Prohibiting Bills of Attainder

Instructor: Ashley Dugger

Ashley is an attorney. She has taught and written various introductory law courses.

Our United States Constitution prohibits bills of attainder in Article I. A bill of attainder is a particular kind of legislative act. This lesson explains bills of attainder.

Article I, Section 9, Clause 3

'We, the people of the United States, in order to form a more perfect Union….' Sound familiar? This is the Preamble of our United States Constitution. The Preamble tells us why the framers wrote the Constitution. The framers had very specific goals. One of those goals was to prevent the federal government from exercising too much power over the people. That's why many constitutional provisions explain what the government is prohibited from doing, rather than setting out what the government should do.

The Constitution's Article I, Section 9, Clause 3 is just one example. This section states that 'No Bill of Attainder or ex post facto Law shall be passed.' The framers placed these particular prohibitions at the beginning of the Constitution in Article I. They must have felt they were important!

The 'Father of the Constitution,' James Madison, wrote in The Federalist papers that 'Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.' Those are strong words, but what do they mean?

The first principle of the social compact is a social theory. The compact refers to an agreement between the government and the people. The principle acknowledges that the people created the government. It obtains its powers from the people, who agree to be governed. Therefore, the people must agree to their laws - the government cannot simply dictate the rules. Bills of attainder serve as dictated rules, or commands. There's no fair exchange, or agreement, between the people and the government.

Let's take a closer look at bills of attainder so you can see why this is.

Bills of Attainder

A bill of attainder is a legislative act that declares someone guilty of a crime and assesses a punishment without providing a trial to prove the crime. The prohibition applies to individual people and to groups. In other words, Congress cannot declare Bob guilty, nor can they declare everyone named 'Bob' guilty, without providing an opportunity for a trial.

Bills of attainder were common in England and one of the reasons the colonists sought independence. In England, the legislature instituted new laws at will, as they deemed it necessary. Many people thought the laws were instituted hastily and often as a response to groundless fears.

Under the U.S. Constitution, the framers purposely designed our system so that governmental powers are shared between three branches of government: legislative, judicial and executive. This system is known as a separation of powers. The legislative branch is responsible for making the laws. However, only the judicial branch is permitted to apply the rules. The judicial branch determines whether or not someone has violated a law and assesses an appropriate punishment. Generally speaking, the bill of attainder prohibition is meant to prevent 'trial by legislature.'

Bill of Attainder Example

For example, let's take a quick look at United States v. Brown. In this 1965 Supreme Court case, Mr. Brown was convicted of violating Section 504 of the Labor-Management Reporting Act of 1959. This section made it a crime for any member of the Communist Party to serve as an officer or employee of a labor union.

Mr. Brown was a dockworker in San Francisco for more than twenty-five years. He was also an open Communist. He was elected to the executive board of his labor union and served from 1959 through 1961 before he was charged with this crime. He was not charged with advocating any sort of illegal activity by the union, and no evidence was presented to that effect. The Court, therefore, struck down Section 504 as a bill of attainder.

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