What Is a Bill of Attainder?

A bill of attainder – sometimes called an act or writ of attainder – is an act of a government’s legislature that declares a person or group of persons guilty of a crime and prescribing their punishment without the benefit of a trial or judicial hearing. The practical effect of a bill of attainder is to deny accused person’s civil rights and liberties. Article I, Section 9, paragraph 3, of the U.S. Constitution prohibits the enactment of bills of attainder, stating, “No Bill of Attainder or ex-post facto Law will be passed.”

Origin of Bills of Attainder

Bills of attainder were originally part of English Common Law and were typically used by the monarchy to deny a person’s right to own property, the right to a title of nobility, or even right to life. Records from the English Parliament show that on January 29, 1542, Henry VIII secured bills of attainder that resulted in the executions of a number people holding titles of nobility.

While the English Common Law right of habeas corpus guaranteed fair trials by a jury, a bill of attainder completely bypassed the judicial procedure. Despite their obviously unfair nature, bills of attainder were not banned throughout the United Kingdom until 1870.

US Constitutional Ban of Bills of Attainder

As a feature of English law at the time, bills of attainder were often enforced against residents of the thirteen American colonies. Indeed, outrage over the enforcement of bills attainder in the colonies was one of the motivations for the Declaration of Independence and the American Revolution.

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The Bill of Rights

By Tom Head

The dissatisfaction of Americans with British attainder laws resulted in their being prohibited in the U.S. Constitution ratified in 1789.

As James Madison wrote on January 25, 1788, in the Federalist Papers Number 44, “Bills of attainder, ex-post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”

The Constitution’s ban of the use of bills of attainder by the federal government contained in Article I, Section 9 was considered so important by the Founding Fathers, that a provision banning state law bills of attainder was included in the first clause of ​Article I, Section 10.

The Constitution’s bans of bills of attainder at both the federal and state level serve two purposes:

• They enforce the fundamental doctrine of separation of powers by forbidding the legislative branch from performing functions constitutionally delegated to the judicial or executive branch.
•  They embody the protections of due process of law expressed in the Fifth, Sixth, and Eighth Amendments.

Along with the U.S. Constitution, the constitutions of ever state expressly forbid bills of attainder. For example, Article I, Section 12 of the constitution of the State of Wisconsin reads, “No bill of attainder, ex-post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.”

January 6, 2021 Capitol Unrest and Bill of Attainder

The issue of criminal prosecution through legislation rather than the judicial system bubbled to the top on January 6, 2021, when a crowd that had gathered on the grounds of the U.S. Capitol, broke through police barriers, entered and occupied areas of the Capitol building, and clashed with law enforcement. Organized as a protest questioning the validity of the 2020 presidential election, the incident resulted in the deaths of at least five people, dozens of injuries, and damage to the Capitol building and ground. Several Members of Congress and Vice President Mike Pence, who were meeting in a joint session to count and certify the electoral votes, were threatened and forced to evacuate in response.

Since the incident, some Members of Congress have demanded that individuals directly involved, as well others, potentially including elected officials, who may have incited or supported the unrest be held legally accountable for their actions. 

To that end, the House of Representatives, on January 13, 2021, impeached outgoing President Donald Trump for incitement of insurrection based on the events of January 6. In addition, some Members of Congress proposed passing new legislation barring Former President Trump and other government officials from holding office in the future under Section 3 of the Fourteenth Amendment, which forbids anyone who participates or has participated in “insurrection or rebellion” against the United States from holding any elected or appointed federal office.

Other proposed legislative responses to the January 6, 2021, unrest at the Capitol could raise questions under the Bill of Attainder Clause. However, some legal authorities suggested ways in which Congress could avoid bill of attainder issues in addressing those events.

Since the Bill of Attainder Clause applies only to punishments imposed without a judicial trial, prosecuting individuals involved in the unrest at the Capitol under existing laws would not raise bill of attainder concerns. However, amending existing criminal laws to criminalize past conduct or increase criminal penalties for existing offenses might violate the general constitutional prohibition of ex post facto laws. Thus, while the unrest at the Capitol prompted some calls for new domestic terrorism laws, any new punitive laws could apply only to future incidents.

By contrast, if Congress were to pass legislation imposing punitive legal consequences on one or more individuals or groups alleged to have been involved in the unrest at the Capitol, those accused might challenge such laws as unconstitutional bills of attainder.

Sources and Further Reference

• Saunders, Thomas M. “Defining Bills of Attainder.” The Bill of Attainder Project.
• Lipson, Barry J. “Bill of Attainder: Trial by Legislature.” Federally Speaking (Number 36).