State Bills of Attainder

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Article I, Section 10, Clause 1:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

A bill of attainder is legislation that imposes punishment on a specific person or group of people without a judicial trial.1 The Constitution includes two separate clauses respectively banning enactment of bills of attainder by the federal government and the states.2 The Supreme Court has interpreted the federal and state bill of attainder prohibitions as having the same scope.3

The Supreme Court applied the constitutional prohibition on state bills of attainder in a Reconstruction-era case, Cummings v. Missouri.4 That case involved a post-Civil War amendment to the Missouri constitution that required persons engaged in certain professions to swear an oath that they had never been disloyal to the United States.5 The Court held that the purpose and effect of the challenged provision was to punish a group of individuals who had been disloyal to the United States by effectively permanently excluding them from the covered professions.6 Based on that holding, the Supreme Court invalidated the provision as an unconstitutional bill of attainder.7

In Drehman v. Stifle, the Supreme Court rejected a bill of attainder challenge to another provision of the Missouri constitution that barred civil suits against individuals for actions taken under federal or state military authority during the Civil War.8 The Court concluded that the law did not impose punishment on those who might want to file such suits: “If not the opposite of penal, there is certainly nothing punitive in its character. It simply exempts from suits . . . those who might otherwise be harassed by litigation and made liable in damages.” 9

The Supreme Court has also rejected bill of attainder challenges to state and local rules imposing employment qualifications, as long as those employment qualifications were not punitive. For instance, in Garner v. Board of Public Works, the Supreme Court considered bill of attainder challenges to a provision of the Charter of the City of Los Angeles barring from public employment any person who within the last five years had been affiliated with a group that advocated the forceful overthrow of the government, and a city ordinance requiring public employees to state whether they had ever been members of the Communist Party.10 The Court upheld both provisions, holding that a bill of attainder must inflict punishment, and the Court was “unable to conclude that punishment is imposed by a general regulation which merely provides standards of qualification and eligibility for employment.” 11 Similarly, in De Veau v. Braisted, the Supreme Court rejected a bill of attainder challenge to a state law that prevented any person who had been convicted of a felony and had not been pardoned from serving as an officer or agent for certain labor organizations.12 A plurality of the Court held that the law “embodies no further implications of appellant’s guilt than are contained in his . . . judicial conviction; and so it manifestly is not a bill of attainder.” 13

The state Bill of Attainder Clause is part of a single sentence of the Constitution that provides, “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.” 14 In Fletcher v. Peck, Chief Justice John Marshall stated that those restrictions on state legislative power “may be deemed a bill of rights for the people of each state.” 15 The Supreme Court has held that the state Ex Post Facto Clause16 and the Contract Clause,17 also located in Article I, Section 10, Clause 1, apply only to legislative action and do not apply to judicial decisions.18 The Court has not expressly considered whether the state Bill of Attainder Clause similarly excludes judicial action, but because it is located in the same provision barring states from “pass[ing]” prohibited laws, it is likely the Court would interpret this clause in the same way.

1: See, e.g., Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977).
2: For the prohibition on federal bills of attainder, see U.S. Const. art. I, § 9, cl. 3. For discussion of the prohibition on federal bills of attainder and further information on the historical roots of the federal and state Bill of Attainder Clauses, see ArtI.S9.C3.1 Historical Background on Bills of Attainder.
3: See, e.g., Nixon, 433 U.S. at 468–76. In Nixon, the Court cited Cummings v. Missouri, 71 U.S. 277 (1866), a case involving the state Bill of Attainder Clause, to support its application of the federal Bill of Attainder Clause.
4: 71 U.S. 277 (1866). In an earlier case, the Supreme Court considered a challenge to a Georgia statute enacted before the federal Constitution was ratified that punished treason through banishment and confiscation of property without a judicial trial. Cooper v. Telfair, 4 U.S. 14, 14–15 (1800). A former resident of Georgia living abroad who had allegedly supported the British during the Revolutionary War argued that the statute violated the Georgia state constitution, which did not expressly bar enactment of bills of attainder. Id. at 16–17. The Court declined to strike down the law. Id. at 19. Justice William Paterson opined, “the power of confiscation and banishment does not belong to the judicial authority, whose process could not reach the offenders: and yet, it is a power, that grows out of the very nature of the social compact, which must reside somewhere, and which is so inherent in the legislature, that it cannot be divested, or transferred, without an express provision of the constitution.” Id. (opinion of Paterson, J.).
5: Id. at 280.
6: See id. at 320 (The oath requirement “was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment, and that for many of them there was no way to inflict punishment except by depriving the parties, who had committed them, of some of the rights and privileges of the citizen.” ).
7: Id. at 325–29. In a related case, Ex parte Garland, the Court applied its reasoning in Cummings to strike down a similar federal law. 71 U.S. 333, 377–78 (1866). For additional discussion of Cummings and Garland, see ArtI.S9.C3.1 Historical Background on Bills of Attainder. See also Pierce v. Carskadon, 83 U.S. 234, 239 (1873); cf. Klinger v. Missouri, 80 U.S. 257, 262 (1872) (holding, in a challenge to a loyalty oath for jurors, that it would have raised constitutional concerns if a juror was excluded solely for past conduct, “simply because he had sympathized with or aided the rebellion during the war,” but that it was permissible to exclude a juror who “also refused to take [the oath] because he was still a more bitter rebel than ever, [because] the avowal of such a feeling was inconsistent with the upright and loyal discharge of his duties” ).
8: 75 U.S. 595, 598 (1869).
9: Id. at 601.
10: 341 U.S. 716, 718–19 (1951).
11: Id. at 722. See also Hawker v. People of New York 170 U.S. 189, 198–200 (1898); Konigsberg v. State Bar of California, 366 U.S. 36, 47 n.9 (1961). Loyalty oaths in public employment, particularly those premised on political affiliation, have sometimes also been challenged under the First Amendment. See Garner, 341 U.S. at 719–21 (noting that “Congress may reasonably restrict the political activity of federal civil service employees” to protect the integrity and competency of the service, and holding that “a State is not without power to do as much” ); see also, e.g., Keyishian v. Bd. of Regents, 385 U.S. 589, 606 (1967) (holding that university professors could not be dismissed based on their refusal to swear that they had never been members of the Communist party, as mere “membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis for exclusion from such positions” ).
12: 363 U.S. 144, 160 (1960) (plurality opinion). Justice William Brennan concurred, stating in part that the challenged provision “does not deny due process or otherwise violate the Federal Constitution.” Id. at 161 (Brennan, J., concurring).
13: Id. at 160 (plurality opinion).
14: U.S. Const. art. I, § 10, cl. 1.
15: 10 U.S. 87, 138 (1810).
16: See ArtI.S10.C1.5 State Ex Post Facto Laws.
17: See ArtI.S10.C1.5 State Ex Post Facto Laws.
18: E.g., Frank v. Mangum, 237 U.S. 309, 344 (1914) ( “the constitutional prohibition: “No state shall . . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts” . . . is directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts” ); see also Ross v. Oregon 227 U.S. 150, 161 (1913); Moore-Mansfield Constr. Co. v. Elec. Installation Co., 234 U.S. 619, 624 (1914).