Bill of Attainder - Saturday Evening Review

Article I section 9 of the Constitution (not the First Amendment as some seem to believe) provides: “No bill of Attainder or ex post facto Law shall be passed.”

Given all the discussion of bills of attainder recently in connection with Congressional attempts to tax AIG bonuses, this Saturday evening I turned to Mark Strasser's article, Ex Post Facto Laws, Bills Of Attainder, And The Definition Of Punishment: On DOMA, The Hawai'i Amendment, And Federal Constitutional Constraints, 48 Syracuse L. Rev. 227 (1998). 

Strasser helpfully discusses the historical context.  In Great Britain, “Parliament would pass statutes in which one or more specific individuals were sentenced to death for allegedly having plotted against the government.”  Bills of Pains and Penalties included lesser punishments such  “imprisonment, banishment, and the punitive confiscation of property by the sovereign.”   Colonial governments passed both types of bills, also adding a third type: “a legislative enactment barring designated individuals or groups from participation in specified employments or vocations,”  often imposed “against those legislatively branded as disloyal.”   Strasser convincingly argues that judicial interpretations of the bill of attainder clause prohibit all three types of legislation.

He then mounts an argument that DOMA – the Defense of Marriage Act – is unconstitutional as a bill of attainder.  He contends that if bills of attainder can be defined as specifically identifying “persons or groups  who will be deprived of a right as a kind of punishment,”  then DOMA’s denial of tax and other benefits to same-sex couples  is a kind of punishment based on disapproval for the actions of same-sex couples, i.e., their homosexuality.

Strasser argues:

The refusal to extend federal recognition to same-sex marriages might seem to be motivated by a legitimate reason, namely, saving money.  However, as Justice Stevens pointed out in his Bell dissent, legitimate reasons can be offered in at attempt to justify patently unconstitutional measures. If Congress were really interested in saving money, it is surprising that the only valid marriages which it would choose not to recognize for federal purposes would be those involving same-sex partners, since there is no reason to think that such marriages would be more of a drain on the Treasury than other marriages. A more plausible reason is that the members of Congress and many of their constituents do not approve of such marriages and do not wish to have tax dollars used to support them.  Yet, it is simply a misunderstanding of the Constitution to assume that Congress can extend or withdraw tax benefits as it sees fit . . . . many members of Congress recognized that DOMA was “a mean-spirited form of . . . legislative gay-bashing.” . . . . Ironically, by so clearly pandering to their constituents, many members of Congress made their punitive intent plain and made even more clear that DOMA implicates Bill of Attainder protections.

Strasser’s decade-old argument regarding DOMA does put the AIG taxing scheme in a new light, although not necessarily an unconstitutional light.  DOMA, of course, has handily survived constitutional attacks.

RR