Bills of Attainder and Ex Post Facto Laws Under the Constitution

To ensure the separation of powers, the Constitution of the United States prohibits Congress from issuing "bills of attainder." The U.S. Constitution only permits the judiciary to determine whether someone is guilty or innocent. Similarly, the Constitution prohibits the federal and state governments from passing ex post facto laws, i.e., laws that retroactively create a crime where none existed before.

The prohibition against bills of attainder reinforces the foundational idea in the American justice system that the government cannot punish someone unless they receive due process. In most cases, this means a trial.

Similarly, the prohibition against ex post facto laws reinforces the idea that the government cannot punish someone retroactively for an action they took that was lawful at the time. In combination, the prohibitions protect citizens against potential abuses of government power.

While bills of attainder and ex post facto laws are closely related, they are legally distinct. This article describes the two prohibited types of laws. It begins with the Constitutional provisions banning their enactment. It then provides an in-depth explanation of each.

Article I, Section 9, Clause 3:

Article I, Section 9, Clause 3 states that "no Bill of Attainder or ex post facto Law shall be passed."

Article I, Section 10, Clause 1 states:

"No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, . . ."

Together, these constitutional prohibitions prevent the federal and state governments from passing either bills of attainder or ex post facto laws.

What is a Bill of Attainder?

The Constitution bans Congress and state governments from passing bills of attainder. A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." (Nixon v. Administrator of General Services (1977), citing United States v. Brown (1965)).

A bill of attainder is a law that has the following three characteristics:

• It applies with specificity to a person, people, or easily ascertainable members of a group

• It applies a legal burden and punishment on that group

• It applies to the individuals' past conduct

Put simply, a bill of attainder is a law that imposes criminal punishment on specific individuals for actions they previously took, and it does so without the benefit of a trial.

An essential characteristic of bills of attainder is that they impose punishment without a judicial trial. (Cummings v. Missouri (1867)). If the law substitutes a "legislative determination of guilt and legislative imposition of punishment for judicial finding and sentence," it is a bill of attainder. (United States v. Lovett (1946).

In other words, if the law declares someone guilty simply because of their class, status, or group affiliation, it's a bill of attainder.

What is an Ex Post Facto Law?

The ex post facto clause prohibits the federal and state governments from passing laws that retroactively impose criminal liability or punishment for actions that were legal at the time a person or group took them. A law retroactively imposing a greater criminal punishment is also an ex post facto law. The term "ex post facto" is Latin for "after the fact."

With regard to timing, courts analyzing the ex post facto clause look at whether the law applies retroactively to the time the person or group committed the offense. The Supreme Court has held that "people must have notice of the possible criminal penalties for their actions at the time of the act."

State courts have cited the federal ex post facto clause in state cases and vice versa. Therefore, the modern understanding of the clauses is that they have the same scope.

The ex post facto clause and bill of attainder clause are closely related. In several cases, the Supreme Court has overturned a law because it violated both clauses. The following sections describe these constitutional prohibitions and the Court's interpretation of them in more detail.

Bills of Attainder In Depth

This section describes bills of attainder in depth. It begins with their historical background and why the Framers included their protection. It then describes several significant Supreme Court cases involving the bill of attainder clause.

Historical Background of Bills of Attainder

In English common law, bills of attainder referred only to laws that imposed the death penalty (capital punishment) on specific people. The United States Supreme Court has expanded the definition of bills of attainder to include not only laws that impose the death penalty on specific people but also those that impose "other forms of punishment on specific persons without trial."

The modern understanding of the bill of attainder clause is that it prohibits laws that label "a person or group as a wrongdoer and takes their property, liberty, or both without due process." The judiciary adjudicates criminal cases and prosecutions. Legislative action that imposes guilt on a person or group simply due to their inherent characteristics or group involvement is unconstitutional because of the Constitution's separation of powers.

As Duane Ostler writes in his article, Bills of Attainder and the Formation of the American Takings Clause at the Founding of the Republic (2010), the prohibition against bills of attainder acted as "a prohibition of arbitrary takings." Ostler continues by noting the Fifth Amendment's takings clause, proposed by James Madison.

Ostler writes that Madison's primary goal in proposing the Fifth Amendment "was to avoid a second constitutional convention, not to protect rights which he believed were already protected." In short, Ostler argues that the Framers viewed the bill of attainder clause as protecting against the federal government's infringement of citizens' property and liberty.

Supreme Court Cases: Bill of Attainder Clause

Two Supreme Court cases following the Civil War provide foundational information about the bill of attainder clause. Both cases involved laws that required people engaged in certain professions to swear that they had never been disloyal to the United States. The Supreme Court held that each law punished specific people by excluding them from working in specific professions. Therefore, the laws were unconstitutional bills of attainder.

Additional Supreme Court cases further defined the process of determining whether a law is a bill of attainder. As the Constitution Annotated notes, "the Supreme Court's decisions suggest that the Court has applied the Bill of Attainder Clause to prevent legislatures from circumventing the courts by punishing people without due process of law."

This section describes several of these cases and how the bill of attainder clause jurisprudence has developed over time.

Cummings v. Missouri (1867)

Cummings addressed an amendment to Missouri's constitution. The amendment required people in certain occupations to take an "Oath of Loyalty." The oath required them to swear they did not aid the Confederacy during the Civil War. If the people in those professions did not take the oath, the law prevented them from working in those professions. One of the specified professions was priests.

A priest refused to take the oath. The state convicted them due to his refusal. The Supreme Court reviewed the conviction and held that the amendment constituted a bill of attainder.

First, the Court defined a bill of attainder as "a legislative act which inflicts punishment without a judicial trial." The amendment did not "define any crimes, or declare that punishment shall be inflicted." Instead, "it produce[d] the same result upon the parties . . . as though the crimes were defined and the punishment was declared."

The Court found it significant that the amendment targeted past acts rather than future acts. The Court also wrote that the amendment "intended to operate by depriving such persons of the right to hold certain offices and trusts." The Court held that this was a punishment, and the option people had to take the oath did not change the amendment's effect.

The Court noted that the Missouri legislature knew that many people could not take the oath in good faith due to their support of the Confederacy. In that regard, the Court wrote the following:

"[T]he deprivation was intended to be, and is, absolute and perpetual. To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial, enforced for a past act, is nothing less than punishment imposed for that act."

In other words, the legislature intended to punish people who had rebelled against the United States. It targeted specific people (the group of individuals who had "betrayed" the Union) for something they did in the past and could no longer take back. The punishment was "absolute and perpetual" because they could not work in their profession without taking the oath, and they could not take the oath in good faith if they supported the Confederacy in the past.

Because the amendment punished a specific class of people without a trial, the Court held that it was an unconstitutional bill of attainder. The Court also ruled that the amendment was an unconstitutional ex post facto law because it imposed punishment for actions the people took that were not criminal when they took them.

Ex Parte Garland (1867)

The Court decided Ex parte Garland on the same day it decided Cummings. In Ex parte Garland, the Court held that an Act of Congress that required lawyers to take a similar oath as the one in Cummings was unconstitutional.

Relying on Cummings, the Court struck down the federal law because it was a bill of attainder and an ex post facto law. The Court held that the federal law targeted a specific group of people (those disloyal to the Union) and punished them without a trial. Additionally, the Court held that the law was an ex post facto law because it criminally punished people for actions that were not criminal when they took them.

As the Court noted in United States v. Lovett (1946), both Cummings and Ex parte Garland "stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution."

Neely v. Henkel (1901)

In Neely, the Court held that the constitutional prohibition against bills of attainder did not protect U.S. citizens who broke the laws of a foreign country. The Court also held that the ex post facto clause does not apply to crimes committed outside of the United States.

United States v. Brown (1965)

In Brown, the Court ruled that a federal law criminalizing the act of simultaneously being a labor union officer and a member of the Communist Party was a bill of attainder. In doing so, it reinforced the idea that the bill of attainder clause is "an implementation of the separation of powers" and "a general safeguard" against a "trial by legislature."

There, the majority opinion stated that the "Bill of Attainder Clause was found to 'reflect . . . the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.'"

The Court held that Congress had no authority to enact the federal law. The law was not one of general application. Instead, it targeted a specific group—the Community Party—and imposed criminal liability on any group member who became a union officer. Therefore, the Court struck down the law as an unconstitutional bill of attainder.

Nixon v. Administrator of General Services (1977)

The most significant modern case regarding bills of attainder is the Nixon case. There, the Court created three tests for determining whether a law is a bill of attainder.

The case involved former President Richard Nixon, who challenged a federal law that allowed a federal government official to seize his papers and tape recordings. Nixon argued that because the law only targeted him (it referred to him by name), it was a bill of attainder.

The Court ruled against Nixon. It recognized the law referred to Nixon by name, but that in and of itself did not make it a bill of attainder. The Court wrote that, in certain circumstances, the Court can make a law that applies to a single person.

The key feature of a bill of attainder is that it imposes "punishment." Although the law applied to a specific person, it did not impose a punishment.

The Court created three separate tests to determine "whether a law imposes punishment." They are:

1. The historical test looks at the history of bills of attainder dating back to English common law. It also includes Supreme Court precedent (e.g., Cummings, Ex parte Garland, Lovett, and Brown).

2. The functional test examines whether the law furthers a legitimate legislative purpose. Courts should look at the law "in terms of the type and severity of burdens imposed" while using this test.

3. The motivational test "looks to legislative history to determine whether the legislative record evinces a congressional intent to punish."

The Court applied the three tests to the Nixon case and concluded none were satisfied. Therefore, the Court ruled it was not a bill of attainder.

Ex Post Facto Laws In Depth

As the Supreme Court noted in Calder v. Bull (1798), the British Parliament used its power to pass ex post facto laws to criminalize past innocent actions. They did so through bills of attainder (inflicting the death penalty for past actions) and bills of pains, which inflicted lesser punishments.

For example, the British Parliament would retroactively label a past innocent action as treason. Other times, it changed the rules of evidence, allowing the government to rely upon less or different evidence than it previously needed to prove a fact in a case.

Two Framers wrote about the need for the ex post facto clause in The Federalist Papers. In Federalist No. 44, Madison wrote that ex post facto laws "are contrary to the first principles of the social compact, and to every principle of sound legislation." In Federalist No. 84, Alexander Hamilton wrote that tyrannical governments' "favorite weapon" was ex post facto laws because they allowed them to create crimes after someone had taken an action.

During the constitutional convention in 1787, several delegates argued that the Constitution did not need to prohibit ex post facto laws specifically. In their view, it was so evident that laws imposing criminal punishment for a past innocent act were improper that it was unnecessary to explicitly prohibit them. Others argued that including such a prohibition "could do harm by '[p]roclaiming that we are ignorant of the first principles of Legislation."

Of course, the Framers ultimately included the prohibition against ex post facto laws in the Constitution. It prohibits Congress (comprised of the House of Representatives and the Senate) from passing laws that criminalize innocent actions after the fact. The prohibition serves to protect people from legislative determinations of guilt and reinforces the Constitution's separation of powers.

The ex post facto clause is one of several constitutional prohibitions against retroactive government action. Along with the bill of attainder clause, the contract clause and due process clause also prohibit certain types of retroactive government action.

Supreme Court Cases: Ex Post Facto Clause

This section describes several landmark cases regarding the ex post facto clause.

Calder v. Bull (1798)

In Calder, the Court had to decide whether a state legislature could order a new trial in a probate case. The case provided significant explanations of ex post facto laws generally.

A Connecticut probate court denied the Bull family an inheritance, even though a will named them as intended beneficiaries. They attempted to appeal the probate court's decision. However, a state law prevented them from appealing the decision, as it was issued more than 18 months prior.

The Bull family convinced the state legislature to change the law. They appealed their case and won on appeal. Calder, who had received the inheritance, argued that the law change was an ex post facto law.

The Court held that the change in law was not an ex post facto law. Justice Samuel Chase wrote for the unanimous majority that the ex post facto clause only prohibits governments from passing retroactive criminal laws. The clause does not apply to the passage of retroactive civil laws.

Regarding ex post facto laws, Justice Chase wrote the following (emphasis in original):

"[T]he plain and obvious meaning and intention of the prohibition is this; that the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it."

Justice Chase listed four types of legislation that he considered to be ex post facto laws. The so-called "Calder categories" are as follows (emphasis in original):

• "Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action."

• "Every law that aggravates a crime, or makes it greater than it was, when committed."

• "Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed."

• "Every law that alters the legal rules of evidence and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."

He described the above rules as "manifestly unjust and oppressive." However, because the change of law in Calder did not impose a criminal punishment, it was not an ex post facto law.

Harisiades v. Shaughnessy (1952)

In Harisiades, the Court ruled that the Alien Registration Act of 1940 was not an ex post facto law because the people challenging it "were not caught unawares by a change of law." The decision affirms that just because a law may have a retroactive effect does not mean it is an ex post facto law.

A Greek national, Harisiades, moved to the United States in 1916. He joined the Workers Party (which later became the Community Party) in 1925. The government issued a warrant for Harisiades' deportation in 1930 due to his involvement with the Community Party.

In 1920, Congress passed a law stating that any alien who joined an organization that advocated for the violent overthrow of the United States government was subject to deportation. The Community Party was such an organization.

The Supreme Court's decision in a 1939 case held that the law at that time did not clearly provide for the deportation of those who had once participated in such an organization but no longer did. The decision prompted organizations, like the Community Party, to expel members or ask them to resign. This allowed them to avoid deportation while still supporting the organization's goals. The Communist Party discontinued Harisiades' membership in 1939.

In response to the Court's decision, Congress passed the Alien Registration Act of 1940. It allowed for the deportation of any alien who may have violated the prior statute, whether or not they had resigned or the organization had expelled them.

The government finally served the warrant on Harisiades in 1946. Due to his involvement with the Community Party, he was ultimately ordered for deportation. He and other similarly situated people challenged their deportations.

Among their arguments was that the Alien Registration Act of 1940 was an ex post facto law. Specifically, they argued that the Act imposed criminal penalties for acts they engaged in before its enactment.

The Court unanimously held that the Alien Registration Act of 1940 was not an ex post facto law. It began by noting that deportation is not a criminal punishment. Instead, it is a civil procedure. Therefore, the "punishment" of deportation did not fit within the ex post facto clause's prohibition against imposing criminal punishment for a past act.

The Court also noted that aliens who were members of the Community Party and similar organizations had been subject to deportation since the 1920s. Therefore, "the challengers ‘were not caught unawares by a change of law. There can be no contention that they were not adequately forewarned both that their conduct was prohibited and of its consequences.'"

Harisiades stands for the idea that just because a law imposes a retroactive punishment, it is not an ex post facto law unless it imposes a retroactive criminal punishment. Additionally, even if the law imposes a retroactive criminal punishment, it is not necessarily an ex post facto law. So long as the person was "adequately forewarned" about the prohibited nature and consequences of their action when they committed it, the law may be constitutional.