Eleanor Finch
The Bill of Attainder is a parliamentary act that sentences one or more specific persons to death, often used in England during the 16th, 17th, and 18th centuries to deal with those threatening the government. Due to the potential for abuse and violation of legal principles, including the right to due process, these bills fell out of favour. The last use of attainder was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion. The United States Constitution of 1789 prohibits bills of attainder, reinforcing the idea that the government cannot punish someone without due process. Article I, Section 9, Clause 3 states that no Bill of Attainder or ex post facto Law shall be passed. This clause has been applied by the Supreme Court to prevent legislatures from circumventing courts and punishing people without a trial.
| Characteristics | Values |
|---|---|
| What is a bill of attainder? | A bill of attainder is a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. |
| Where is it in the US Constitution? | Article I, Section 9, Clause 3 states that "no Bill of Attainder or ex post facto Law shall be passed." |
| What does it mean in the Constitution? | The bill of attainder clause prohibits laws that label "a person or group as a wrongdoer and takes their property, liberty, or both without due process." |
| What is the history of the bill of attainder? | Bills of attainder were legal in England at the time of the Founding and were used in the US during the Revolution. However, they were banned by the US Constitution in 1789 due to the potential for abuse and the violation of legal principles. |
| How has the Supreme Court interpreted it? | The Supreme Court has applied the bill of attainder clause to prevent legislatures from circumventing the courts by punishing people without due process of law. The Court has invalidated laws under the Attainder Clause on five occasions. |
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What You'll Learn
Bills of Attainder in the US Constitution
Bills of Attainder, a concept dating back to 16th-century England, are prohibited by the US Constitution. This prohibition is enshrined in Article I, Section 9, Clause 3, which states that "no Bill of Attainder or ex post facto Law shall be passed." The Constitution also bans Congress and state governments from enacting such bills.
A Bill of Attainder is a law that legislatively determines guilt and inflicts punishment on a specific individual or group without a judicial trial. This could include the death sentence, forfeiture of property, or both. The last use of a Bill of Attainder in the UK was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion. American dissatisfaction with these laws, due to their violation of the right to due process, led to their prohibition in the US Constitution in 1789.
The Supreme Court has applied the Bill of Attainder Clause to prevent legislatures from circumventing the courts and punishing people without due process of law. This was seen in the Reconstruction-era cases of Ex parte Garland and Cummings v. Missouri, where those in certain professions were required to swear an oath of loyalty to the United States. The Court has also emphasised that legislation does not violate the Bill of Attainder Clause simply because it places legal burdens on specific individuals or groups.
The modern understanding of the Bill of Attainder Clause is that it prohibits laws that label a person or group as wrongdoers and deprive them of property, liberty, or both, without due process. This interpretation reinforces the idea that the government cannot punish someone without a fair trial, preserving the separation of powers and protecting against legislative overreach.
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Bills of Attainder in the Australian Constitution
A bill of attainder is an act of a legislature declaring a person or group of people guilty of a crime and imposing a punishment, often without a trial. While bills of attainder were used in England throughout the 18th century and were applied to British colonies, American dissatisfaction with these laws resulted in their prohibition in the US Constitution. The US Constitution forbids legislative bills of attainder in federal law under Article I, Section 9, Clause 3, which states, "No Bill of Attainder or ex post facto Law shall be passed."
In Australia, the High Court has ruled that bills of attainder are unconstitutional as they violate the separation of powers doctrine. This means that only a Chapter III court, or a body exercising power derived from the chapter of the Constitution providing for judicial power, can wield judicial power. While there is no explicit provision in the Australian Constitution permitting the Commonwealth Parliament to pass bills of attainder, some consider them permissible due to the lack of an entrenched separation of powers at the state level. However, section 77 of the Constitution of Australia allows state courts to be invested with Commonwealth jurisdiction, and any state law that prevents a state court from functioning as a Chapter III court is deemed unconstitutional.
The concept of bills of attainder is closely related to ex post facto laws, which are also prohibited by the US Constitution. While both types of laws are intended to protect against legislative overreach and preserve the separation of powers, they are legally distinct. Ex post facto laws refer specifically to laws that retroactively create a crime where none existed before.
The prohibition against bills of attainder reinforces the idea that the government cannot punish someone without due process, typically in the form of a trial. Supreme Court cases in the US have interpreted this prohibition broadly, banning not only legislation imposing a death sentence but also other forms of punishment inflicted on specific persons without a trial. This interpretation has been applied in cases such as Nixon v. Administrator of General Services, where the Court held that a statute constitutes a bill of attainder if it is specific and imposes punishment without trial.
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The Bill of Attainder Clause
A bill of attainder is a legislative act that inflicts punishment on specific persons or groups without a judicial trial. The Supreme Court has interpreted this broadly to include not only the imposition of the death sentence but also other forms of punishment, such as the confiscation of property. The Court has emphasised that legislation does not violate the Bill of Attainder Clause simply because it places legal burdens on specific individuals or groups. Instead, the clause applies when a law identifies and punishes specific persons or groups without a trial.
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Supreme Court Cases on Bills of Attainder
The Supreme Court has invalidated laws under the Attainder Clause on five occasions. Two of the Supreme Court's first decisions on the meaning of the bill of attainder clause came after the American Civil War.
In Ex parte Garland, 71 U.S. 333 (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, 71 U.S. 277 (1866), the Missouri Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. If the people in those professions did not take the oath, the law prevented them from working in those professions. One of the specified professions was priests. A priest refused to take the oath, and the Supreme Court reviewed the conviction and held that the amendment constituted a bill of attainder.
In 1946, the Supreme Court struck down an appropriations bill cutting off the pay of certain named federal employees accused of being subversives. The Court explained that the challenged legislation effectively declared specific persons guilty of the crime of subversive activities without the safeguards of a judicial trial.
In the 1977 case Nixon v. Administrator of General Services, former President Richard M. Nixon challenged provisions of a federal statute that directed the Administrator of General Services to take custody of and preserve his presidential papers and tape recordings. The Court held that a statute constitutes a bill of attainder only if it both applies with specificity and imposes punishment without trial. The Court ruled against Nixon, arguing that, in certain circumstances, the Court can make a law that applies to a single person.
In United States v. Brown, 381 U.S. 437 (1965), the Court invalidated the section of the statute that criminalized a former communist serving on a union's executive board. The Act focused on past behaviour and specified a particular class of people to be punished.
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Historical Background on Bills of Attainder
Bills of attainder were used throughout the 18th century in England and were also applied to British colonies. In English common law, bills of attainder referred to laws that imposed the death penalty on specific people. A related sanction, known as a "bill of pains and penalties", referred to legislation imposing extrajudicial punishments less severe than death, such as banishment or deprivation of political rights.
In the Westminster system, a similar concept is covered by the term "private bill", which is a proposal for legislation applying to a specific person. It is only considered a bill of attainder if it punishes them. Private bills have been used in some Commonwealth countries to effect divorce, charter corporations, grant monopolies, approve public infrastructure, and seize property.
In the United States, state legislatures enacted bills of attainder and bills of pains and penalties during the Revolution. For example, in 1778, Thomas Jefferson drafted, and the Virginia House of Delegates enacted, a bill of attainder targeting a man accused of treason, murder, and arson. In 1779, the state of New York used a bill of attainder to confiscate the property of British loyalists as a penalty for their political sympathies and to fund the rebellion.
The United States Constitution, ratified in 1787, forbids legislative bills of attainder in federal law under Article I, Section 9, Clause 3, and in state law under Article I, Section 10. These clauses serve two purposes: to prevent legislative overreach and to preserve the Constitution's separation of powers. James Madison observed that bills of attainder are contrary to the principles of sound legislation and personal security, and thus supported their prohibition in the Constitution. Joseph Story's Commentaries explained that bills of attainder undermine the separation of powers and the individual right to a judicial trial, as the legislature assumes a judicial role and determines guilt without the common forms and guards of a trial.
The Supreme Court has invalidated laws under the Attainder Clause on five occasions. One notable case is Nixon v. Administrator of General Services (1977), where the Court upheld the Presidential Recordings and Materials Preservation Act, which required the confiscation and release of former President Richard Nixon's papers to prevent their destruction. The Court argued that specificity alone did not invalidate the act because the President constituted a "class of one". The Court modified its punishment test, concluding that only laws that historically offended the bill of attainder clause were invalid.
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Frequently asked questions
A bill of attainder is a law that legislatively determines guilt and inflicts punishment upon an identifiable individual or group without provision of the protections of a judicial trial.
Bills of attainder are prohibited because they undermine the separation of powers and the individual right to a judicial trial.
The Bill of Attainder Clause is a clause in the US Constitution that prohibits Congress from issuing "bills of attainder".
While similar, bills of attainder and ex post facto laws are legally distinct. Ex post facto laws are laws that retroactively create a crime where none existed before.
