The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens

Abstract

The article explains why the targeted killing of American citizens is unconstitutional under the Bill of Attainder Clause, which prohibits not only legislative acts marking out citizens for death but also executive death warrants. Understanding the meaning of the Bill of Attainder Clause requires a return to the context of the Framing, since no lethal bill of attainder -- until 2010 -- had been passed in the nation's history. Careful analysis of English constitutional history demonstrates that executive attainder was anathema to the Framers. The Founding Fathers' connection to a constitutional tradition hostile to executive emergency powers illustrates that the Bill of Attainder Clause bars both executive and legislative attainder, and accordingly that the killing of American citizens in Yemen breaks with a seven hundred year-old constitutional norm.

Keywords: Targeted Killing, Al-Awlaki, Attainder, Constitutionalism, Rule of Law, Bill of Rights, Treason, Due Process

JEL Classification: K33, K42