The U.S. constitution proscribes ex post facto laws and bills of attainder. What are bills of attainder?

Are they the same as what is referred to by what Wikipedia has to say on attainder?


1 Answer 1


See United States v. Lovett, 328 U.S. 303 (1946) (quoting from the syllabus):

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.

See also Nixon v. Administrator of General Services, 433 U.S. 425 (1977)

In England, a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death. [The bill of attainder clause] however, also proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution. ... Our country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal.

Essentially, Congress is proscribed from passing a bill that targets an individual for punishment and doing legislatively what is the domain of the judiciary.

However, just because a bill effectively captures only a single individual, that does not make it a bill of attainder. The bill at issue in Nixon, despite applying only to Richard Nixon, "plainly must be held to be an act of nonpunitive legislative policymaking." Congress's desire was to "safeguard the 'public interest in gaining appropriate access to materials of the Nixon Presidency which are of general historical significance.'" Further, it was not even found to be "punishment" because the bill provided for "just compensation."

The Court in Nixon announced three ways to determine whether a bill was an unconstitutional bill of attainder:

  1. a historical inquiry (p. 473) - whether the deprivation or disability falls within a "ready checklist" of punishments "so disproportionally severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall within the proscription"
  2. a functional inquiry (p. 475) - whether a novel burden, when viewed "in terms of the type and severity... reasonably can be said to further nonpunitive legislative purposes"
  3. a motivational inquiry (p. 478) - whether the legislative record "evinces a congressional intent to punish"

More info is at the Constitution Annotated:

  • Couldn't Congress trivially bypass that clause by, instead of ordering that John Doe be imprisoned for twenty years, making "being John Doe" a crime punishable by twenty years in prison and having this law enforced by a regular trial?
    – Someone
    Commented Jan 17, 2023 at 22:41
  • 1
    @Someone No, such a law would probably be found to violate the fifth amendment guarantee of Due process. It might also be found to be a Bill of attainder. It eould also violate the guarantee of Equal protection of the Laws. Commented Jan 18, 2023 at 1:02

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