Bill of Attainder

The term “Bill of Attainder” refers to the act of declaring a group of people guilty of a crime, and punishing them for it, usually without a trial. Officials have used bills of attainder to strip individuals of everything from their property to their lives. For example, bills of attainder caused the famous executions of several people by the English king, Henry VIII. To explore this concept, consider the following Bill of Attainder definition.

Definition of Bill of Attainder


  1. A law that sentences a person, or group of people, to suffer punishment for a crime without being able to exercise their judicial rights in defending themselves.


1425-1475       Late Middle English

Why the U.S. Constitution Forbids Bills of Attainder

The U.S. Constitution forbids Bills of Attainder in Article 1, Sections 9 and 10. The ban extends to both the state and federal governments. The fact that the ban extends to the states shows just how important those who drafted the Constitution believed this issue to be. There are two main reasons why the U.S. Constitution Forbids Bills of Attainder:

  1. The ban reinforces the separation of powers by forbidding the legislative branch of government from engaging in judicial or executive acts.
  2. The ban supports the concept of due process, one of the rights attributed by the Constitution to every American citizen.

Each individual state’s constitution also forbids the issuance of a Bill of Attainder. For example, Bill of Attainder is forbidden by Wisconsin’s constitution in Article 1, Section 12, where it 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.”

Separation of Powers

The separation of powers provision divides the U.S. government into three branches: legislative, executive, and judicial. The idea is that, in order for American citizens to enjoy the fullest extent of their liberty, these branches must work together, but have their own functions. The responsibilities of each branch are as follows:

  • Legislative – This branch passes laws, and budgets the money necessary to operate the government.
  • Executive – This branch, which includes the President, is responsible for enforcing the laws that the legislative branch passes.
  • Judicial – This branch, which includes courts and judges, interprets the Constitution and applies the law accordingly.

The powers of all three branches intentionally overlap to promote the objective of all three branches working together to achieve a common goal. The division of powers also promotes the concept of “checks and balances.” Checks and balances refers to the branches keeping each other in line so that one branch does not enjoy too much power.

This is why the President has the power to veto a bill, but Congress has the power to override the President’s veto. It’s a way for the President to keep the legislative branch in line, and for Congress to keep the President in line.

Due Process

The right to due process appears in the Fifth and Fourteenth Amendments to the Constitution. Due process refers to a person’s right to fair treatment by the judicial system. Due process is in place to protect the rights of American citizens.

For instance, the denial of a speedy trial for a person accused of a crime is a violation of his due process rights. He might sit for months, or even years, in a jail cell without having the chance to defend himself. Due process also protects citizens from physical abuse or other unjust acts committed by police, judges, and other law enforcement authorities.

Bill of Attainder Example Involving President Nixon

An example of Bill of Attainder appearing before the Supreme Court involves the late former President, Richard Nixon, who resigned in August of 1974. Upon Nixon’s resignation, the government still had in its possession over 40 million pages of documents and nearly 900 reels of tape-recorded conversations, along with other sensitive materials.

Nixon entered into an agreement with the Administrator of General Services Administration, wherein the parties agreed that Nixon would store these items in a location near his California home. The agreement also stated that Nixon could destroy any of these items if he so chose, after certain specified time periods.

Normally, items like these belonged to the president as his personal property without question. However, in light of the Watergate scandal that occurred a few years earlier, times had changed. Almost as soon as the parties entered into this agreement, President Ford signed the Presidential Recordings and Materials Preservation Act into law.

Seizing the President’s Materials

The Act called for the Administrator to seize Nixon’s materials, and assign government archivists to go through them. The archivists were to separate personal materials from those that had historical value. The latter, the archivists were to make available for future judicial proceedings. The Act also permitted the public to eventually access these materials.

Nixon’s Challenge

The day after President Ford signed the Act, Nixon was in district court challenging its constitutionality. Nixon claimed the Act violated several rights, including:

  • The separation of powers
  • His presidential privilege, privacy, and First Amendment rights
  • The Bill of Attainder clause of the Constitution

Nixon asked for both declaratory and injunctive relief. The district court dismissed the complaint, however, holding that Nixon’s challenges to the Constitution were without merit. The Court held that archivists had done something similar in the past with past Presidents’ materials, and that no confidentiality was ever breached, so there was nothing for Nixon to worry about.

Supreme Court Considerations

The case ultimately went to the U.S. Supreme Court. There were five questions the Court then faced and had to answer:

  1. Did the Presidential Recordings and Materials Preservation Act violate the separation of powers?
  2. Did the Act violate presidential privilege?
  3. Did the Act violate Nixon’s privacy?
  4. Did the Act violate Nixon’s First Amendment rights?
  5. Did the Act violate the Bill of Attainder Clause?

The Court’s Decision

Ultimately, the Court decided, on all five questions and in a rather lengthy decision, that the answer was no. In reference to the violation of the Bill of Attainder clause, the Court wrote, in part:

“The Act does not violate the Bill of Attainder Clause. (Citation omitted.)

(a) However expansive is the prohibition against bills of attainder, it was not intended to serve as a variant of the Equal Protection Clause, invalidating every Act by Congress or the States that burdens some persons or groups but not all other plausible individuals. While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all. (Citation omitted.)

(b) The Act’s specificity in referring to appellant by name does not automatically offend the Bill of Attainder Clause. Since, at the time of the Act’s passage, Congress was only concerned with the preservation of appellant’s materials, the papers of former Presidents already being housed in libraries, appellant constituted a legitimate class of one, and this alone can justify Congress’ decision to proceed with dispatch with respect to his materials while accepting the status of his predecessors’ papers and ordering in the Public Documents Act the further consideration of generalized standards to govern his successors. (Citation omitted.)

(c) Congress, by lodging appellant’s materials in the GSA’s custody pending their screening by Government archivists and the promulgation of further regulations, did not “inflict punishment” within the historical meaning of bills of attainder. (Citation omitted.)

(d) Evaluated in terms of Congress’ asserted proper purposes of the Act to preserve the availability of judicial evidence and historically relevant materials, the Act is one of nonpunitive legislative policymaking, and there is no evidence in the legislative history or in the provisions of the Act showing a congressional intent to punish appellant. (Citation omitted.)”

Related Legal Terms and Issues

  • Declaratory Relief – A court judgment that defines the legal relationship between parties and their legal rights.
  • Injunctive Relief – A court-ordered act or prohibition against an act or condition.