No Bill of Attainder . . . shall be passed [by Congress].
Article I, Section 9
No State shall . . . pass any Bill of Attainder.
Article I, Section 10
Consider the following three stories from recent years:
After the Supreme Court held in 2006 that the Bush administration could not try “enemy combatants” in military tribunals created solely through executive order, Congress passed a statute establishing “military commissions” and providing that the president could try “alien unlawful enemy combatants” in front of them. Under the statute, these commissions have some of the procedural protections of so-called “real” courts, but not all of them. For instance, while the defendant, unlike with Bush’s tribunals, does have the right to attend commission proceedings, the government may introduce “evidence” (here, imagine that I’m making grotesquely exaggerated quote marks with my fingers) like hearsay and statements obtained from the defendant by coercion—that judges generally do not allow in real courts. Guantanamo detainees like Salim Ahmed Hamdan (Bin Laden’s personal driver) and Khalid Sheikh Mohammed brought all sorts of constitutional challenges to the statute in front of both the commissions themselves and real courts. Among other things, these detainee-defendants argued that Congress, by naming a class of people (alien unlawful enemy combatants) and authorizing them to be tried in front of commissions with limited procedural protections, had violated the Constitution’s ban on bills of attainder (“attainder” is an old English word meaning “taintedness”).
In 2009, following a year in which the insurance giant AIG posted the all-time biggest loss in corporate history and then received $182 billion in government bailout money, the company announced that it was awarding nearly $200 million in bonuses to its traders so they could buy fancy cheese and Jaguars. The country went ballistic. President Obama called the move an “outrage.” Republican senator Chuck Grassley urged the company’s officers to do as the Japanese do in such situations—bow and apologize, and then maybe commit suicide. Shortly after the company’s announcement, the House of Representatives, by a wide margin, passed a law that would have imposed a 90 percent tax on most bonuses issued by companies, like AIG, that had received over $5 billion in government bailouts. Critics of the proposal cited a variety of policy and constitutional objections to the tax. Among other things, these commentators argued that Congress, by authorizing a gigantic tax on a specific group of people, had violated the Constitution’s ban on bills of attainder.
In the closing years of the last century, executives at the Association of Community Organizations for Reform Now, better known as ACORN, covered up the fact that the brother of the group’s founder had embezzled almost a million dollars from the organization. When this became public the odd clauses knowledge in 2008, it was only the beginning of ACORN’s troubles. Allegations surfaced that ACORN, which received about 10 percent of its operating funds from the federal government, had engaged in voter fraud, tax law violations, and other dastardly activities. The group hit rock bottom in 2009, when hidden-camera videos showed ACORN employees in Baltimore supposedly explaining to a prostitute and her pimp how they could set up their business to evade IRS scrutiny. Not cool. Congress responded to ACORN’s difficulties by providing that no federal agency could give any money to “ACORN, or any of its affiliates, subsidiaries, or allied organizations.” ACORN then sued the government, claiming that by singling out the organization for special negative treatment under its appropriation laws, Congress had violated the Constitution’s ban on bills of attainder.
According to the Supreme Court, “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.” In which of the three just-described scenarios, if any, did Congress enact a forbidden bill of attainder?
The Constitution, as it reads today, is downright lousy with protections for individual liberty. You can hardly swing a cat around the document without hitting one. The Constitution protects our freedom to speak freely, to practice the religion of our choice, and to associate with whomever we want. It keeps the police from searching us unreasonably and requires the government to provide all sorts of procedural protections—the right to a lawyer, for instance, and to confront hostile witnesses—before it can convict us of a crime. It says that before the state takes away our property or liberty, we must be given notice and some kind of a hearing, aka “due process of law.” Hell, the Constitution might even protect our God-given right to fire off a few rounds of an automatic machine-gun.
If you look closely, however, you will see that almost all of these procedural protections are located in the Bill of Rights—the first ten amendments to the Constitution, added as a group in 1791. The original Constitution contains very few provisions that explicitly protect individual freedoms. Many federalists, the Constitution’s original supporters, saw no need for such provisions, figuring that the document’s many structural provisions (separating the branches, separating federal power from state power) were already adequate to protect individual liberties. The federalists also apparently thought that the Constitution’s limited grant of power to the federal government made it unlikely that individual freedoms would be in danger. After all, these supporters argued, nothing in the Constitution affirmatively gives Congress or the president the power to infringe anyone’s liberty, so what’s to worry? Fortunately, when it became clear that the Constitution’s early success was going to turn on the support of a sufficient number of anti-federalists, most of whom supported a bill of rights, the skeptical framers gave in and agreed to put together a nice little package of individual liberties to tack on to the original document.
The original Constitution does, however, contain a couple of important, if quirky, liberty-protecting clauses. There are the “ex post facto clauses” of Article I, for example, which make it unconstitutional for either the federal or state governments to inflict retroactive punishment. In other words, if you do something today that’s not currently illegal—say, texting while riding a motorcycle—the government cannot pass a law tomorrow outlawing motorcycle texting and then punish you for having broken it yesterday. You need to be on notice that you can be punished for something before the government can punish you for it. That’s a handy protection to have in the Constitution, and it says something about the propensity of eighteenth-century legislatures to inflict retroactive punishment that the framers singled it out as one of the very few liberty-depriving practices that they forbade in the original Constitution.
Of course, as with all constitutional clauses (remember the discussion of the seemingly simple “you have to be thirty-five years old to be president” clause from chapter 5), the ex post facto clauses raise some difficult interpretive questions. For example, what exactly counts as “punishment”? Putting someone in prison to exact retribution for a terrible crime is clearly punishment, but what about putting someone deemed irrevocably dangerous into some kind of civil confinement situation after they are released from prison as a way of protecting potential victims? Many states have laws that do this sort of thing to sex offenders, and even though those laws were passed, in some cases, after the offenders had been convicted for their sex offenses, the Supreme Court has held that they do not inflict punishment in violation of the ex post facto clauses. I happen to think that’s crazy, and not just because this was the position I was assigned to take in my law school moot court competition fifteen years ago, a tournament that stressed me out so much I had to gulp down a shot of vodka before a particularly nerve-wracking round, but that’s the Supreme Court for you. (I’ll spare you the story of how one judge during the competition, on a 1–10 scale, gave me a 5 for “appearance.”)
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, the 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 enjoy 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.”
I’m not sure what I think about this bill of attainder argument against laws disadvantaging gays and lesbians. I find myself agreeing with New York University’s Rick Hills, who filed a brief on behalf of the plaintiffs in Romer arguing that Amendment 2 violated the equal protection clause. In an article responding to Amar’s bill of attainder clause analysis, Hills (a former student of Amar’s) suggests, among other things, that the Coloradoans who supported and voted for Amendment 2 did not think that they were targeting a closed class of individuals; indeed, one reason they disliked giving rights to gays and lesbians was because they feared these rights would cause more people to “become gay.” Regardless of the nutso-ness of this fear, it does suggest that the supporters of the amendment did not seek to punish a specific, closed set of people through their nasty law, which is the essence of a bill of attainder. More to the point, though, I feel that a judicial decision using the bill of attainder clause to strike down a law like Colorado’s or Nebraska’s would skirt the real issue, which is that gays and lesbians deserve equal treatment under the law. Much better, I think, for the courts to strike down obnoxious laws like Amendment 2 on straightforward equal protection clause grounds. Sometimes a problem as gross as outright discrimination on the basis of sexual orientation deserves to be fed to the constitutional lions.
So, what about the three scenarios from the beginning of the chapter? The Military Commissions Act is probably not a bill of attainder. The argument of many Guantanamo detainees was that the statute punished them by singling them out as a class for a trial without the full range of procedural rights given to most accused criminals. As Khalid Sheikh Mohammed argued in 2008 before a military judge, for instance, “Congress’s creation of a trial system, long after the alleged conduct of these Accused, employing specially-tailored rules of evidence and procedure designed to ensure their conviction, is plainly ‘punishment,’ imposed upon the Accused by legislative enactment without judicial trial.” The argument is mildly plausible, but no judge has ever accepted it, and it is unlikely ever to succeed. For one thing, the military has always had a justice system where defendants are given fewer rights than defendants receive in civilian courts. If singling out Guantanamo detainees for trials with fewer rights is a bill of attainder, then wouldn’t the same thing be true for singling out military personnel for such trials? The Supreme Court has never suggested that the current military system of justice is unconstitutional. And while I’m not a big supporter of giving criminal defendants fewer rights during trial, I don’t think that taking away a right here or there is itself something that has historically or otherwise been considered “punishment.” Thus, I’m not at all surprised that the military judges who ruled on the constitutionality of the Military Commissions Act rejected the bill of attainder argument out of hand. President Obama has announced his intention to try the Guantanamo detainees before real courts rather than the military commissions. Thus, the detainees will likely no longer have any basis to raise the argument, unless Congress forces the president to try them at Gitmo.
The AIG tax-the-bonuses-at-a-gazillion-percent thing is a closer case, and again we will never know what the courts would have said (no such bill was ever enacted into law), but I doubt a statute like the one that passed the House would have been held to be a bill of attainder. Some members of Congress were certainly concerned about the constitutionality of the proposed tax, as were some commentators, but the Court has traditionally been lenient in allowing Congress to do all sorts of things with its tax laws. There’s also a strong argument that the tax would have served the primary function of giving money back to the taxpayers, rather than of punishing anybody. The challengers’ best argument, had the issue ever gone to court, would have been that Congress intended to punish AIG and its employees, as evidenced by statements made by specific members of the legislature (like Senator Grassley’s dim observation that employees should “go commit suicide”). But as some commentators observed, once the whole bill of attainder issue started floating around, members of Congress became a lot more careful in what they said about the purpose of taxing the bonuses, changing their tune from punishment to taxpayer protection. As such, very few (if any) constitutional experts actually thought that taxing the bonuses would be found illegal. Even big pro-private-property libertarians like Richard Epstein of the New York University Law School, who wrote that “any sensible system of limited government” would find the tax proposals unconstitutional, conceded that because of the breadth of the class targeted by the bills and the deference given by the courts to Congress in tax matters, the bill-of-attainder-clause challenge would have resulted in: “No luck.”
Unlike the AIG and Military Commission Act scenarios, the case involving ACORN did go to court. In 2009 a district court judge in New York struck down the law excluding ACORN from federal programs as an unconstitutional bill of attainder, but in 2010 the Second Circuit Court of Appeals reversed and upheld the law. Both courts went through the three-factor test for punishment, but they came to completely different conclusions. The district court found no “valid, non-punitive purpose” for the anti-ACORN law and was put off by some of the anti-ACORN sentiment voiced on the Senate floor, like the one senator who said: “Somebody has to go after ACORN. Madam President, I suggest this afternoon that ‘somebody’ is each and every Member of the Senate.” The court of appeals, however, while conceding that a number of congressmen and -women had said mean things about ACORN during debate and discussion, was not willing to find a punitive intent on the basis of a “smattering” of comments from a “handful of legislators.” The circuit court found that cutting an organization off from discretionary funds was not something that had historically been considered punishment. Putting this finding together with its belief that the law had been motivated by a concern for taxpayer dollars rather than by a thirst for punishment, the reviewing court found that this was not a bill of attainder.
In the Brown case, the Supreme Court observed that the bill of attainder clause, a “bulwark against tyranny,” “was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.” I’ve used the clause as an illustration of how the Constitution protects liberty, but I could just as easily have used it to illustrate separation of powers, or even, for that matter, congressional powers. The Constitution is an interconnected document, both in its particular provisions and its broad themes. We’ve seen examples of this interconnectedness throughout the book. Is the original-jurisdiction clause about judicial power, or states’ rights? Are the title of nobility clauses about executive power, or equality? Speaking of equality, are the clauses setting out qualifications for public office primarily about that value, or are they about promoting democracy? Of course, the answer to each of these questions is both. Constitutional clauses, odd or not, serve several purposes and hold the document (and thus the government) together as an organic whole. In this way, the Constitution is much like the world’s web of ecosystems, which the ecologists will tell you are all intertwined and intermingled in complicated and important ways. Eradicate one species here and see what happens to all sorts of other species somewhere else. It’s enough to make one wonder: dear sweet Mother of God, will these analogies to the animal kingdom never end?