Jonah Patel
The U.S. Constitution prohibits bills of attainder, which are legislative acts that inflict punishment on specific individuals or groups without a judicial trial. Article I, Section 9, Clause 3 of the Constitution states that no Bill of Attainder or ex post facto Law shall be passed. The Supreme Court has interpreted this clause broadly to ban not only death sentences but also other forms of punishment imposed without a trial. The Court has invalidated laws under the Attainder Clause on several occasions, including in Ex parte Garland (1866) and Cummings v. Missouri (1867). The Bill of Attainder Clause reinforces the separation of powers and the right to due process in the American justice system.
| Characteristics | Values |
|---|---|
| Court cases | Ex parte Garland, Cummings v. Missouri, Nixon v. Administrator of General Services, United States v. Lovett, United States v. Brown, Fletcher v. Peck, Frank v. Magnum, Ross v. Oregon, United States v. Robel |
| Court decisions | The Supreme Court has invalidated laws under the Attainder Clause on five occasions |
| Court definition | A bill of attainder is "a legislative act which inflicts punishment without a judicial trial" |
| Constitution | The Constitution of the United States prohibits Congress from issuing "bills of attainder" |
| Constitution of Australia | Contains no specific provision permitting the Commonwealth Parliament to pass bills of attainder |
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What You'll Learn
Bills of Attainder are unconstitutional in the US
Bills of Attainder are a type of legislative act that singles out one or more persons and imposes punishment on them without a trial. The US Constitution prohibits Congress from issuing "Bills of Attainder" as it goes against the foundational idea in the American justice system that the government cannot punish someone unless they receive due process.
The US Constitution only permits the judiciary to determine whether someone is guilty or innocent. The Constitution bans Congress and state governments from passing bills of attainder. Article I, Section 9, Clause 3 of the Constitution states that "no Bill of Attainder or ex post facto Law shall be passed." The Ex Post Facto Law refers to laws that retroactively create a crime where none existed before.
The Supreme Court has invalidated laws under the Attainder Clause on several occasions. In Ex parte Garland (1866), the Court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion. In Cummings v. Missouri (1867), the Missouri Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law, arguing that people were being subjected to penalty without judicial trial.
In United States v. Lovett (1946), the Court held that legislative acts that inflict punishment on named individuals or members of a group without a judicial trial are bills of attainder prohibited by the Constitution. In United States v. Brown (1965), the Court held that a federal statute making it a crime for a member of the Communist Party to serve as an officer of a labor union was a bill of attainder.
Bills of Attainder are considered unconstitutional as they undermine the separation of powers and the individual right to a judicial trial. They are seen as a form of legislative overreach and a violation of personal security and private rights.
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The UK hasn't passed a Bill of Attainder since 1820
The UK has not passed a Bill of Attainder since 1820. This type of legislation, which imposes punishment without a judicial trial, has fallen out of favour due to its violation of several legal principles, including the right to due process and the separation of powers. The last use of attainder was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion. While the House of Lords passed the Pains and Penalties Bill 1820, which sought to attaint Queen Caroline, it was not considered by the House of Commons.
Bills of attainder are a form of legislative act that targets specific individuals or groups for punishment without a judicial trial. They are considered contrary to the principles of sound legislation and personal security, as they allow the government to "single out disfavoured persons and mete out summary punishment for past conduct". By bypassing the judicial system, these bills undermine the right to a fair trial and the separation of powers between the legislative and judicial branches of government.
Historically, bills of attainder were used in England and the American colonies during the Revolutionary period. Thomas Jefferson, for example, drafted a bill of attainder in 1778 targeting an individual accused of treason, murder, and arson. However, the use of these bills declined as they were seen as abusive and contrary to legal principles. In the United States, the Constitution prohibits bills of attainder at both the federal and state levels, with the Supreme Court invalidating laws under the Attainder Clause on several occasions.
Similarly, in Australia, the High Court has ruled that federal bills of attainder are unconstitutional due to their violation of the separation of powers doctrine. While state parliaments retain some freedom to pass laws that restrict specific individuals' rights, such as prohibiting parole boards from granting parole to certain prisoners, they cannot enact bills of attainder that directly wield judicial power.
The UK's history with bills of attainder is similar, with the last use of attainder occurring in 1798 and the last bill passed in 1820. Since then, no bills of attainder have been passed in the UK, indicating a shift away from this type of legislation. While attainder remained a legal consequence of convictions until 1870, it is no longer a part of the UK's legal system.
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The Australian Constitution has no Bill of Attainder provision
The Australian Constitution does not contain a specific provision that permits the Commonwealth Parliament to pass bills of attainder. Bills of attainder are considered permissible in Australia because there is no entrenched separation of powers at the state level. However, the High Court of Australia has ruled that federal bills of attainder are unconstitutional, as they violate the separation of powers doctrine. This doctrine dictates that no body other than a Chapter III court can wield judicial power.
The Australian Constitution does, however, provide the Governor-General with several powers, including the ability to dissolve Parliament, refuse assent to bills, and dismiss government ministers. The practical use of these powers is restricted by constitutional convention, which mandates that the Governor-General acts on ministerial advice, except in exceptional circumstances.
The state constitutions in Australia contain few limitations on government power. Section 77 of the Constitution of Australia permits state courts to be invested with Commonwealth jurisdiction. Any state law that prevents a state court from functioning as a Chapter III court is unconstitutional. An important distinction is that laws seeking to direct judicial power are unconstitutional, but laws concerning mandatory sentencing, rules of evidence, non-punitive imprisonment, or tests are constitutional.
In the case of Kable v Director of Public Prosecutions (1996), the New South Parliament passed a law directed at a single individual, similar in nature to a bill of attainder. The law authorised the Supreme Court of New South Wales to make "preventive detention orders" for up to six months, renewable if the individual was deemed likely to commit a serious act of violence. This law would have been deemed invalid if passed by the Federal Parliament, as it would have been considered a legislative judgment, violating the constitutional separation of the judicial system.
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The Texas Constitution omits the Attainder Clause
The Texas Constitution, established in 1876, states that Texas is a "free and independent State, subject only to the Constitution of the United States". It further asserts the inalienable right of the people of Texas to "alter, reform or abolish their government" as they see fit. Notably, the Texas Constitution does omit the Attainder Clause, which is a significant aspect of the United States Constitution.
The Attainder Clause, found in Article I, Section 9, Clause 3 of the US Constitution, prohibits Congress and state governments from passing "Bills of Attainder". These are legislative acts that inflict punishment on specific individuals or groups without a judicial trial. The clause reinforces the principle of due process and the separation of powers, ensuring that only the judiciary can determine guilt or innocence. The US Supreme Court has invalidated laws under this clause on five occasions, demonstrating its importance in safeguarding against legislative overreach.
In contrast, the Texas Constitution does not include the clause that applies to heirs, leaving uncertainty about the constitutionality of laws depriving heirs of their estates. This omission in Texas highlights the unique nature of state constitutions, which can have variations from the US Constitution.
While the Texas Constitution does not explicitly mention the Attainder Clause, it does include a Bill of Rights, which states: "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts shall be made." This section mirrors the US Constitution's ban on ex post facto laws and bills of attainder, indicating that Texas adheres to these fundamental principles despite the absence of a dedicated Attainder Clause.
The omission of the Attainder Clause in the Texas Constitution is an interesting aspect of its legal framework, showcasing the complexities of state-level governance within the broader context of US constitutional law.
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The US Supreme Court has invalidated Attainder Clause laws five times
The US Constitution prohibits Congress from issuing "bills of attainder". Bills of attainder are laws that inflict punishment on specific persons or groups without a trial. The Constitution only permits the judiciary to determine whether someone is guilty or innocent.
In United States v. Lovett (1946), the Court held that legislative acts that inflict punishment on named individuals or groups without a judicial trial are bills of attainder prohibited by the Constitution. In United States v. Brown (1965), the Court held that a federal statute making it a crime for a member of the Communist Party to serve as an officer of a labor union was a bill of attainder.
In Nixon v. Administrator of General Services (1977), the Supreme Court upheld a law requiring the General Services Administration to confiscate former President Richard Nixon's presidential papers to prevent their destruction. The Court modified its punishment test, concluding that only those laws which historically offended the bill of attainder clause were invalid.
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Frequently asked questions
A bill of attainder is a legislative act that singles out one or more persons and imposes punishment on them without a trial.
Article I, Section 9, Clause 3 of the US Constitution states that "no Bill of Attainder or ex post facto Law shall be passed."
The Bill of Attainder Clause is intended to prevent legislative overreach and preserve the separation of powers by prohibiting Congress from issuing bills of attainder.
Yes, the concepts of "bills of pains and penalties" in the United Kingdom and "bills of pains and penalties" in Australia are similar to bills of attainder.
Yes, the US Supreme Court has invalidated laws under the Attainder Clause on several occasions, including Ex parte Garland (1866), Cummings v. Missouri (1867), and United States v. Brown (1965).
