Bill of Attainder Question

[KRC]

Section 9, Clause 3 of the Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.”

 

According to William Rehnquist, “A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.” In U.S. v. Brown, the ruling was as follows: "The Bill of Attainder Clause 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." (U.S. v. Brown, 381 U.S. 437, 440 (1965)).

 

Now, people are making the case that the Schaivo Legislation passed by Congress and signed by the President is unconstitutional based on this clause. I am still struggling with whether this clause pertains specifically to criminal acts, which should be relegated to the judiciary, or whether it is applied to ALL legislation directed at a specific person.

 

James Madison stated the following, "Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community." (Federalist Number 44, 1788).

 

Madison's statement seems to imply that it applies to ALL legislation directed at a specific individual, while Rehnquist and the Brown decision point to "trial and punishment by legislature."

 

Are there any lawyers here who can accurately address this? Which is it?

[Campy]

Lord knows I'm no attorney, but the case you cited says "a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature."

 

I'm not sure I understand where you see a difference between what Madison wrote in the Federalist Papers and the US v Brown case. To me, they both seem to be saying that the legislature can not make judgments of guilt or innocence or right or wrong. They may make laws, but both seem to be in agreement that enforcement of the law should be beyond their reach.

[KRC]

Lord knows I'm no attorney, but the case you cited says "a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." 

 

I'm not sure I understand where you see a difference between what Madison wrote in the Federalist Papers and the US v Brown case.  To me, they both seem to be saying that the legislature can not make judgments of guilt or innocence or right or wrong.  They may make laws, but both seem to be in agreement that enforcement of the law should be beyond their reach.

282141[/snapback]

 

I see your point to some extent regarding Madison and US v Brown, but it still seems like Madison applies more to civil liberties for personal decisions, while US v Brown and Rehnquist apply more to criminal proceedings. If I interpret your post correctly, it seems like you feel that all POV listed apply to trials via legislature, regardless of the content of the case. I still see a distinction, but I could probably be persuaded to see all three in the same light. I am just not there yet.

[Campy]

The English crown had used bills of attainder as recently as the latter half of the nineteenth century as a convenient way to remove political foes from a position of power by killing them and/or removing their title and rank and/or seizing their property. Bills of attainder ensured that the crown's will would be done without the consent of either the courts or that pesky parliamentiary gang of thugs. This, obviously, stood in stark contrast to the ideals of a fledging nation with the desire to give its citizenry the right to life, liberty, and the pursuit of happiness.

 

Therefore, I believe the critical issue on bills of attainder is not whether they were originally applied to civil or criminal cases (they were criminal originally, generally for high crimes such as acts of treason), but that they were deemed unconstitutional because it deprived citizens of "due process" and reduced, if not eliminated, the seperation of powers.

 

I'm by no means an expert, just a history buff who's always (too?) willing to share info, thoughts, and ideas!

[stuckincincy]

I believe that Congress was outside of it's authortity to act on this case. However, for better or worse, they are the voice of the people, and I sincerely hope that they would rein in the courts, which in my view have evolved into a self-serving, self-important autocratic entity. I heartily abhor the current impression that there is a "Wall of Seperation" between the Courts and the other branches, a fiction popularized by the late Hugo Black. He was a terrible human being.

 

Would Congress assert? I wish but I doubt it; they rely on the courts to make decisions of import for them in the past 60 years or so.

[Campy]

He was a terrible human being.

282307[/snapback]

Like Ed?

 

[/dev/null]

is Bill of Attainder like Lawrence of Arabia or Joan of Ark?

[ExiledInIllinois]

is Bill of Attainder like Lawrence of Arabia or Joan of Ark?

282525[/snapback]

 

 

Joan was on the ark? Now we know who Noah was banging on the side!

 

 

Only kidding /dev!