The substance of punishment under the bill of attainder clause.

• Author: Dick, Anthony

INTRODUCTION I. THE TWO POLES OF PUNISHMENT UNDER THE BILL OF ATTAINDER CLAUSE A. The Narrow Originalist Reading: Death and Corruption of Blood B. The Free-Form Test for Punishment 1. The doctrine of motive and function 2. Punishment as deprivation in the abstract II. THE STRUCTURAL SYMMETRY OF LIFE, LIBERTY, AND PROPERTY PROTECTION UNDER THE CONSTITUTION A. Federalism and the Historical Symmetry B. The Amorphous Content of Life, Liberty, and Property C. The Standard of Review D. Subsidy Denials and Other Constitutional Violations III. APPLICATIONS A. The Civil War Cases B. Brown C. Lovett D. ACORN E. Public Utilities and Baseline Subsidies F. The Bank Tax G. Legislative Censure CONCLUSION INTRODUCTION

In October 2009, President Barack Obama signed into law a congressional enactment halting the disbursement of federal funds to the scandal-plagued Association of Community Organizations for Reform Now (ACORN). (1) This came in the wake of widespread allegations of fraud, corruption, embezzlement, and other criminality among the group and its affiliates. (2) On a motion for injunctive and declaratory relief, the Eastern District of New York struck down the defunding law on the ground that it singled out a named group for punishment without trial, in violation of the Bill of Attainder Clause. (3) A few months later, the Second Circuit reversed: Although the law did single out ACORN for unfavorable treatment, it was not a bill of attainder because it did not inflict any "punishment" on the group. It rather evinced a good faith effort by Congress to serve the legitimate purpose of maintaining integrity in the exercise of its spending power. (4)

These two cases showcase a deep and abiding puzzle in how the Bill of Attainder Clause is understood. It is generally agreed that Congress must be allowed to single out groups and individuals for some types of treatment. Congress can pass private bills, earmark unique subsidy recipients, and legislate with respect to "legitimate class[es] of one." (5) The overwhelming history and practice on this point render implausible the simple view that legislation must always be general and never particular. The challenge is how to identify "punishment," and thereby to define the scope of "singling out" that the Bill of Attainder Clause prohibits.

Current doctrine meets this challenge by offering three deeply unsatisfying criteria of what constitutes punishment: first, "whether the challenged statute falls within the historical meaning of legislative punishment"; second, a functional test of "whether the statute, 'viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes'"; and third, "whether the legislative record 'evinces a congressional intent to punish.'" (6)

The problem here is that the second and third factors are hopelessly circular, vague, and indeterminate. They are circular because any determination of punishment based on a law's "nonpunitive" characteristics itself requires a definition of punitiveness. The factors are vague and indeterminate because "punitiveness" admits of many different definitions that can dramatically alter the outcome of any case. As the ACORN case illustrates, the function and intent of almost any law can be characterized as either punitive or policy oriented, depending on the emphasis supplied. Even core examples of punishment, such as prison sentences and fines, serve some policy functions that can be described in nonpunitive terms: deterrence, incentivization, social coordination, etc. This makes any exclusive characterization of "punitive" intent and function at least incomplete, if not entirely arbitrary.

Others have recognized problems with the current doctrinal focus on legislative function and intent, (7) but no work to this point has properly focused on the substantive scope of punishment that the Bill of Attainder Clause prohibits. Of the two most prominent views of the clause, one focuses on narrow historical practice and the other on the abstract requirement of legal generality. This Note argues that both of these approaches miss the mark.

This Note's central claim is that "punishment" under the Bill of Attainder Clause must be understood in terms of the baseline of individual entitlements that the Constitution is designed to protect. The text, history, and structure of the document reveal a privileged place for the substantive rights of "life, liberty, [and] property." (8) The Fifth and Fourteenth Amendments guarantee that no person shall be deprived of these rights without due process of law. (9) The Bill of Attainder Clause guarantees that the legislature cannot circumvent this protection by imposing targeted life, liberty, or property deprivations under the guise of law. Life, liberty, or property deprivations must either be generalized across the population (as are legal prohibitions or taxes), or else applied in specific cases through a trial in accordance with due process. But when a life, liberty, or property deprivation is imposed on specific people or groups, a constitutional problem arises--either under the Due Process Clause (if the executive is the offending branch), or else under the Bill of Attainder Clause (if the offender is the legislature).

The corollary of this view is that no bill of attainder problem arises in the absence of a life, liberty, or property deprivation. The legislature, just as the executive branch, can single people out for special treatment as long as it does not deprive them of life, liberty, or property. Both branches may grant unique subsidies and, once granted, both branches may revoke them. Such revocation by itself is not unconstitutional because it does not inflict the requisite deprivation, as measured against the proper baseline of rights.

The existing scholarship has not adequately explored the connection between the Bill of Attainder Clause and the particular rights of life, liberty, and property protected by the Fifth and Fourteenth Amendments. (10) This connection has broad implications both inside and outside the bill of attainder context. Aside from the high-profile ACORN case, the issue of attainder has also been invoked recently by some who argue that a proposed "bank tax" would be constitutionally impermissible if it singled out large financial institutions. (11) Under current doctrine, a strong response to this argument is that such a measure would not be punitive, but would rather serve the important policy goal of deterring risky investments that threaten system-wide financial instability. A life, liberty, and property reading of the Bill of Attainder Clause could dissolve the thorny issue of punitiveness and refocus attention on the more appropriate question of when a tax can properly be said to single someone out. On a broader level, this Note's focus on life, liberty, and property raises the structural question of why the Constitution emphasizes these particular rights, whether these rights have any determinate content, and what implications this might have for interpreting other constitutional provisions.

Part I of this Note explores two prominent views of punishment under the Bill of Attainder Clause, one of which is too narrow and the other too broad. Part II stakes out a middle ground and advances a view of the Bill of Attainder Clause as part of an overarching constitutional scheme for the protection of life, liberty, and property rights against individualized deprivations without due process. This structural argument is consistent with a broad range of conceptions of the substantive scope of life, liberty, and property. Part III discusses the application of this view of the Bill of Attainder Clause to various precedents and hypotheticals.

1. THE TWO POLES OF PUNISHMENT UNDER THE BILL OF ATTAINDER CLAUSE

   This Part critiques two polar opposite views of punishment under the Bill of Attainder Clause that together comprise the most common and compelling alternatives to the view I advocate. The first is the narrow originalist view advanced by Raoul Berger. He has argued forcefully that the clause should be confined to its narrow common law meaning: at common law, the only punishment inflicted by bills of attainder was a death sentence for treason or felony, accompanied by the corruption of blood (i.e., the inability to pass an inheritance). (12) The second view takes the opposite approach, holding that the clause proscribes any "punitive" enactment that imposes a "deprivation," while insisting that the concept of "deprivation" should not be limited to the denial of vested rights but should rather be broadly defined to include denials of privilege. (13) Other scholarly views have emphasized the clause's resonance with areas of the law ranging from slavery to gay marriage. (14)

   This Note focuses on the element of "punishment" and does not dwell on the question of what entails "singling out" under the Bill of Attainder Clause. In broad outline, the Supreme Court characterizes singling out as the picking out of an individual or group, either by name or some other identifying characteristics. (15) This will suffice for the purposes of this Note, though the argument here is not committed to any particular view of what singling out requires. The question concerning punishment is: what does the Bill of Attainder Clause prohibit the legislature from doing once it has singled someone out?

   In understanding the competing interpretations of the clause, it will be helpful to take a brief tour of the doctrinal history. The Supreme Court itself has invoked the clause to strike down laws only five times, though lower courts have grappled with the issue more frequently. The first trio of Supreme Court cases came in the wake of the Civil War, when the Court struck down three separate state laws that barred former Confederates from serving as priests, (16) from practicing law, (17) and from taking advantage of...