton County is going to face applicable penalties under Title VII after Bostock v. Clayton County (recent LGBT discrimination ruling).