No Bill of Attainder ... shall be passed.[1]
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. 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 compact, 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. Professor Raoul Berger
argues that the bill of attainder clauses (see also Article I,
Section 10, Clause 1) 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 Marshall, 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."[2]
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 Marbury 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 forbade the Congress from
"exercis[ing] the power and office of judge."[3] 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."
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 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 devised a three-part test to determine when a piece of
legislation violates the Bill of Attainder Clause: Such legislation
specifies the affected persons (even if not done in terms within
the statute), includes punishment, and 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,[4] nor
did an act requisitioning the recordings and material of President
Richard M. Nixon and several of his aides constitute punishment.[5]
Exclusion from employment, however, is a form of punishment.[6]
