Academic journal article Journal of the Early Republic

The Loyalists and the Federal Constitution: The Origins of the Bill of Attainder Clause

Academic journal article Journal of the Early Republic

The Loyalists and the Federal Constitution: The Origins of the Bill of Attainder Clause

Article excerpt

The Framers considered only a few individual rights important and unobjectionable enough to make it into the actual text of the Constitution. Section 8 of Article I lists what Congress may do: levy taxes, raise an army and a navy, declare war, and various other enumerated powers. Section 9 outlines a few restrictions, a very short list of things that Congress and the federal government may not do. Congress may not pass retroactive ex post facto laws. The federal government may not suspend the privilege of habeas corpus, except in cases of rebellion or invasion. And in one lesser known but potentially powerful set of clauses, the Framers decreed that "No bill of Attainder . . . shall be passed" by either the national government or the states. The authors of the Constitution agreed that the American people have a fundamental, universal, and inalienable right to protection from bills of attainder.* 1

Eighteenth-century legal scholar William Blackstone defined attainder as the extinction of an individual's civil rights upon judgment of guilt in cases of treason or other serious felony. An attainted person is "already dead in the law"; he or she cannot hold property, act as a witness in court, or perform other normal functions in society. When it is clear that "the criminal is no longer fit to live upon the earth," Blackstone wrote, "the law sets a note of infamy upon him [and] puts him out of its protection." A bill of attainder, then, is a legislative act that judges a particular individual or group guilty of a crime and renders them attainted without the benefit of a normal judicial hearing. In other words, the legislature names a person or list of people, declares them guilty, and announces a sentence, all without trials, judges, juries, examination of witnesses, or other standard features of due process.2

At first glance, the Framers' decision to include an absolute, unqualified prohibition on bills of attainder in the Constitution might seem unexpected. In the decade leading up to the Philadelphia Convention in 1787, bills of attainder were actually quite common in America. State legislatures used the laws frequently during the Revolutionary War to banish loyalists, confiscate their property, and even impose sentences of death-in short, to prosecute a civil war against dangerous internal enemies. Of all the states that drafted new constitutions during the Revolution, only Maryland banned bills of attainder expressly. Similarly, the 1777 Articles of Confederation-the inaugural plan for federal government-omitted attainder laws entirely, thus tacitly acknowledging their legality. During the Revolution, it seems, bills of attainder were not only not prohibited, but widely accepted as useful and necessary tools for fighting a civil war.3

It is even more surprising, then, that when bills of attainder came up at the Constitutional Convention in Philadelphia four years later, the Framers passed an unequivocal ban with virtually no debate and a unanimous vote. In his notes from the Convention, James Madison reported that "the motion relating to bills of attainder was agreed to nein, contradicente"-Latin for "of one mind" or "without dissent." The delegates in Philadelphia simply agreed that bills of attainder should be forever banned and quickly moved on. So how can we explain early Americans' apparent reversal on this issue in the very short period between the end of the Revolutionary War in 1783 and the Ratification of the Constitution in 1788? Why would bills of attainder merit such immediate concern, while the freedoms of speech, religion, and the press had to wait until the Bill of Rights?4

Because the Framers failed to explain their reasoning in any comprehensive way, it is difficult to answer these questions with certainty. The delegates did not make passionate speeches for or against bills of attainder on the floor of the Convention: they did not rush home to draft persuasive pamphlets, hoping to win wavering converts to their side. …

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