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Bill Of Attainder
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Separation of Powers, Bill of Attainder, Corruption of Blood related.
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*(a) The Bill of Attainder Clause, Art. I, § 9, cl. 3, was intended to implement the separation of powers among the three branches of the Government by guarding against the legislative exercise of judicial power.* Pp. 441-446.
*(b) The Bill of Attainder Clause is to be liberally construed in the light of its purpose to prevent legislative punishment of designated persons or groups.* Cummins v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; United States v. Lovett, 328 U.S. 303.* Pp. 447-449.
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Art. I, § 10.* A logical starting place for an inquiry into the meaning of the prohibition is its historical background.* The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.* In addition to the death sentence, attainder generally carried with it a "corruption of blood," which meant that the attainted party's heirs could not inherit his property.* The "bill of pains and penalties" was identical to the bill of attainder, except that it prescribed a penalty short of death, e.g., banishment, deprivation of the right to*vote, or exclusion of the designated party's sons from Parliament.* Most bills of attainder and bills of pains and penalties named the parties to whom they were to apply; a few, however, simply described them.* While some left the designated parties a way of escaping the penalty, others did not.* The use of bills of attainder and bills of pains and penalties was not limited to England.* During the American Revolution, the legislatures of all thirteen States passed statutes directed against the Tories; among these statutes were a large number of bills of attainder and bills of pains and penalties.**
*** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** United States v Brown, 381 U.S. 437, 442*(1965)
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The Framers "expressed" this principle, both in "specific provisions, such as the Bill of Attainder Clause," and in the Constitution's "general allocation of power."* Ibid.; see United States v. Brown, 381 U.S. 437, 442 (1965) (Bill of Attainder Clause intended to implement the separation of powers, acting as "a general safeguard against legislative exercise of the judicial function"); Fletcher v. Peck, 6 Cranch 87, 136 (1810) (Marshall, C.J.) ("It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments"); cf. Hurtado v. California, 110 U.S. 516, 535-536 (1884).*
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Cf. Brown, supra at 461 ("Congress must accomplish [its desired] results by rules of general applicability.* It cannot specify the people upon whom the sanction it prescribes is to be levied").**
*** *** *** *** *** *** *** *** *** *** *** *** *** *** *Plaut v Spendthrift Farm, Inc., 514 U.S. 211,*241 (1995).
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*At common law, bills of attainder often imposed the death penalty; lesser punishments were imposed by bills of pains and penalties.* The Constitution proscribes these lesser penalties as well as those imposing death.* Cummings v. Missouri, 4 Wall. at 323.* Historically used in England in times of rebellion or "violent political excitements," ibid., bills of pains and penalties commonly imposed imprisonment, banishment, and the punitive confiscation of property.* Nixon, supra, at 474.* In our own country, the list of punishments forbidden by the Bill of Attainder Clause has expanded to include legislative bars to participation by individuals or groups in specific employments or professions.*
*** *** *** *** *** *** *** *** *** *** *** *** *** Selective Service Sys. v MPIRG, 486 U.S. 841, 852*(1984)
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*In England, a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death.* Article I, § 9, however, also proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution.* United States v. Lovett, supra at 323-324 (Frankfurter, J., concurring); Cummings v. Missouri, supra at 323; Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 97 (156).* Generally addressed to persons considered disloyal to the Crown or State, "pains and penalties" historically consisted of a wide array of punishments:* commonly included were imprisonment, banishment, and the punitive confiscation of property by the sovereign.* Our country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments:* a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal.* See, e.g., Cummings v. Missouri, supra, (barring* clergymen from ministry in the absence of subscribing to a loyalty oath); United States v. Lovett, supra, (barring named individuals from Government employment); United States v. Brown, supra, (barring Communist Party members from offices in labor unions).
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Although the prohibition against bills of attainder has been addressed only infrequently by this Court, it is now settled beyond dispute that a bill of attainder, within the meaning of Art. I, is by no means the same as a bill of attainder at common law.* The definition departed from the common law concept very early in our history, in a most fundamental way.* At common law, the bill was a death sentence imposed by legislative Act.* Anything less than death was not a bill of attainder, but was, rather, "a bill of pains and penalties."* This restrictive definition was recognized tangentially in Marbury v. Madison, 1 Cranch 137, 179 (1803), but the Court soon thereafter rejected conclusively any notion that only a legislative death sentence or even incarceration imposed on named individuals fell within the prohibition.* Mr. Chief Justice Marshall firmly settled the matter in 1810, holding that legislative punishment in the form of a deprivation of property was prohibited by the Bill of Attainder Clause:
Nixon v Administrator of General Services, 433 U.S. 425,*473
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