The Odd Clauses

by Jay Wexler

  As we will see, this “what is punishment” issue also becomes very important when dealing with the bill of attainder clauses, which are found, not surprisingly, right next to the ex post facto clauses, as in Article I, Section 9: No Bill of Attainder or ex post facto Law shall be passed.

  In sixteenth- through eighteenth-century England, a bill of attainder was a legislative enactment sentencing an individual or a group of individuals to death for committing treason without any kind of judicial trial whatsoever. If you can believe it, receiving one of these bills was even worse than it might sound at first. For one thing, bills of attainder came accompanied by something called a “corruption of blood,” which meant that the state, rather than the individual’s heirs, would receive the accused’s property after death. Moreover, the death sentence itself tended toward the brutal. No purportedly painless and medicalized lethal-injection procedure for the recipient of a bill of attainder in old England. An apparently typical punishment for men convicted of treason in the eighteenth century:

  You are to be drawn upon a hurdle to the place of execution, and there you are to be hanged by the neck, and being alive cut down, and your privy-members to be cut off, and your bowels to be taken out of your belly and there burned, you being alive; and your head to be cut off, and your body to be divided into four quarters, and that your head and quarters be disposed of where his majesty shall think fit.

  For God’s sake, not the privy-members. Hands off the privy-members! Incidentally, women convicted of treason were merely “burned with fire until . . . dead.” Anyway, in addition to the bill of attainder, English practice also allowed Parliament to enact a law punishing someone with something a bit lighter than death by disembowelment and decapitation. This kind of law, known as a “bill of pains and penalties,” might have sentenced the unfortunate recipient to some time in prison or banished the person from civil society or even just taken away his or her right to vote. As with bills of attainder, the targeted individual was not entitled to a day in court or any other procedural protections before the punishment was inflicted.

  You might think the American colonies, having revolted against the tyranny of the British, would have immediately done away with legislative punishment, but this was not the case. Indeed, experts claim that bills of attainder were even more popular here around the time of the Revolution than they ever were in England. In 1776 Pennsylvania passed almost five hundred bills of attainder against Tories accused of treason. New York passed a law in 1779 sentencing more than fifty people to death, including two former governors, for having supported King George III, “with Intent to subvert the Government and Liberties of this State.”

  The most interesting bill of attainder ever passed by an American colony or state was one from Virginia that was pushed through the legislature by none other than Mister Freedom himself, Thomas Jefferson. In the summer of 1777, an English sympathizer named Josiah Philips and a team of bandits were wreaking terror on the populations of Princess Anne and Norfolk counties in southeastern Virginia. According to one Virginia lawyer, writing in 1910, Philips

  carried on a species of warfare against the innocent and defenseless, at the bare mention of which humanity shudders. Scarcely a night passed without witnessing the shrieks of women and children, flying by the light of their own burning houses, from the assaults of these merciless wretches; and every day was marked by the desolation of some farm, by robberies on the highway, or the assassination of some individual whose patriotism had incurred the displeasure of this fierce and bloody leader of outlaws.

  Unfortunately for the innocent and defenseless, the government had no success in capturing Philips and his gang. The group took cover in a place called Dismal Swamp (now the Great Dismal Swamp National Wildlife Refuge) that was just too difficult for the government to penetrate, and there were also lots of Tories in the area who were willing to hide the bad guys. In May of 1778, Patrick Henry, Virginia’s governor, asked the state legislature to pass a bill of attainder against Philips to aid with his capture and punishment. The bill that ended up passing the legislature was written by Jefferson, who at the time was a legislative delegate from Albemarle County. The law gave Philips until July 1 to report to the authorities or else be “convicted and attained of high treason, and shall suffer the pains of death.” Not only that, but Jefferson decided to basically deputize the entire population as officers of the state, making it legal for anyone who came across Philips to kill him and his buddies on the spot: “Be it further enacted, That from and after the passage of this act, it shall be lawful for any person, with or without orders to pursue and slay the said Josiah Philips, and any others who have been of his associates or confederates.”

  As it turned out, Philips was captured in the fall, but Attorney General Edmund Randolph decided to forgo the attainder law and try him in a court of law. Randolph didn’t think he had the evidence to convict Philips of murder or arson, so he opted instead to try him and his gang of stealing (the evidence showed that they had taken twenty-eight hats and five pounds of twine). The jury found Philips guilty, and since even hat and twine robbery was punishable by death (sounds like modern-day Texas), he and his fellow ruffians were hanged before the end of the year. Although the attainder law was never used, Jefferson continued to justify his decision to support the bill throughout his life, writing at one point many years after the incident that he “was then thoroughly persuaded of the correctness of this proceeding, and am more and more convinced by reflection.”

  Despite Jefferson’s flirtation with legislative punishment, it is easy to see why the framers would have had it in for bills of attainder, because these things fed right into their loathing of concentrated powers. Unlike the framers’ ideal vision of how the government should mete out punishment—the legislature makes a general rule, the executive charges someone with violating the rule, and the courts decide if the rule has really been broken—with bills of attainder, the legislature acts completely alone. Moreover, because legislatures are elected by popular vote and lack the kinds of procedural protections found in courts, the framers thought that they were inherently inadequate to determine individual guilt. No wonder James Madison called bills of attainder “contrary to the first principles of the social compact” and Alexander Hamilton said that to apply the “name of liberty” to any government that used them “would be a mockery of common sense.”

  At the outset, though, it was far from clear whether, by using the specific phrase “bills of attainder” in the Constitution, rather than something broader, like “legislative punishment,” the framers had outlawed only those legislative enactments that precisely resembled the English bills of attainder. Would a legislative death sentence that didn’t carry with it a “corruption of blood” count? (Interestingly, a separate section of Article III provides that “Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood.”) How about a legislatively imposed prison sentence or property forfeiture? The Supreme Court answered this question definitively very early on, when Chief Justice Marshall, in the 1810 decision of Fletcher v. Peck, stated that a “bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.” The Court made it clear that the clause was aimed at the problem of legislative punishment generally and not just the specific bad thing known as a “bill of attainder” in eighteenth-century England.

  The Court has heard a number of bill-of-attainder-clause cases in the last couple of hundred years, but only five times has it ever condemned a law under the provision. The first two of these cases came right after the Civil War. In Cummings v. Missouri, the Court struck down a law making it illegal for anyone who could not swear an oath that he had not rebelled against the Union to serve in certain professions, including the priesthood. In Ex parte Garland, the Court invalidated a federal statute that required any lawyer who wanted to appear in federal court to take the same kind of oath. Building on Fletcher v. Peck, th
e Court in these two decisions made clear that the bill of attainder clauses would be applied broadly, not only to a punishment that is far, far less severe than the death penalty, but also to laws that describe a group of people rather than naming them specifically. Another famous bill of attainder case came in 1946, in United States v. Lovett, when the Court struck down a law that singled out three specific government officers, deemed by at least one member of Congress to be “irresponsible, unrepresentative, crackpot, radical bureaucrats” (read: Communists) as being unfit, and therefore ineligible, for a federal salary. “Those who wrote our Constitution,” the Court said in striking down the law, “well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment.”

  The high point for the bill of attainder clauses came in 1965, when the Court held that Congress could not make it a crime for a member of the Communist Party to hold an officer or employee position in a labor union. The case involved a San Francisco dockworker named Archie Brown, who had been a Communist since the late 1920s. When Brown was elected to the executive board of his union, he was charged with violating a 1959 labor statute and sentenced to six months in prison. Brown, who had fought as a machine gunner in the Spanish Civil War and at the Battle of the Bulge during World War II, not surprisingly refused to back down and challenged his conviction on constitutional grounds. In a landmark opinion, Chief Justice Earl Warren rejected the government’s position that because the law was intended not as retribution but rather as a way of keeping dangerous people out of positions where they could do harm, it did not impose “punishment.” As Warren wrote, “Punishment serves several purposes; retributive, rehabilitative, deterrent—and preventive. One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.”

  In several other cases, however, the Supreme Court has rejected bill of attainder challenges to controversial laws. In a 1984 case called Selective Service System v. Minnesota PIRG, for instance, the Court upheld a federal law that made male students who hadn’t registered for the draft ineligible for student financial aid. Why was this different from the laws struck down in previous cases? The Court cited two reasons. First, unlike Cummings or Garland, where someone had either fought for the Confederacy or not, here someone who wanted federal aid could change his mind and register for the draft. Thus, the group of people singled out under the law was not permanently set at the time of the legislation. Second, the law did not impose punishment, primarily because it served the nonpunitive goal of encouraging young men to register for the draft. In deciding that the law was not punishment, the Court applied a three-part test (the Supreme Court loves three-part tests almost as much as it loves big corporations) that was set out several years before in Nixon v. Administrator of General Services, a case in which Richard Nixon unsuccessfully challenged a law singling out his papers and tapes for special treatment. According to the test set out in Nixon and applied in Selective Service System, the question of whether some burden imposed by a law counts as “punishment” turns on whether (1) the burden has historically been considered punishment; (2) the burden functions as punishment (or whether it instead serves some nonpunitive goal); and (3) the legislature intended to punish the individual or individuals singled out by the law. These, then, are the key questions when it comes to deciding whether the three scenarios described at the beginning of the chapter were constitutional.

  Assuming that you are alive and have not been sleeping under a rock for the past twenty years, you know that the statute books in this country are filled with laws that single out gays and lesbians for negative treatment, denying them the right to marry and many other benefits enjoyed by opposite-sex couples. Might these laws be subject to attack under the bill of attainder clauses?

  In 1992, residents of Colorado passed a referendum amending the state’s constitution to provide that no government unit within the state “shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall . . . entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.” The referendum, called Amendment 2, rendered invalid local ordinances in Aspen, Boulder, and Denver that had outlawed discrimination on the basis of sexual orientation in areas like employment, public accommodation, and education.

  Opponents of the new law (here, we will refer to them as “people who believe in goodness rather than badness”) challenged it in federal court, arguing that it violated the equal protection clause of the Fourteenth Amendment. Despite the inherent goodness of these challengers, they had an uphill road to travel to get the law invalidated under that clause, because the Court had never previously frowned upon laws discriminating against gays and lesbians. Indeed, in 1986, in a debacle of a decision called Bowers v. Hardwick, the Court had upheld against constitutional attack Georgia’s conviction of a man under the state’s sodomy law for engaging in anal and/or oral sex with another man in his own bedroom. (This decision, mercifully, was overruled in 2003.)

  The Supreme Court surprised a lot of people when it decided in Romer v. Evans that Amendment 2 did in fact violate the equal protection clause. Justice Kennedy’s opinion for the majority, however, did not fashion any sort of broad ruling to protect gays and lesbians from run-of-the-mill discrimination. Instead, the Court focused on the specifically awful nature of Amendment 2—a law so broad and so unconnected to any plausible justification that it “seems inexplicable by anything but animus toward the class it affects.” The Court, essentially, invented a new doctrine to deal with Amendment 2—the “anti-animus” rule—that it had never used before and has not used since. It probably goes without saying that Justice Scalia issued a dissenting opinion so apoplectic in tone that one wonders whether he bit a gavel in half while writing it.

  Because the majority’s decision in Romer strayed pretty far from traditional equal protection doctrine, even scholars who supported the decision looked for ways to explain it that might make better sense of the case. One such scholar was Yale Law’s Akhil Amar, a constitutional law professor so prominent that I’m surprised I haven’t mentioned him yet. If Amar were a baseball player, he’d be Alex Rodriguez; if he were a Scrabble player, he’d be, well, whoever one of the best Scrabble players in the country is. In an article published soon after Romer was decided, called “Attainder and Amendment 2: Romer’s Rightness,” Amar argued that the key to understanding the case is the Constitution’s ban on bills of attainder, which is essentially what Amendment 2 amounted to. Amar wrote of the law: “It was a kind of legal and social outlawry in cowboy country—a targeting of outsiders, a badge of second-class citizenship, a tainting of queers, a scarlet Q. The queer (pun intended) language of Amendment 2—its odd and obsessive singling out of all nonstandard sexual orientations—was a subtle cue, a Freudian slip that told fashioned animus was afoot here.” Though Amar observed that Justice Kennedy’s opinion didn’t actually discuss or even mention the bill of attainder clause, he argued that “the sociology and principles underlying the Attainder Clause powerfully illuminate . . . the opinions in Romer, and the spirit of the Equal Protection itself.” The clause, Amar suggested, “offers lawyers litigating gay rights cases a particularly rich and apt source of doctrine.”

  Amar’s article got a lot of attention in the lawyerly and scholarly world, and, sure enough, lawyers litigating gay rights cases have tried using his attainder theory to challenge other anti-gay-and-lesbian laws and regulations. Once, it almost even worked. In the year 2000, the charitable citizens of Nebraska (probably the same people who keep arguing that a driver’s license is a title of nobility) voted by a huge majority to amend their constitution to make sure that people of the same sex who love each other cannot enjo
y the same legal benefits enjoyed by people of different sexes who love each other. Specifically, the new Section 29 of the Nebraska state constitution says that: “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.”

  As in Colorado, people who believe in goodness sued, and at first the courts agreed that the new law violated the US Constitution. District court judge Joseph Bataillon held that Section 29 violated the First Amendment, the Fourteenth Amendment, and the bill of attainder clause. On the latter holding, he agreed with the plaintiffs that by making it impossible for them to “petition their representatives and city and local governments for legislative changes that would protect their relationships, agreements, and interests,” the new amendment “effectively disenfranchised lesbian and gay and bisexual people and their supporters.” Citing the Supreme Court’s decision in Brown and prominently featuring Amar’s article on Romer, Judge Bataillon concluded that this was punishment aimed at a specific group. The Eighth Circuit Court of Appeals, however, disagreed and found fault with almost everything that the district court had said. On the bill of attainder point, the appeals court held that the political disadvantage imposed on gays and lesbians by Section 29 was punishment neither in the historical sense nor in the functional sense. Why didn’t the amendment serve functionally to punish? Because “it serves the nonpunitive purpose of steering heterosexual procreation into marriage, a purpose that negates any suspicion that the supporters of [the amendment] were motivated solely by a desire to punish disadvantaged groups.”