Bill of Attainder

A bill of attainder imposes punishment on specific individuals or members of a group through an act taken by the legislature rather than a judicial trial. The U.S. Constitution prohibits bills of attainder enacted by both Congress (Art. I § 9, clause 3) and by the states (Art. I § 10). These legislative statements of guilt were used by the British parliament to punish subversive acts such as treason by sentencing alleged traitors to death. The founders believed that these acts were abused in England, as later described by Thomas Jefferson as ‘‘instruments of vengeance by a successful over a defeated party.’’ In framing the Constitution, the founders put their faith instead in the trial by jury in order to protect the rights of the accused against the power of the state. Bills of attainder relate closely to the heralded principle of separation of powers in the Constitution, where it is the power of the legislative branch to enact laws of general applicability, while the judiciary is to independently decide how that law should be applied in a given set of factual circumstances. During the American Revolution, the legislatures of numerous states enacted bills of attainder or bills of pains and penalties (effectively the same, but with a lower level of punishment) against persons disloyal to the Revolution. Bills of attainder were therefore prohibited in order to ensure fairness in the process of adjudicating disputes via the judicial branch, essentially safeguarding against their tyrannical use in the future as had occurred in England. The founders believed that trial by jury, not legislature, would better protect civil liberties from the whims, whether well founded or not, of the democratically elected majority.

JAMES F. VAN ORDEN

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