Bill of Attainder

The Heritage Guide to the Constitution

Bill of Attainder

Article I, Section 9, Clause 3

No Bill of Attainder...shall be passed.

The Constitution prohibits both the federal government (in this clause) and the states (in Article I, Section 10, Clause 1) from passing either bills of attainder or ex post facto laws. The Framers considered freedom from bills of attainder and ex post facto laws so important that these are the only two individual liberties that the original Constitution protects from both federal and state intrusion. In Philadelphia, the Constitutional Convention approved both provisions without debate. As James Madison said in The Federalist No. 44, “Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social com-pact and to every principle of sound legislation.”

In common law, bills of attainder were legislative acts that, without trial, condemned specifically designated persons or groups to death. Bills of attainder also required the “corruption of blood”; that is, they denied to the condemned’s heirs the right to inherit his estate. Bills of pains and penalties, in contrast, singled out designated persons or groups for punishment less than death, such as banishment or disenfranchisement. Many states had enacted both kinds of statutes after the Revolution.

The Framers forbade bills of attainder as part of their strategy of undoing the English law of treason, and to contend with what they regarded as the most serious historical instances of legislative tyranny by state or national legislatures. Raoul Berger argues that the bill of attainder clauses protect only against legislative actions that affect the life of the individual, not his property, which was the province of bills of pains and penalties. Beginning with Chief Justice John Mar-shall, however, the Supreme Court has insisted that “a Bill of Attainder may affect the life of an individual, or may confiscate his property, or may do both,” Fletcher v. Peck (1810), and that “[t]he term ‘bill of attainder’ in the National Constitution is generical, and embraces bills of both classes,” Drehman v. Stifle (1869).

Marshall and his successors saw the Bill of Attainder Clause as an element of the separation of powers. As the decisions of the Court in Mar-bury v. Madison (1803) and United States v. Klein (1871) made clear, only a court can hold a trial, evaluate the evidence, and determine the merits of the claim or accusation. The Constitution for-bade Congress from “exercis[ing] the power and office of judge.” Cummings v. Missouri (1867). In United States v. Brown (1965), the Court specifically rejected a “narrow historical approach” to the clauses and characterized the Framers’ purpose as to prohibit “legislative punishment, of any form or severity, of specifically designated persons or groups.” In Ex parte Garland (1867), for example, the Supreme Court struck down under the Attainder Clause a congressional statute directed against former Confederates that barred persons from practicing law before United States courts who had, among other things, merely given “encouragement” to rebels.

Bills of attainder can also operate conditionally, that is, the punishment may not only be for past acts, but it also may be triggered whenever the person engages in any future prohibited acts. Test oaths can be a type of attainder, and exclusion from employment can be a form of punishment. A Missouri test oath required one to affirm, among other things, that one had never indicated “disaffection to the government of the United States in its contest with the Rebellion.” Those who failed to take the oath were prohibited from practicing the otherwise lawful occupation of clergyman. The Court found to oath to be a bill of attainder. Cummings v. Missouri (1867). In other instances, however, the Court has found a test oath “merely provides standards of qualification and eligibility for employment.” Garner v. Board of Public Works of City of Los Angeles (1951).

After World War II, the Supreme Court dealt with laws limiting the activities of members of the Communist Party. The Court struck as violative of the Bill of Attainder Clause an appropriation act that barred payment of salaries to certain named individuals who were thought to be subversive. United States v. Lovett (1946). In Communist Party of the United States v. Subversive Activities Control Board (1961), a divided Court upheld the application of the Subversive Activities Control Act of 1950, which required the Communist Party and its officers to register with the Attorney General. The Court stated that the law did not restrict a class of individuals. Rather, it only regulated “designated activities.” But in United States v. Brown, the Court invalidated a law that prohibited Communist Party members from serving as leaders of labor organizations.

Nonetheless, even with an expansive definition, the Bill of Attainder Clause provides only limited protection against retroactive civil legislation. The modern Court rarely invokes the clause’s protection; it has not invalidated legislation on bill-of-attainder grounds since Brown in 1965. Moreover, the only laws that the Court has invalidated as bills of attainder have been bars on the employment of specific individuals or groups of individuals.

The Court has devised a three-part test to determine when a piece of legislation violates the Bill of Attainder Clause: (1) such legislation specifies the affected persons (even if not done in terms within the statute), (2) includes punishment, and (3) lacks a judicial trial. Because of the Court’s relatively narrow definition of punishment, however, it rarely, if ever, invalidates legislation on this basis. For example, the Court has held that the denial of noncontractual government benefits such as financial aid was not punishment, Selective Service System v. Minnesota Public Interest Research Group (1984), nor did an act requisitioning the recordings and material of President Richard M. Nixon and several of his aides constitute punishment. Nixon v. Administrator of General Services (1977).

Daniel Troy

Senior Vice President & General Counsel, GlaxoSmithKline

Raoul Berger, Bills of Attainder: A Study of Amendment by the Court, 63 Cornell L. Rev. 355 (1978)

Andrew Kim, Falling from the Legislative Grace: The ACORN Defunding and the Proposed Restraint of Congress’ Appropriations Power through the Bill of Attainder Clause, 60 AM. U. L. REV. 643 (2011)

Daniel E. Troy, Retroactive Legislation (1998)

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)

Ex parte Garland 71 U.S. (4 Wall.) 333 (1867)

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867)

Drehman v. Stifle, 75 U.S. 595 (1869)

United States v. Klein, 80 U.S. (13 Wall.) 128 (1871

United States v. Lovett, 328 U.S. 303 (1946)

Garner v. Bd. of Public Works of City of Los Angeles, 341 U.S. 716 (1951)

Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1 (1961)

United States v. Brown, 381 U.S. 437 (1965)

Nixon v. Administrator of General Services, 433 U.S. 425 (1977)

Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984)