Bills of Attainder
142 Pages Posted: 13 Feb 2015 Last revised: 9 Feb 2016
Date Written: September 1, 2015
What are bills of attainder? The traditional view is that bills of attainder are legislation that punishes an individual without judicial process. The Bill of Attainder Clause in Article I, Section 9 prohibits the Congress from passing such bills. But what about the President? The traditional view would seem to rule out application of the Clause to the President (acting without Congress) and to executive agencies, since neither passes bills.
This Article aims to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of attainder are best understood as a summary form of legal process, rather than a legislative act. This argument is based on a detailed historical reconstruction of English and early American practices, beginning with a study of the medieval Parliament rolls, year books, and other late medieval English texts, and early modern parliamentary diaries and journals covering the attainders of Elizabeth Barton under Henry VIII and Thomas Wentworth, earl of Strafford, under Charles I. The Article then turns to America, where it illustrates the influence of English practices in revolutionary New York and Pennsylvania, drawing primarily on legislative records, correspondence, memoirs, and early histories. The Article then leverages this historical research to argue in favor of interpreting the Bill of Attainder Clause to apply to summary legal proceedings conducted by the Executive.
Keywords: bills of attainder, bill of attainder, Bill of Attainder Clause, treason, Treason Clause, Strafford, due process, separation of powers
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