Nonattainder as a Liberty Interest
67 Pages Posted: 7 Apr 2010 Last revised: 17 Jan 2011
Date Written: April 5, 2010
Existing constitutional doctrine does not deal well with government blacklists, such as the highly publicized federal No Fly List. Prior blacklisting cases have been inconsistent in approach and result. The most commonly used theories ask whether blacklists impose a deprivation of liberty without due process, but there is no consensus as to what kind of liberty is at stake. The problem arises in part from an unduly constricted conception of liberty as protecting the things that people want to do (call them privileges), without considering that it also implicates ways that people do not want to be treated (call them immunities).
This Article proposes that the constitutional immunity from bills of attainder - that is, the rule against singling out persons for punishment without trial - should be recognized as a due process liberty interest. This proposal has two major benefits. First, it provides a legal remedy currently unavailable to persons on government blacklists. Second, it offers coherence across lines of cases that have not previously been considered together. In particular, the proposal rationalizes the much criticized “stigma-plus” doctrine, which is best understood as a false start toward the protection of nonattainder as a liberty interest.
Keywords: Blacklist, Black List, Watchlist, Watch List, Privileges and Immunities, Stigma-Plus, Constantineau, Paul v. Davis, Chicago v. Morales, Morales, Soap and Soda, Bill of Attainder
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