In Praise of Attainder

Abstract

For half a millennium, bills of attainder were an accepted sovereign power, used by British and American governments to defend their people in times of emergency.  Throughout the war for independence and its aftermath, the new American states repeatedly attainted loyalists and confiscated their lands, remaking much of the socioeconomic structure of the country .  Then, in little over a year and with barely any reasoning, the ratifiers of the 1788 constitution stripped the state and federal governments alike of their power to attaint.  Today, attainder bans are remembered as a just and inevitable part of Enlightenment reform.  But in truth, these bans were anti-republican.  Worse, they were a mistake. Eighteenth-century bills of attainders were not the arbitrary acts of tyranny that scholars today imagine.  They were a narrow emergency power, passed only after debate and examination of evidence, with procedures guaranteeing due process and appeal written into the text of the laws.  Moreover, although legislators occasionally passed abusive attainders, early Americans proposed reforms that would have prevented abuses without prohibiting attainder outright.  In the right circumstances, bills of attainder are a valuable tool of republican government. The history and ideals of the Founding Era provide compelling reasons to embrace bills of attainder in exceptional times.

Keywords: American Revolution, Constitutional Law, Bills of Attainder, Carl Schmitt, Treason, Law of Evidence, Criminal Procedure