Defining Bills Of Attainder

In 1986 I happened upon a phrase in the Constitution, in Article 1, Section 9, Paragraph 3, which stated, "No Bill Of Attainder or Ex-post Facto Law, shall be passed." I was reasonably secure I knew what an ex-post facto law was, but I had no idea what a bill of attainder was. I am a Certified Linguist, and the prospects that came about from finding out what a bill of attainder really is, have led me into 1997, as the director of a program which is associated with Libertarians and others called the Bill Of Attainder Project.

As I stated I am a Certified Linguist. Linguists write your encyclopedias, dictionaries, and different texts which define things. They do a lot more but one of the fundamental things they do is define things. Linguists are usually very pleasant, cerebral people who really enjoy studying the aspects of language. They are scientists,and do what scientists do - they measure things.

For the linguist as well as the scientist if they need to know if something is a yard long, it is put to the test of 36 inches, and three feet, and however many other measurement instruments and scales "is" as needed to safely establish the yard. Proving what a bill of attainder really is, was as simple as holding up a yardstick. The yardstick is a little different than the thirty-six inch kind, but very simple. It works along the lines of, "If it looks like a duck, walks like a duck, quacks like a duck".....that simple, you define the "thing" by describing its essential parts. The law does not do this. There is no complete applicable definition of bill of attainder in the law. Americans deserve to have "Bill Of Attainder" defined into the law, in a way that actually protects their rights, and will not let the legal community and the legislature use the law to plunder.

To establish what a bill of attainder really is requires a trip to the local public library. You saunter in and you start looking up bill of attainder, and attainder in every dictionary, and encyclopedia you can lay your hands on. I picked a very small library, and with good reason.* I'd still be at some of them heaping up definitions and descriptions to this day. All you need to establish a definition is enough sources of your target "thing" to give it a complete picture. It is simple comparative analysis of establishing the basic elements of which your target "thing" is composed. Line up your collection of definitions and sources to see what they have in common. What my collection of definitions told me a bill of attainder was: "A Bill Of Attainder" is a law, or legal device used to outlaw people, suspend their civil rights, confiscate their property, or put them to death, or punish them without a trial. Nothing anyone has sent me has changed any of the definition I have put forth.

I contend the original intent of the bill of attainder mandates were to prevent laws that punish without trial, suspend civil liberties, and confiscate property. The doctrine of "pains and penalties" is included as just as much a bill of attainder as any other part of the mandate. A punishment less than death without a trial is considered to be a bill of pains and penalties. A bill of attainder is more than one thing and they are almost different things. This is why the elements of what a bill of attainder is, must be included in the law to understand the entirety of the phrase bill of attainder. The continuity of the Constitution has been weakened without this information included in the law. It is certain that the original intention of the Constitution was to protect people from the tyranny Americans had just suffered from the British Empire. Today's asset forfeiture is almost the exact tyranny as Americans fought against in the Revolutionary War, and almost all the other wars we have fought. Without bill of attainder defined in the law, the law can ignore the rights Americans are supposed to have. That is what has happened.

The definitions that exist in the law, the U.S.C. ( United States Code) are statements or precedents which are confusing, incomplete, and do not reflect all the rights the mandates were meant to insure. They come from single unrelated cases. They may have even served to detract from the rights the mandates were meant preserve because they only reflect portions of what a bill of attainder actually is. U.S. v. Brown

(1965), U.S. v. Lovett (1946) , and re: Yung See Hee (1888) all qualify the doctrine of pains and penalties as punishment without trial, and inclusive as a bill of attainder. The only statement in the U.S.C. that reflects most of the original intention of the mandates is from Cummings v. Missouri (1867). It states, "A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment."

The preservation of a group or individual's protection of life liberty and property have fallen by the wayside in American law. Any prosecutor that waves the case, Calero-Toledo in front a judge takes any property he wants, and in some cases without a trial. It has also been ruled in U.S. v Ursery, that it is not a violation of the Double Jeopardy Clause to pursue both criminal and civil punishment in cases arising from the same offense. Further, the Court has allowed the confiscation of property from "innocent owners" without due process.* So much for "any" legislative act, so much for "any" protection at all from the bill of attainder mandates. No matter what relevance the mandates had in our past without the protection from bills of attainder in our law we have been robbed of the civil rights the Constitution was meant to preserve.

It is not the purpose of the Bill Of Attainder Project to raise some long lost Phoenix out of the ashes of our judicial system. The fact is that "goose" has long been cooked. We need a new and fresh start to restore our rights. Bills of attainder need to be defined so the essential elements, and the rights they reflect, are understood by everyone. If the Court has to rule on a case which is suspect of plundering life, liberty, or property, the fact that the law is a bill of attainder, will not go unchallenged if the law is put in place so as to preserve our rights. The Court is a lost cause for establishing these rights, it must be done with legislation.

All of the mentioned properties in our definition of bill of attainder will stay the same if you pile on the research from all the libraries in the nation. The same goes if you want to pile case law on top of that. Pile up all the bill of attainder references you can get your hands on, from history, government and political science, start a class project, create a fire hazard. Your outcome of comparative analysis will be that outlawing, suspension of civil rights, confiscation of property, and punishment without a trial, are the primary elements of bills of attainder. The troubling thing about this discovery is that the current government denies Americans all the rights they are supposed to have to be protected from bills of attainder. We have a Supreme Court that believes it is perfectly all right to let the government plunder the life, liberty, or property of anyone alleged or (outlawed). The growing number of offenses used to take property, and suspend civil rights, numbers over 200 in the federal camp.

Experts are warning Americans that this country's asset forfeiture programs are starting to cause the same social stresses as seen in the days of the Inquisition.* This was never intended to happen in the United States, the government was never supposed to have the right to steal (confiscate) property, or suspend civil liberties. The Fifth Amendment clearly states, "No property shall be confiscated."

It is an absolute fact that the government has enforced the confiscation of property for over 200 years. It is an effect of the practice of outlawing that has prompted the government to enforce these bills of attainder. Some segments of American society have been dedicated to seeing to it that different ethnic groups, especially Native Americans, Irish, African Americans, and others have been suppressed, repressed, and oppressed. It has not always been within the public sympathy to see to it that there are enforced mechanisms in the law to make sure there is equality.

With a major part of the American population dedicated to inequality, and special interests, the advancement of the bill of attainder mandates were put on the sidelines and ignored. America may be evolved enough today to start demanding the rights they are entitled to have. They must understand what their rights are, and in this case what they were meant to be. The Civil Rights Act of 1964 may have made us equal only to the point that we can be equally plundered.

One of the specifics given in many sources about bills of attainder states that a bill of attainder can be administered by verdict. A verdict is rendered in a trial, so the relevance of trial does not negate an action as a bill of attainder. The Congress has no right to pass a bill of attainder; they do it anyway. The courts and police administer them. As long as the courts, congress, and the public condone the confiscation of property or the suspension of civil rights as a fit punishment, American civil liberties are lost. Americans do not realize they give up the essence of their power as a people by giving up their right to private property. That is what has happened and we are starting to see the drastic consequences.

All the provisions in the Constitution that were meant to preserve the right of private property over the right of the government to take property have been abused to the point that there is no protection for private property. The evidence that this was never meant to be is overwhelming. Starting with a quote from Samuel Adams, "Now what liberty is this when property can be taken without permission." Some case law exists that reflects this idea. Cases like, U.S. v Brown, U.S. v Lovett, and Nixon v. U.S., all state the government does not have the right to confiscate property. One can wonder if the opposition in the Nixon case had waved Calero-Toledo in front of the Judge, would President Nixon have lost his rights to private property? Why did "Tricky Dick" get his rights to private property, while the rest of us are plagued with a court and a justice system that can take whatever they have an inclination to? What is worse is how they can justify plundering our life, liberty, and property.

One of the biggest criticisms of the asset forfeiture plague is the use of "personification" to confiscate property. Personification is the idea that things or objects posses the free will and capacity to commit crimes. It is an idea deeply rooted in the practice of witchcraft, the occult, and devil worship. Objects are supposed to get that kind of power from the devil, or a curse. I find it appalling that the Christian community, for the most part, condones this practice by the courts of declaring "things" capable of the free will to commit crimes. I want to hear a car, boat, or house walk in, sit down on the witness stand and testify like "Mr. Ed" the horse, before I will concede that this practice is anything but an evil ploy to steal property. The idea that the American social fabric is suffering from the same social stress as caused in the Inquisition is no exaggeration. The courts are using some of the same terrorist tools as used by Inquisitioners. This was never meant to happen in America. The bill of attainder mandates were meant to keep the horrors of this kind of law from being practiced.

Americans must demand their right to be protected from laws that plunder our lives, liberty, and property. This can be accomplished by demanding that bills of attainder be defined to protect American civil liberties. It is time to define our rights so they cannot be ignored, or abused. Until the basic elements of what a bill of attainder is becomes defined in our law, the legislatures, the courts, and the police will continue to

violate the American rights the Constitution was supposed to provide. Perhaps we as a people need to understand the warning given by James Madison when he stated,

"Do not seperate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."

That is not a quote from the Fifth Amendment.

No, it's an exactly equivalent paraphrase:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law [this means 'pursuant to a court verdict and sentence after a trial,' as a result of which property may be taken by means of a court-imposed fine, or as the result of a judgement for damages]; nor shall private property be taken for public use, without just compensation ["just compensation" was intended to prevent it from properly qualifying as a "confiscation" (a transparent fig-leaf, of course, but that's what they believed)]

The Congress has no right to pass a bill of attainder; they do it anyway. The courts and police administer them.

Neither does the Florida state legislature, for that matter -- under both the U.S. and Florida constitutions. Nonetheless, that body passed "Terri's Law," and Jeb Bush instructed the local and state police to enforce it.

It's inconceivable to me how any such legislation -- whether for overriding the courts, imposing punishments, seizing property, or negating an appointed guardian's vetted judgments -- can be seen as being constitutional. Unless mob demands are, somehow, enough to make it that way.

it should not have been placed in quotes

Oops. I misread your statement (didn't see the 'not.') Sorry about that.

The presence of the double quotes is admittedly strange. The only suggestion I have is that he is used to using double quotes in some linguistic formalism in a way that differs form general usage. See, for example, this reference: On the use of Quotation Marks.

"The Congress has no right to pass a bill of attainder; they do it anyway. The courts and police administer them."

How does "Terri's Law" qualify as a bill of attainder? What right is being abridged? What property confiscated?

Perhaps he is referring to Terri's right to decide to forego 'extraordinary measures' to keep her (or at least her body, depending on whom one believes) alive. The point of contention, in that case, would of course be what her wishes actually were--since they weren't put in writing.

The real issue here, as I see it, is who rightfully has the power to make the final decisions in cases such as Terri's? And is "Terri's Law" an ex-post-facto law, as applied to Terri's case, given that the court decision was already final, and all appeals had been exhausted? Had it been a criminal case, it would have been beyond question that changing the definition of the crime, or the punishment to be meted out, after the case had been finally decided would, ipso facto, have been an ex-post-facto law.

Also, the way the law was tailored to apply to Terri's situation, and the fact that it was clearly targeted at her and her husband, makes it a clear violation of the prohibition against bills of attainder, even using the stilted definition commonly accepted by the courts. This is because Terri has a Liberty right to decide her own fate, and the courts had made a final determination that she was in a vegetative state, and that her wishes were to forego device-supported life as a vegetable. So "Terri's Law," legally speaking, deprives her of her Liberty right to determine her own fate, and control her own body.

The Florida Legislature apparently feels that it's ok to use wrongful means to achieve what it feels is a just end. And it's end may in fact be just--I certainly don't claim to know, one way or another. But the laws and principles that were violated to accomplish this end, if not reversed, will eventually cause far greater harm than can possibly be fairly balanced against the life of one severely brain damaged person.

>> Nonetheless, that body passed "Terri's Law," and Jeb Bush instructed the local and state police to enforce it.

This is a post on Bill's of Attainder. Terri's Law has NO relation to Bills of Attainder whatsoever.

>> It's inconceivable to me how any such legislation -- whether for overriding the courts

There needs to be many more laws that override our out-of-control courts. Further, courts could put a stop to enforcement of RICO, seizure of private property for non-public use, and other terrible evils, but they are as corrupt as the politicians.

"Terri's Law" is a legislative action to overturn the substance of a court decision. (Or, here, a series of them.) It's very much a bill of attainder, taking away the practical effect of the guardianship awarded to Michael Schiavo.

The only effective and just operation of the rule of law, in this sense, is to make the courts subject to the definitions of jurisdiction, offenses, sentences, and procedures as the legislature may direct. But not to have the legislature set aside those decisions. If the latter is practiced -- and that is what bills of attainder do -- the courts may as well not exist, in the ultimate sense.

If legislatures are going to set aside such decisions, we should be as forthright as the British, where a bill can be used for the House of Lords to set aside any court decision. The framers of our Constitution saw the inherent danger of such an arbitrary power, and the hash it made of objective judicial judgments -- and the incentive to create them. Unfortunately, a cyber-mob persuaded the Florida legislature otherwise.

>> It's very much a bill of attainder, taking away the practical effect of the guardianship awarded to Michael Schiavo.

You are perverting the true meaning of a bill of attainder for what appears to be a political motive. Terri Schiavo is no one's property.

>> The only effective and just operation of the rule of law, in this sense, is to make the courts subject to the definitions of jurisdiction, offenses, sentences, and procedures as the legislature may direct. But not to have the legislature set aside those decisions.

Even when those decisions are wrong? Even when they are politically motivated? Your "solution" is no different than the the situation we currently are plagued with.

>> If legislatures are going to set aside such decisions, we should be as forthright as the British, where a bill can be used for the House of Lords to set aside any court decision.

Then why have legislatures? Why pretend this is a government by the people when our elected legislators can be overruled by a judge based on dubious or non-existent constitutional arguments?

Attainder /ateynder/. At common law, that extinction of mcivil rights and capacities which took place whenever a person who had committed treason or felony received sentence of death for his crime.

The effect of "attainder" upon such felon was, in general terms, that all his estate, real and personal, was forfeited. At the common law, attainder resulted in three ways, viz: by confession, by verdict, and by process or outlawry. The first case was where the prisoner pleaded guilty at the bar, or having fled to sanctuary, confessed his guilt and abjured the realm to save his life. The second was where the prisoner pleaded not guilty at the bar, and the jury brought in a verdict against him. The third, when the person made his escape and was outlawed.

In England, by statute 33 and 34 Vict. c.23, attainder upon conviction, with consequent corruption of blood, forfeiture, or escheat, was abolished. In the United States, the doctrine of attainder is now scarecly known, although during and shortly after the Revolution acts of attainder were passed by several of the states. The passage of such bills is expressly forbidden by the Constitution (Art.I, Sec. 9).

Bills of attainder. Such special acts of the legislature as inflict capital punishments upon persons supposed to be guilty of high offenses, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a "bill of pains and penalties," but both are included in the prohibition in the Constitution (Art.I, Sec 9). Losier vs Sherman, 157 Kan.153,138 P.2d 272, 273; State vs Graves, 352 Mo. 1102, 182 S.W.2d 46, 54. See also Bill
Black's Law Dictionary, Fifth Edition 1979

Pretty simple: Deprivation of life and property without trial. But then, I'm no linguini-ist.

Tech Law Journal

Bill of Attainder

Definition: A legislative act that singles out an individual or group for punishment without a trial.

The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed."

"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).

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.

"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." James Madison, Federalist Number 44, 1788.

Supreme Court cases construing the Bill of Attainder clause include:
Ex Parte Garland, 4 Wallace 333 (1866).
Cummings v. Missouri, 4 Wallace 277 (1866).

U.S. v. Brown, 381 U.S. 437 (1965).
Nixon v. Administrator of General Services, 433 U.S.425 (1977).
Selective Service Administration v. Minnesota PIRG, 468 U.S. 841 (1984).
See also, SBC v. FCC

Public Safety or Bills of Attainder?

by Jon Roland*

Introduction

During the 20th century, Congress and state legislatures have adopted a great deal of legislation for the ostensible purpose of public safety, by defining a class of persons considered "dangerous", and making it a crime to for such persons to acquire or possess firearms or ammunition or for other persons to convey firearms or ammunition to them.

At the federal level, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968,[1] containing Title VII, §1202 (a)(1) proscribing the possession of firearms by any person who "has been convicted by a court of the United States or of a State ... of a felony."
Although narrowly decided, the opinions in these cases, especially those of Justice Thomas, create a challenge to the entirety of 18 U.S.C. §§ 921-924, as does the present case of United States v. Emerson, Cr. Act. C:98-CR-103-C, which struck down 18 U.S.C. § 922(g)(8) on the grounds that it violates the Second Amendment. This holding was reversed, and the case remanded, by the Fifth Circuit, but that decision is expected to be appealed to the Supreme Court, if the government pursues it at the trial level.[9]

This article argues that in addition to the other violations of the Constitution of provisions of 18 U.S.C. §§ 921-924, its provisions also violate the Fifth Amendment right of due process, and the prohibition in U.S. CONST. Art. I § 9 Cl. 3 of bills of attainder and ex post facto laws, and rest upon violations by the states of the prohibition in U.S. CONST. Art. I § 10 Cl. 1 of bills of attainder and ex post facto laws.

"We the people are the rightful masters of Congress and the courts, not to overthrow the Constitution, but to overthrow men who pervert the Constitution."
— Abraham Lincoln

Public Safety or Bills of Attainder?
Address:http://www.constitution.org/col/psrboa.htm Changed:6:20 AM on Saturday, December 14, 2002

The campaign to "censure" Clinton fell under the restriction on Bills of Attainder (technically it was a "bill of pains and penalties" considered banned by the same Article of the Constitution).

That was the first I'd heard of it.

Fascinating subject: since all laws involve penalties, it is interesting to subject any of them to analysis as a bill of attainder. Many seem to fail.

Declaring war is a "bill of attainder" ( punishment by the legislature) that is authorized by the Constitution, so perhaps confiscation provides a practical reason to call it a WOD.

"nor be deprived of life, liberty, or property, without due process of law [this means 'pursuant to a court verdict and sentence after a trial,'"

So you're saying that an individual may not be deprived of liberty (jailed) without a court verdict? C'mon.

And if a person can be jailed with good reason prior to a court verdict, then certainly property can be confiscated with good reason prior to a court verdict.

A "not guilty" verdict would, of course, restore both liberty and property.

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