The Odd Clauses (21 page)

Here's another possibility. What if the government decided to create a class of biologically superior citizens by funding and then selectively distributing certain types of genetic services (cloning, organ transplants, “Nobel Prize Sperm Banks,” and who knows what other sci-fi possibilities there might be) to those who could afford to pay enormous sums? Would this have the effect of producing a “noble” class of citizens that would be able to pass down their advantages from generation to generation? Should the title of nobility clauses have anything to say about this?

Richard Delgado, one of the nation's most prominent and creative legal scholars, considered this question back in the mid-1980s, and argued that courts might use the clauses to stop such practices. According to Delgado, distribution of certain biological benefits by the government to wealthy individuals might create “a rapid, drastic, and probably irreversible widening of the gap between society's haves and have nots,” since “[t]he beneficiaries would receive a substantial and much-desired benefit, the effects may be long-lasting, and the recipients could come to be viewed as naturally and deservedly superior.” The equal-protection clause might not be sufficient to stop the practice, because at least thus far, the government is allowed to distinguish among people on the basis of their wealth. Perhaps the title of nobility clauses, following in the footsteps of the equal protection clause's sudden emergence from nowhere in 1954, would have to step up, grow a neck, become a giraffe, and save us from ourselves. Wouldn't it be something if one of our Constitution's odd clauses was the only obstacle standing in the way of an American
Brave New World?

No Bill of Attainder . . . shall be passed [by Congress].

Article I, Section 9

No State shall . . . pass any Bill of Attainder.

Article I, Section 10

Consider the following three stories from recent years:

After the Supreme Court held in 2006 that the Bush administration could not try “enemy combatants” in military tribunals created solely through executive order, Congress passed a statute establishing “military commissions” and providing that the president could try “alien unlawful enemy combatants” in front of them. Under the statute, these commissions have some of the procedural protections of so-called “real” courts, but not all of them. For instance, while the defendant, unlike with Bush's tribunals, does have the right to attend commission proceedings, the government may introduce “evidence” (here, imagine that I'm making grotesquely exaggerated quote marks with my fingers) like hearsay and statements obtained from the defendant by coercion—that
judges generally do not allow in real courts. Guantanamo detainees like Salim Ahmed Hamdan (Bin Laden's personal driver) and Khalid Sheikh Mohammed brought all sorts of constitutional challenges to the statute in front of both the commissions themselves and real courts. Among other things, these detainee-defendants argued that Congress, by naming a class of people (alien unlawful enemy combatants) and authorizing them to be tried in front of commissions with limited procedural protections, had violated the Constitution's ban on bills of attainder (“attainder” is an old English word meaning “taintedness”).

In 2009, following a year in which the insurance giant AIG posted the all-time biggest loss in corporate history and then received $182 billion in government bailout money, the company announced that it was awarding nearly $200 million in bonuses to its traders so they could buy fancy cheese and Jaguars. The country went ballistic. President Obama called the move an “outrage.” Republican senator Chuck Grassley urged the company's officers to do as the Japanese do in such situations—bow and apologize, and then maybe commit suicide. Shortly after the company's announcement, the House of Representatives, by a wide margin, passed a law that would have imposed a 90 percent tax on most bonuses issued by companies, like AIG, that had received over $5 billion in government bailouts. Critics of the proposal cited a variety of policy and constitutional objections to the tax. Among other things, these commentators argued that Congress, by authorizing a gigantic tax on a specific group of people, had violated the Constitution's ban on bills of attainder.

In the closing years of the last century, executives at the Association of Community Organizations for Reform Now, better known as ACORN, covered up the fact that the brother of the group's founder had embezzled almost a million dollars from the organization. When this became public
the odd clauses knowledge in 2008, it was only the beginning of ACORN's troubles. Allegations surfaced that ACORN, which received about 10 percent of its operating funds from the federal government, had engaged in voter fraud, tax law violations, and other dastardly activities. The group hit rock bottom in 2009, when hidden-camera videos showed ACORN employees in Baltimore supposedly explaining to a prostitute and her pimp how they could set up their business to evade IRS scrutiny. Not cool. Congress responded to ACORN's difficulties by providing that no federal agency could give any money to “ACORN, or any of its affiliates, subsidiaries, or allied organizations.” ACORN then sued the government, claiming that by singling out the organization for special negative treatment under its appropriation laws, Congress had violated the Constitution's ban on bills of attainder.

According to the Supreme Court, “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” In which of the three just-described scenarios, if any, did Congress enact a forbidden bill of attainder?

The Constitution, as it reads today, is downright lousy with protections for individual liberty. You can hardly swing a cat around the document without hitting one. The Constitution protects our freedom to speak freely, to practice the religion of our choice, and to associate with whomever we want. It keeps the police from searching us unreasonably and requires the government to provide all sorts of procedural protections—the right to a lawyer, for instance, and to confront hostile witnesses—before it can convict us of a crime. It says that before the state takes away our property or liberty,
we must be given notice and some kind of a hearing, aka “due process of law.” Hell, the Constitution might even protect our God-given right to fire off a few rounds of an automatic machine-gun.

If you look closely, however, you will see that almost all of these procedural protections are located in the Bill of Rights—the first ten amendments to the Constitution, added as a group in 1791. The original Constitution contains very few provisions that explicitly protect individual freedoms. Many federalists, the Constitution's original supporters, saw no need for such provisions, figuring that the document's many structural provisions (separating the branches, separating federal power from state power) were already adequate to protect individual liberties. The federalists also apparently thought that the Constitution's limited grant of power to the federal government made it unlikely that individual freedoms would be in danger. After all, these supporters argued, nothing in the Constitution affirmatively gives Congress or the president the power to infringe anyone's liberty, so what's to worry? Fortunately, when it became clear that the Constitution's early success was going to turn on the support of a sufficient number of anti-federalists, most of whom supported a bill of rights, the skeptical framers gave in and agreed to put together a nice little package of individual liberties to tack on to the original document.

The original Constitution does, however, contain a couple of important, if quirky, liberty-protecting clauses. There are the “ex post facto clauses” of Article I, for example, which make it unconstitutional for either the federal or state governments to inflict retroactive punishment. In other words, if you do something today that's not currently illegal—say, texting while riding a motorcycle—the government cannot pass a law tomorrow outlawing motorcycle texting and then punish you for having broken it yesterday. You need to be on notice that you can be punished for something before the
government can punish you for it. That's a handy protection to have in the Constitution, and it says something about the propensity of eighteenth-century legislatures to inflict retroactive punishment that the framers singled it out as one of the very few liberty-depriving practices that they forbade in the original Constitution.

Of course, as with all constitutional clauses (remember the discussion of the seemingly simple “you have to be thirty-five years old to be president” clause from chapter 5), the ex post facto clauses raise some difficult interpretive questions. For example, what exactly counts as “punishment”? Putting someone in prison to exact retribution for a terrible crime is clearly punishment, but what about putting someone deemed irrevocably dangerous into some kind of civil confinement situation after they are released from prison as a way of protecting potential victims? Many states have laws that do this sort of thing to sex offenders, and even though those laws were passed, in some cases, after the offenders had been convicted for their sex offenses, the Supreme Court has held that they do not inflict punishment in violation of the ex post facto clauses. I happen to think that's crazy, and not just because this was the position I was assigned to take in my law school moot court competition fifteen years ago, a tournament that stressed me out so much I had to gulp down a shot of vodka before a particularly nerve-wracking round, but that's the Supreme Court for you. (I'll spare you the story of how one judge during the competition, on a 1–10 scale, gave me a 5 for “appearance.”)

As we will see, this “what is punishment” issue also becomes very important when dealing with the bill of attainder clauses, which are found, not surprisingly, right next to the ex post facto clauses, as in Article I, Section 9:
No Bill of Attainder or ex post facto Law shall be passed.

In sixteenth- through eighteenth-century England, a bill of attainder was a legislative enactment sentencing an individual or a group of individuals to death for committing treason without any kind of judicial trial whatsoever. If you can believe it, receiving one of these bills was even worse than it might sound at first. For one thing, bills of attainder came accompanied by something called a “corruption of blood,” which meant that the state, rather than the individual's heirs, would receive the accused's property after death. Moreover, the death sentence itself tended toward the brutal. No purportedly painless and medicalized lethal-injection procedure for the recipient of a bill of attainder in old England. An apparently typical punishment for men convicted of treason in the eighteenth century:

You are to be drawn upon a hurdle to the place of execution, and there you are to be hanged by the neck, and being alive cut down, and your privy-members to be cut off, and your bowels to be taken out of your belly and there burned, you being alive; and your head to be cut off, and your body to be divided into four quarters, and that your head and quarters be disposed of where his majesty shall think fit.

For God's sake, not the privy-members. Hands off the privy-members!
Incidentally, women convicted of treason were merely “burned with fire until . . . dead.” Anyway, in addition to the bill of attainder, English practice also allowed Parliament to enact a law punishing someone with something a bit lighter than death by disembowelment and decapitation. This kind of law, known as a “bill of pains and penalties,” might have sentenced the unfortunate recipient to some time in prison or banished the person from civil society or even just taken away his or her right to vote. As with bills of attainder, the targeted individual was not entitled to a day in
court or any other procedural protections before the punishment was inflicted.

You might think the American colonies, having revolted against the tyranny of the British, would have immediately done away with legislative punishment, but this was not the case. Indeed, experts claim that bills of attainder were even more popular here around the time of the Revolution than they ever were in England. In 1776 Pennsylvania passed almost five hundred bills of attainder against Tories accused of treason. New York passed a law in 1779 sentencing more than fifty people to death, including two former governors, for having supported King George III, “with Intent to subvert the Government and Liberties of this State.”

The most interesting bill of attainder ever passed by an American colony or state was one from Virginia that was pushed through the legislature by none other than Mister Freedom himself, Thomas Jefferson. In the summer of 1777, an English sympathizer named Josiah Philips and a team of bandits were wreaking terror on the populations of Princess Anne and Norfolk counties in southeastern Virginia. According to one Virginia lawyer, writing in 1910, Philips

carried on a species of warfare against the innocent and defenseless, at the bare mention of which humanity shudders. Scarcely a night passed without witnessing the shrieks of women and children, flying by the light of their own burning houses, from the assaults of these merciless wretches; and every day was marked by the desolation of some farm, by robberies on the highway, or the assassination of some individual whose patriotism had incurred the displeasure of this fierce and bloody leader of outlaws.

Unfortunately for the innocent and defenseless, the government had no success in capturing Philips and his gang.
The group took cover in a place called Dismal Swamp (now the Great Dismal Swamp National Wildlife Refuge) that was just too difficult for the government to penetrate, and there were also lots of Tories in the area who were willing to hide the bad guys. In May of 1778, Patrick Henry, Virginia's governor, asked the state legislature to pass a bill of attainder against Philips to aid with his capture and punishment. The bill that ended up passing the legislature was written by Jefferson, who at the time was a legislative delegate from Albemarle County. The law gave Philips until July 1 to report to the authorities or else be “convicted and attained of high treason, and shall suffer the pains of death.” Not only that, but Jefferson decided to basically deputize the entire population as officers of the state, making it legal for anyone who came across Philips to kill him and his buddies on the spot: “
Be it further enacted,
That from and after the passage of this act, it shall be lawful for any person, with or without orders to pursue and slay the said Josiah Philips, and any others who have been of his associates or confederates.”