Attainder, Bills of

The first bill of attainder—a legislative act to punish a person without a judicial trial—was introduced and passed in the English Parliament in 1459. Attainder was a legislative penalty for a high crime such as treason and stripped the condemned of all civil rights, including the right to inherit or transmit property. As James Madison noted in essay 44 of The Federalist (1787–88) (see Federalist Papers), bills of attainder, along with ex post facto laws and laws impairing the obligation of contracts, “are contrary to the first principles of the social compact and to every principle of sound legislation.”

So desirous of prohibiting bills of attainder were the Framers of the Constitution that they devoted two provisions to banning their use, one directed to the federal government and one to state governments. “No Bill of Attainder or ex post facto Law shall be passed,” Article I, section 9, mandates, while section 10 commands, “No State shall…pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts….”

On the basis of these prohibitions against bills of attainder, the Supreme Court in Ex parte Garland (1867) invalidated a federal law requiring attorneys to take an oath denying any part in the Confederate rebellion before they could practice law before federal courts, and in Cummings v. Missouri (1867), the Court struck down a similar state requirement regarding the practice of certain professions, calling both punishment without a trial. In United States v. Lovett (1946), the justices again relied on the prohibitions against bills of attainder to overturn a loss of pay decreed by Congress for three employees whom a congressional committee alleged to be subversives. However, in Nixon v. Administrator of General Services (1977), the Court held that a law giving the General Services Administration authority to take possession and control of White House records to prevent their being lost or destroyed, while directed expressly at one person—Richard Nixon—” constituted a legitimate class of one [person]” and did not impose the punishment of a bill of attainder.

But the U.S. District Court for the District of Columbia in Morgan v. Foretich (2003) invalidated the act passed by Congress in 1996 that permitted Elizabeth Morgan’s daughter (who had been taken from the United States to New Zealand in the late 1980s to prevent contact with her father, Eric Foretich, whom her mother accused of child abuse) to decide for herself whether or not to have further contact with her father as “an unconstitutional bill of attainder.” It has also been suggested that the “Palm Sunday Compromise,” or the Act for the Relief of the Parents of Theresa Marie Schiavo [Terri Schiavo], passed by Congress in 2005, constituted a bill of attainder. The act moved from state court to a U.S. district court in Florida the parents’ petition to prevent their daughter from being taken off life support.