The Rule of Law and the Origins of the Bill of Attainder Clause
![handle is hein.journals/stlr18 and id is 183 raw text is: THE RULE OF LAW AND THE ORIGINS OF THE
BILL OF ATTAINDER CLAUSE
JACOB REYNOLDS*
I. INTRODUCTION
Until recently, modem bill of attainder analysis has been fairly simple
for courts and litigators alike - in order to be considered a bill of attainder,
a law must (1) specify the affected persons; (2) impose punishment; and
(3) lack a judicial trial.1 Furthermore, the case law defining the
appropriate analysis in bill of attainder cases is minimal and simple to
understand: as one recent appointee to the D.C. Circuit has aptly noted,
[t]he Supreme Court's approach to the bill of attainder clause has been
developed in only a handful of decisions.2 It is surprising that such a
historically non-controversial clause of the Constitution has become such a
potent weapon3 in the hands of contemporary litigators.4 However,
within just the last couple of years, litigants have more aggressively
utilized the Constitution's Bill of Attainder Clause in an increasing variety
of cases involving the following issues: petitions of habeas corpus,5 the
invalidation of regulatory schemes,6 housing ordinances,7 the
J.D. Candidate, J. Reuben Clark Law School, Brigham Young University, 2006.
1. Palmer v. Clarke, 408 F.3d 423, 433 (8th Cir. 2005); see also United States v. Lovett,
328 U.S. 303, 315 (1946).
2. T.B.G., Note, Beyond Process: A Substantive Rationale for the Bill of Attainder Clause,
70 VA. L. REV. 475, 476 (1984); see also id. at n.7 (showing that only six cases combined to
create the exhaustive list of reliable bill of attainder jurisprudence as of twenty years ago). Since
this note was written, the Supreme Court has only mentioned bill of attainder in its opinions a
total of twenty times. Of these twenty cases, only the following four discuss bills of attainder
with more than a mere mention of the phrase: Carmell v. Texas, 529 U.S. 513 (2000); Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211 (1995); Landgraf v. USI Film Products, 511 U.S. 244, 267
n.20 (1994); Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 851
(1984). Of course, fewer discuss bills of attainder specifically with any significant focus. See
generally id; Carmell, 529 U.S. 513.
3. Alison C. Carrigan, The Bill of Attainder Clause: A New Weapon to Challenge the Oil
Pollution Act of 1990, 28 B.C. ENVTL. AFF. L. REv. 119 (2000).
4. The assertion here is that the amount of bill of attainder clause claims are dwarfed by
other actions such as second amendment, commerce clause, establishment clause, and ex post
facto actions.
5. See Palmer v. Clarke, 408 F.3d 423 (8th Cir. 2005); Bledsoe v. United States, 384 F.3d
1232 (10th Cir. 2004).
6. Elliott v. Simmons, No. 03-3280, 2004 U.S. App. LEXIS 11168, at **3 n.3 (10th Cir.
June 7, 2004).
7. Shenandoah v. Halbritter, 366 F.3d 89, 90 (2d. Cir. 2004).](ViewImageLocal?handle=hein.journals/stlr18&div=13&collection=&method=preview&ext=.png&size=3)
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The Rule of Law and the Origins of the Bill of Attainder Clause
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