Limits on States: A Reference Guide to the United States Constitution

By James M. McGoldrick Jr. | Go to book overview

3
Bills of Attainder

No State shall… pass any Bill of Attainder. Article I, Section 10, Clause 1


HISTORY AND INTRODUCTION

Article I, Section 10, prohibits states from passing bills of attainder and ex post facto laws. Article I, Section 9, imposes the same limitations on Congress. Justice John Paul Stevens, in a case involving the Ex Post Facto Clause (Carmell v. Texas, 2000), in language equally applicable to bills of attainder, said such laws were cruel and unjust, an example of “injustice and tyranny,” “oppressive, unjust, and tyrannical,” and “condemned by the universal sentence of civilized man.” He quoted Alexander Hamilton in The Federalist Papers, number 84, as calling them “the favorite and the most formidable instruments of tyranny.” Finally, quoting the historically seminal Calder v. Bull ex post facto case, he said they were “often used to effect the most detestable purposes” (Calder v. Bull, 1798). The constitutional meaning of the prohibition is the same in both Section 9, applicable to Congress, and Section 10, applicable to the states. This chapter will develop the meaning of the two clauses, using the precedents involving Section 9 and Section 10. Although most of the cases involve state laws, there is no attempt to limit the discussion to primarily state cases.

Prohibitions of bills of attainder and ex post facto laws have a similar purpose: to prevent retroactive punishment for past conduct. Bills of attainder are legislative acts that impose punishment for prior conduct on named individuals or easily ascertainable members of a group without a judicial trial. They substitute legislative determinations of guilt and punishment for judicial findings and sentence. Courts of justice are employed only to register the edict and carry the sentence into execution. Ex post facto laws make criminal, acts that have already occurred. They do not necessarily identify particular individuals, and may or may not involve a judicial trial and sentence. Bills of attainder specify the offense of which the charged party is deemed guilty and the punishment, but the offense

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Limits on States: A Reference Guide to the United States Constitution
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Series Foreword ix
  • Foreword xiii
  • 1 - History and Introduction to Article I, Section 10 1
  • 2 - The Contract Clause 5
  • 3 - Bills of Attainder 55
  • 4 - Ex Post Facto Laws 65
  • 5 - The Nonretroactive Provisions of Article I, Section 10 81
  • 6 - The Import-Export Clause 89
  • 7 - Interstate Compacts 101
  • 8 - Concluding Comments on Article I, Section 10 111
  • Bibliographical Essay 115
  • Table of Cases 125
  • Index 131
  • About the Author 135
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