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St. Thomas Law Review

Jacob Reynolds

First Page

177

Document Type

Article

Abstract

Until recently, modem bill of attainder analysis has been fairly simple for courts and litigators alike - in order to be considered a bill of attainder, a law must "(1) specify the affected persons; (2) impose punishment; and (3) lack a judicial trial." Furthermore, the case law defining the appropriate analysis in bill of attainder cases is minimal and simple to understand: as one recent appointee to the D.C. Circuit has aptly noted, "[t]he Supreme Court's approach to the bill of attainder clause has been developed in only a handful of decisions. It is surprising that such a historically non-controversial clause of the Constitution has become such a potent "weapon" in the hands of contemporary litigators. However, within just the last couple of years, litigants have more aggressively utilized the Constitution's Bill of Attainder Clause in an increasing variety of cases involving the following issues: petitions of habeas corpus, the invalidation of regulatory schemes, housing ordinances, the constitutionality of a DNA database, and the Elizabeth Morgan Act. Perhaps the most controversial case involving bill of attainder analysis in our country's history was decided just this year in the U.S. District Court for the District of Nebraska. In that case, the district court decided to invalidate a state constitutional amendment' on the basis that it was "an unconstitutional bill of attainder" because it singled out gays, lesbians, bisexuals, and transsexuals for legislative punishment. With so many cases revolving around bill of attainder analysis, and given the nature of some of the claims, it is almost certain that the Supreme Court will revisit its bill of attainder analysis in coming years. Given the varied and many attempts to utilize what has been termed a Constitutional "weapon,"' this paper is meant to be a guide to those interested in the actual origins of the bill of attainder clauses in the Constitution. There are a growing number of judges who seek "to unearth the statutes' original meanings rather than enforcing whatever modem readers might take the statutes' language to mean." However, there is as great a paucity of discussion concerning the origins of the bill of attainder clause in academia as there is in Supreme Court case law. Therefore, this paper is dedicated to a discussion of the origins of the bill of attainder clause, and thus fills some of the academic void by presenting a theory as to how the clause was understood at the time of its incorporation into the Constitution. The purpose of this paper is twofold: first, this paper examines the history of bill of attainder usage that would have been familiar to the founders; and second, this paper theorizes that the founders' dedication to the Rule of Law is what led them to adopt what we know now as the Bill of Attainder clause in the Constitution. Ultimately, the hope is that this paper will be an aid to those interested in the original understanding of the Constitution during this time of increased interest in the Bill of Attainder clause.

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