What Is a Bill of Attainder?

Why does the US Constitution ban them?

Preamble to American Constitution
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A bill of attainder – sometimes called an act or writ of attainder or an ex-post facto law – is an act of a government’s legislature that declares a person or group of persons guilty of a crime and prescribing their punishment without the benefit of a trial or judicial hearing. The practical effect of a bill of attainder is to deny accused person’s civil rights and liberties. Article I, Section 9, paragraph 3, of the U.S. Constitution prohibits the enactment of bills of attainder, stating, “No Bill of Attainder or ex-post facto Law will be passed.”

Key Takeaways: Bills of Attainder

  • Bills of attainder, or ex-post-facto laws, are acts of Congress that declare a person or persons guilty of a crime without a trial or judicial hearing.
  • As a part of English Common Law, monarchs often used bills of attainder to deny a person’s right to own property, the right to a title of nobility, or even right to life.
  • Arbitrary British enforcement of bills of attainder on American colonists was a motivation for the Declaration of Independence and the American Revolution.
  • As direct denials of civil rights and liberties, bills of attainder are prohibited by Article I, Section 9 of the U.S. Constitution.
  • The individual U.S. states are similarly prohibited from passing bills of attainder on their citizens by Article I, Section 10 of the U.S. Constitution. 

Origin of Bills of Attainder

Bills of attainder were originally part of English Common Law and were typically used by the monarchy to deny a person’s right to own property, the right to a title of nobility, or even right to life. Records from the English Parliament show that on January 29, 1542, Henry VIII secured bills of attainder that resulted in the executions of a number people holding titles of nobility.

While the English Common Law right of habeas corpus guaranteed fair trials by a jury, a bill of attainder completely bypassed the judicial procedure. Despite their obviously unfair nature, bills of attainder were not banned throughout the United Kingdom until 1870.

US Constitutional Ban of Bills of Attainder

As a feature of English law at the time, bills of attainder were often enforced against residents of the thirteen American colonies. Indeed, outrage over the enforcement of bills attainder in the colonies was one of the motivations for the Declaration of Independence and the American Revolution.

The dissatisfaction of Americans with British attainder laws resulted in their being prohibited in the U.S. Constitution ratified in 1789.

As James Madison wrote on January 25, 1788, in the Federalist Papers Number 44, “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. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”

The Constitution’s ban of the use of bills of attainder by the federal government contained in Article I, Section 9 was considered so important by the Founding Fathers, that a provision banning state law bills of attainder was included in the first clause of ​Article I, Section 10.

The Constitution’s bans of bills of attainder at both the federal and state level serve two purposes:

  • They enforce the fundamental doctrine of separation of powers by forbidding the legislative branch from performing functions constitutionally delegated to the judicial or executive branch.
  •  They embody the protections of due process of law expressed in the Fifth, Sixth, and Eighth Amendments.

Along with the U.S. Constitution, the constitutions of ever state expressly forbid bills of attainder. For example, Article I, Section 12 of the constitution of the State of Wisconsin reads, “No bill of attainder, ex-post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.”

Sources and Further Reference

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Longley, Robert. "What Is a Bill of Attainder?" ThoughtCo, Aug. 26, 2020, thoughtco.com/what-is-a-bill-of-attainder-3322386. Longley, Robert. (2020, August 26). What Is a Bill of Attainder? Retrieved from https://www.thoughtco.com/what-is-a-bill-of-attainder-3322386 Longley, Robert. "What Is a Bill of Attainder?" ThoughtCo. https://www.thoughtco.com/what-is-a-bill-of-attainder-3322386 (accessed October 18, 2021).

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