Article 1, Section 9, Clause 3 — Bills Of Attainder Doctrine

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Article 1, Section 9, Clause 3

No Bill of Attainder or ex post facto Law shall be passed.

Supreme Court cases have given “broad and generous meaning to the constitutional protection against bills of attainder” by interpreting it to ban not only legislation imposing a death sentence, as the term was used at English common law, but also legislation that imposes other forms of punishment on specific persons without trial.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn1art1 " Nixon, 433 U.S. at 469; see also Fletcher v. Peck, 10 U.S. 87, 138 (1810) ( “A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.” ). ") However, the Court has emphasized that legislation does not violate the Bill of Attainder Clause simply because it places legal burdens on a specific individual or group.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn2art1 " Id. at 470–71. ") Rather, as discussed in more detail below, a bill of attainder must also inflict punishment.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn3art1 " Id. at 472–73; see also Trop v. Dulles, 356 U.S. 86, 95–96 (1958) ( “Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto laws, it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties.” (footnotes omitted)). ") Another key feature of a bill of attainder is that it applies retroactively: the Supreme Court has held that the Bill of Attainder Clause does not apply to legislation that “is intended to prevent future action rather than to punish past action.” [4](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn4art1 " American Communications Ass’n, C.I.O., v. Douds, 339 U.S. 382, 414 (1950). The Bill of Attainder Clause is one of several constitutional provisions that limit the ability of the Federal Government and the states to legislate retroactively. See Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). ") The Court has also held that the prohibition on bills of attainder does not safeguard the states against allegedly punitive federal legislation[5](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn5art1 " South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) ( “[C]ourts have consistently regarded the Bill of Attainder Clause of Article I and the principle of the separation of powers only as protections for individual persons and private groups, those who are peculiarly vulnerable to non-judicial determinations of guilt. . . . Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parens patriae of every American citizen.” (internal citations omitted)). ") and does not protect U.S. citizens who commit crimes abroad and face trial in other jurisdictions.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn6art1 " Neely v. Henkel, 180 U.S. 109, 122 (1901) (holding that constitutional provisions including the Bill of Attainder Clause “have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country” ). ") Overall, the Supreme Court’s decisions suggest that the Court has applied the Bill of Attainder Clause to prevent legislatures from circumventing the courts by punishing people without due process of law.

The Supreme Court applied the constitutional prohibitions on bills of attainder in a pair of Reconstruction-era cases, Ex parte Garland[7](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn7art1 " 71 U.S. 333 (1866). ") and Cummings v. Missouri.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn8art1 " 71 U.S. 277 (1866). ") Garland concerned a federal statute, while Cummings involved a post-Civil War amendment to the Missouri constitution, but both of the challenged provisions required persons engaged in certain professions to swear an oath that they had never been disloyal to the United States.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn9art1 " See Garland, 71 U.S. at 334–35 (federal statute required attorneys practicing in federal court to swear an oath that they had never voluntarily borne arms against the United States or “given . . . aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto” ); Cummings, 71 U.S. at 280 (state constitutional provision required members of the clergy and others to swear, “I have always been truly and loyally on the side of the United States against all enemies thereof, foreign and domestic” ). ") In both cases, the Court held that the effect of the challenged provisions was to punish a group of individuals who had been disloyal to the United States, and the punishment they faced was effective exclusion from the covered professions.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn10art1 " See Garland, 71 U.S. at 377 ( “The statute is directed against parties who have offended in any of the particulars embraced by these clauses [related to past disloyalty]. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States.” ); Cummings, 71 U.S. at 320 (The oath requirement “was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment, and that for many of them there was no way to inflict punishment except by depriving the parties, who had committed them, of some of the rights and privileges of the citizen.” ). ")

Based on that holding, the Supreme Court invalidated the provisions as unconstitutional bills of attainder.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn11art1 " Cummings, 71 U.S. at 325–29; Garland, 71 U.S. at 380. ") In Cummings, the Court noted that the challenged state constitutional provisions did not expressly “define any crimes, or declare that any punishment shall be inflicted, but they produce[d] the same result upon the parties, against whom they are directed, as though the crimes were defined and the punishment was declared.” [12](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn12art1 " Cummings, 71 U.S. at 327. ") The provisions “aimed at past acts, and not future acts,” and were “intended to operate by depriving such persons of the right to hold certain offices and trusts, and to pursue their ordinary and regular avoications.” [13](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn13art1 " Id. ") The Court held that this deprivation constituted a punishment, and that the purported option to avoid the restriction by swearing a loyalty oath did not make it less so:

The framers of the constitution of Missouri knew at the time that whole classes of individuals would be unable to take the oath prescribed. To them . . . the deprivation was intended to be, and is, absolute and perpetual. To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial, enforced for a past act, is nothing less than punishment imposed for that act.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn14art1 " Id. ")

In Garland, the Court applied its reasoning in Cummings to strike down the similar federal law.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn15art1 " Garland, 71 U.S. at 377–78. ")

In the 1946 case United States v. Lovett, the Supreme Court struck down as a bill of attainder an appropriations bill cutting off the pay of certain named federal employees accused of being “subversives.” [16](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn16art1 " 328 U.S. 303, 315 (1946). ") The Court explained that the challenged legislation effectively declared specific persons guilty of the crime of subversive activities “without the safeguards of a judicial trial.” [17](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn17art1 " Id. at 317. See also Bigelow v. Forrest, 76 U.S. 339, 345 (1869) ( “[The] limitation upon bills of attainder does not apply to proceedings in courts, in individual cases, where there are regular trials and formal proceedings in which the individual has full opportunity to defend.” ). ") The legislation further permanently barred those persons from government service, which qualified as “punishment . . . of a most severe type.” [18](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn18art1 " Id. at 313, 316. ") Similarly, in the 1965 case United States v. Brown, the Court held that a federal statute making it a crime for a member of the Communist Party to serve as an officer of a labor union was a bill of attainder.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn19art1 " 381 U.S. 437, 440 (1965). ") The Brown Court eschewed a rigid historical view of the Bill of Attainder Clause, explaining that the clause

was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply-trial by legislature.[20](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn20art1 " Id. at 442. ")

The Court concluded that Congress had “exceeded the authority granted it by the Constitution” in enacting the challenged statute because, rather than creating generally applicable rules for courts to apply, the statute “designate[d] in no uncertain terms the persons who possess . . . feared characteristics and therefore cannot hold union office without incurring criminal liability—members of the Communist Party.” [21](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder-doctrine#fn21art1 " Id. at 450. ") By contrast, in roughly contemporaneous cas