Trials for Traitors: Ancient Inspirations of the Constitution's Bill of Attainder Clauses

This paper argues Founding-era Americans’ understanding of attainder was informed by their knowledge of legal concepts corresponding to attainder in ancient history. Attainder is a summary legal process involving targeted punishment without trial. Legal forms corresponding to attainder appeared in the law of the Roman Republic and other ancient states, played a pivotal role in medieval and early-modern English law, and were employed by several American colonies until attainder was ultimately prohibited by the Constitution. The Founders’ rejection of attainder is thus not dispositively explained by common law heritage (as bills of attainder were attempted in England into the nineteenth century) or colonial custom, given various states’ use of the bills. The choice to break from long-standing tradition to ban bills of attainder therefore demands further explanation, and this paper contends this legal rupture was inspired at least in part by the Founders’ awareness of the connection between ancient and contemporary forms of attainder. The ban was thus motivated by the Founders’ desires to avoid particular Roman legal practices that allowed for the punishment of citizens suspected of treason without trial, and to actualize political values advocated by ancient political theorists. This paper’s demonstration that ancient law is relevant to understanding the bill of attainder clauses suggests an expanded application for the clauses, which should properly forbid contemporary government programs such as the No Fly List and targeted drone strikes in the Middle East.