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Bill of attainder

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Description: Legislative act that, without a trial, conveyed punishment on a person guilty of a seditious act, later was generalized to mean any law that punishes a person or group without a trial.


Significance: The U.S. Constitution prohibits Congress from passing bills of attainder. The Supreme Court determined that Congress was also barred from passing bills of pains and penalties, which convey punishments short of death for seditious acts.


The bill of attainder, along with the bill of pains and penalties, was employed by the British Parliament in the sixteenth and seventeenth centuries. The bill of attainder condemned people to death without due process and often denied their heirs the right to inherit any properties they owned. The bill of pain and penalties sentenced people to punishments short of the death penalty such as banishment or seizure of their possessions, again without a trial. During the American Revolution, some states passed bills of attainder or bills of pains and penalties against people disloyal to the American cause. Nonetheless, many of the Framers of the Constitution found bills of attainder objectionable because they viewed it to be the role of the courts, judging individual cases, rather than the legislature, to determine punishment. James Madison, in The Federalist (1788), No. 44, found bills of attainder to be “contrary to the first principles of the social compact.” Article I, section 9, clause 3, of the U.S. Constitution prohibits the federal government from passing bills of attainder; Article 1, section 10, clause 1, prohibits the states from doing the same. The Supreme Court interpreted these clauses as covering bills of pains and penalties as well and grouped the two under the term “bill of attainder.” In modern usage, bills of attainder refer to legislative acts that punish a person or group without a trial. In Calder v. Bull (1798), the Court stated that the prohibition against ex post facto laws (such as bills of attainder) dealt only with civil and not criminal cases. Given the due process clause and the Bill of Rights, the distinction between civil and criminal law is not applicable to modern jurisprudence. However, the Court's early interpretation was not an uncommon sentiment among the Founders. In the twentieth century, attainder became an issue in cases in which legislation was passed to impose punishment of any kind on individuals or members of specific groups rather than to regulate for a legitimate purpose. Legislators must scrutinize bills carefully to avoid legislation being found a bill of attainder. For example, the Court held, in United States v. Lovett (1946), that appropriation bills cannot speak of denying funds to “subversives” because such a designation reflects punishment through an ex post facto conviction and is a denial of due process. Attainder violates due process because it predetermines guilt. In Beazell v. Ohio (1925), the court stated that statutory ex post facto changes in trial procedures or the application of the legal rules are a violation of due process and constitutional violation. In United States v. Brown (1965), the Court invalidated a federal statute banning Communist Party members from becoming officers in a union in order to minimize the danger of politically motivated strikes that would possibly harm the national economy. The Court found the law a bill of attainder and therefore in violation of the Constitution. It argued that the determination of whether a specific person's activities were dangerous conduct was to be made by the judiciary, not by Congress. In making the law, the Court said, Congress erred by attributing the undesirable trait (likelihood to cause a political strike) to members of a specific group, the Communist Party. The Court ruled that the bill of attainder clause was intended as a “safeguard against legislative exercise of the judicial function or more simply trial by legislature.”



Further Reading

  • Abraham, Henry Julian, and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003.
  • Chaffee, Zechariah. Three Human Rights in the Constitution of 1787. Lawrence: University of Kansas Press, 1956.
  • Galligan, Denis J. Due Process and Fair Procedures: A Study of Administrative Procedures. New York: Oxford University Press, 1996.
  • Lee, Francis Graham. Equal Protection: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2003.
  • Melusky, Joseph A., and Keith A. Pesto. Cruel and Unusual Punishment: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2003.
  • Perry, Richard L., ed. Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights. New York: Associated College Presses, 1959.