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ArtI.S9.C3.1 Historical Background on Bills of Attainder

Article 1, Section 9, Clause 3

No Bill of Attainder or ex post facto Law shall be passed.

A bill of attainder is legislation that imposes punishment on a specific person or group of people without a judicial trial.1 The term has its roots in English law before the Founding. As the Supreme Court has explained:

The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.2

A related sanction, known as a “bill of pains and penalties,” historically referred to legislation imposing extrajudicial punishments less severe than death, such as banishment or deprivation of political rights.3 Bills of attainder and bills of pains and penalties were legal in England at the time of the Founding, and state legislatures in the United States also enacted bills of attainder and bills of pains and penalties during the Revolution.4 However, two separate clauses of the Constitution, Article I, Sections 9 and 10, respectively banned enactment of bills of attainder by the Federal Government and the states.5

The Framers adopted the constitutional prohibitions on bills of attainder unanimously and without debate.6 However, sources from around the time of the Founding outline key concerns underlying the Bill of Attainder Clauses. In the Federalist No. 44, James Madison noted that many states had enacted constitutional provisions banning bills of attainder.7 Observing that bills of attainder “are contrary to the first principles of the social compact, and to every principle of sound legislation,” he opined that it was appropriate for the Framers also to ban the practice in the federal constitution, “add[ing] this constitutional bulwark in favor of personal security and private rights.” 8 Joseph Story’s Commentaries explained that bills of attainder undermine both separation of powers and the individual right to a judicial trial.9

See, e.g., Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977). In construing an analogous constitutional provision prohibiting the States from enacting bills of attainder, U.S. Const. art. I § 10 cl. 1, the Supreme Court has held that the clause “is directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts.” Frank v. Magnum, 237 U.S. 309, 344 (1915). Accord Ross v. Oregon, 227 U.S. 150, 161 (1913). back
United States v. Brown, 381 U.S. 437, 441 (1965). A bill of attainder also resulted in forfeiture of the target’s property, including the right of the person’s heirs to inherit it. Id. ( “In addition to the death sentence, attainder generally carried with it a ‘corruption of blood,’ which meant that the attainted party’s heirs could not inherit his property.” ). back
Id. at 441–42. back
Id. at 442. As one notable example, in 1778, Thomas Jefferson drafted, and the Virginia House of Delegates enacted, a bill of attainder targeting a man accused of offenses including treason, murder, and arson. 2 The Papers of Thomas Jefferson 189 (J. Boyd ed., 2018). back
For the prohibition on state bills of attainder, see U.S. Const. art. I, § 10, cl. 1. See also ArtI.S10.C1.4 State Bills of Attainder. The Supreme Court appears to have interpreted the federal and state prohibitions as having the same scope. See, e.g., Ex parte Garland, 71 U.S. 333, 377–78 (1866) ( “In [Cummings v. Missouri, 71 U.S. 277 (1866)] we have had occasion to consider [the state Bill of Attainder Clause] . . . A like prohibition is contained in the Constitution against enactments of this kind by Congress; and the argument presented in that case against certain clauses of the constitution of Missouri is equally applicable to the act of Congress under consideration in this case.” ); Nixon, 433 U.S. at 468–76 (citing Cummings in case applying federal Bill of Attainder Clause). back
Brown, 381 U.S. at 441. back
The Federalist No. 44 (James Madison). back
Id. back
3 Joseph Story, Commentaries on the Constitution of the United States § 1338 (1833) (In bill of attainder cases, “the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.” ). back