is judicial retroactive lawmaking unconstitutional
Alone, the changes to the statute contained in the amendment are not unconstitutional. However former Gov. Kaineâs budget applies the amendment retroactively to the 2004 taxable year. This retroactivity element is unconstitutional. Constitutionality of Retroactive Tax Legislation. Using the U.S. Supreme Court decision in United States v. Carlton, 512 U.S. 26 (1994), and the Virginia Supreme Court decision in Colonial Pipeline Company v. Virginia, 206 Va.