Bill of Attainder

Author:Dennis J. Mahoney

Page 174

In American constitutional law, a bill of attainder is any legislative act that inflicts punishment on designated individuals without a judicial trial. The term includes both the original English bill of attainder, which condemned a person to death for treason or felony and confiscated his property, and the bill of pains and penalties, used for lesser offenses and punishments. The first bill of attainder was passed by Parliament in 1459. They were common during the Tudor and Stuart reigns, and Cromwell's and William and Mary's parliaments also resorted to them. During the Revolutionary period, several state legislatures used bills of attainder to condemn Tories and to confiscate their property. THOMAS JEFFERSON in 1778 drafted, and the Virginia legislature passed, a bill of attainder against Josiah Philips, a notorious Tory brigand. The abuse of the procedure in English and American history foreshadowed the possibility of even greater abuse in the future. The bill of attainder, with its disregard of DUE PROCESS OF LAW, could be a potent weapon for the vengeful and covetous.

At the CONSTITUTIONAL CONVENTION OF 1787, ELBRIDGE GERRY, proposed a prohibition against bills of attainder. The measure passed unanimously; it appears in Article I, section 9, as a limitation on Congress, and in Article I, section 10, as a limitation on the states. That the prohibition was meant to extend to all legislative punishments may be seen from a congressional debate in 1794. When Federalist Representative THOMAS FITZSIMONS introduced a resolution to censure the Jeffersonian Democratic Societies and to accuse them of fomenting the WHISKEY REBELLION, JAMES MADISON, denounced it as a bill of attainder.

The Supreme Court first spoke to the question in the TEST OATH CASES (1867). The Court held unconstitutional both a Missouri requirement that practitioners of certain professions swear that they had not aided the Confederate cause and a federal requirement that lawyers take such an oath to practice before federal courts. Since former rebels could not take the oaths, they were effectively deprived of their livelihoods. The Missouri legislature and the Congress had therefore passed bills imposing punishment on the ex-Confederates without judicial trial or conviction of any crime.

No other federal law was held to violate the ban on bills of attainder until UNITED STATES V. LOVETT (1946). In that case the Court held unconstitutional a rider...

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