BILLS OF ATTAINDERBILLS OF ATTAINDERBILLS OF ATTAINDERBILLS OF ATTAINDERBILLS OF ATTAINDER
I. SOURCES
U.S. Const., Article I, § 9., “No Bill of Attainder or
ex post facto Law shall be passed.” U.S. Const., Article I,
§ 10, “No State shall... pass any Bill of Attainder, ex post
facto Law ....” N.J. Const. of 1947, Art. IV, § VII, ¶ 3,
“The Legislature shall not pass any bill of attainder ....”
II. DEFINITION
A Bill of Attainder has been defined as “a law that
legislatively determines guilt and inflicts punishment
upon an identifiable individual without provision of the
protections of a judicial trial.” Selective Service Systems v.
Minnesota Public Interest Research Group, 468 U.S. 841
(1984).
III. HISTORY
A bill of attainder technically refers to a special act of
the Legislature which attainted a named individual of a
felony or high treason without benefit of a trial and
imposed the sentence of capital punishment. A bill
imposing a penalty less that capital punishment without
a trial was called a bill of pains and penalties. The term
as used in the U.S. Constitution includes the lesser bills
of pains and penalties. Fletcher v. Peck, 6 Franch 87, 138
L.Ed. 162 (1810). Cummings v. Missouri, 4 Wall 377, 18
L.Ed. 356 (1867); Nixon v. Administrator of General
Services, 433 U.S. 425 (1977).
The concept of a bill of attainder was further
expanded to include laws which punished an identifiable
class of persons without benefit of a trial, and not merely
an identifiable individual. Cummings v. Missouri, 4 Wall
277, 18 L.Ed. 356 (1867); United States v. Brown, 381
U.S. 437 (1965).
Bills of attainder were common in the 16th, 17th and
18 th centuries as a means by which the English
Parliament dealt with those who threatened or attempted
to overthrow the government. During the American
Revolution, the legislatures of all thirteen colonies passed
bills of attainder against Torries. United States v. Brown,
supra. The prohibition against bills of attainder in the
U.S. Constitution was an attempt on the part of the
framers to curb potential abuses of legislative power as
was the prohibition against ex post facto laws. United States
v. Brown, supra.
IV. EXAMPLES
A. Laws Struck as Bills of Attainder
Cummings v. Missouri, A. Wall. 277, 18 L.Ed. 356
(1867). An 1865 amendment to the Missouri
Constitution required all clergy to swear to a test oath
that deponent did not support the confederacy in the
Civil War and promising continued loyalty to the Union
and Missouri. The plaintiff, a Catholic priest, refused to
take the oath. Held: the oath was a bill of attainder
because it disqualified the individual from office as a
punishment.Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867).
An 1865 Act of the United States Congress prescribed a
test oath that deponent had never voluntarily borne arms
against the United States as a qualification for the
admission of an attorney to practice before the United
States Supreme Court. Petitioner, who had been
admitted to practice before the Supreme Court in 1860
by fulfilling all of the requirements then required,
subsequently became a representative and senator from
Arkansas in the Confederate Congress. Petitioner
received a pardon from the President of the United States
but was excluded from practice before the Supreme
Court. Held: exclusion from a profession for past conduct
is a punishment: therefore, the act of Congress was a bill
of attainder.United States v. Lovett, 328 U.S. 303 (1946). The
respondents Lovett, Watson and Dodd were employees
of the federal government when the United States
Congress passed a law which denied the respondents, by
name, any compensation from the government, except
for jury duty or service in the armed forces, unless they
were reappointed by the President and approved by the
Senate. Held: the law was a bill of attainder because it
legislatively imposed a punishment without benefit of a
trial.United States v. Brown, 381 U.S. 437 (1965). The
United States Congress passed a law, § 504 of the Labor-
Management Reporting and Disclosure Act of 1959,
making it a crime for a member of the Communist party
to serve as an officer or employee of a labor union.
Respondent, an avowed Communist and member of the
Executive Board of the Longshoreman’s Union was
indicted, tried and convicted under § 504. Held: § 504
was a bill of attainder because it automatically punished
a person for membership in the Communists party alone,