University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship Winter 2016 Bills of Attainder Matthew Steilen University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Legal History Commons Recommended Citation Matthew Steilen, Bills of Attainder, 53 Hous. L. Rev. 767 (2016). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/123 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. ARTICLE BILLS OF ATTAINDER Matthew Steilen* ABSTRACT What are bills of attainder? The traditional view is that bills of attainder are legislation that punishes an individual without judicial process. The Bill of Attainder Clause in Article I, Section 9 prohibits the Congress from passing such bills. But what about the President? The traditional view would seem to rule out application of the Clause to the President (acting without Congress) and to executive agencies, since neither passes bills. This Article aims to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of attainder are best understood as a summary form of legal process, rather than a legislative act. This argument is based on a detailed historical reconstruction of English and early American practices, beginning with a study of the medieval Parliament rolls, year books, and other late medieval English texts, and early modern parliamentary diaries and journals covering the attainders of Elizabeth Barton under Henry VIII and Thomas Wentworth, earl of Strafford, under Charles I. * Associate Professor of Law, State University of New York at Buffalo. E-mail: [email protected]. Samantha Barbas, Guyora Binder, Paul Cavill, Anthony Dick, Laura Ford, Rebecca French, Jean Galbraith, Michael Halberstam, John Hein, Aziz Huq, Krista Kesselring, Fred Konefsky, Meredith Lewis, Tony O'Rourke, Jessica Owley, Rob Steinfeld, Rick Su, Suja Thomas, Jim Wooten, and Even Zoldan commented on earlier versions of this Article, much improving it where I let them. I also benefitted from audiences at the Loyola University of Chicago School of Law Constitutional Law Colloquium and the SUNY Buffalo Law School Public Law Discussion Group, where portions of the Article were presented. Christine Normore, Randy Schiff, and Neil Coffee assisted with translations. Librarians Joe Gerken, Christine George, and Marcia Zubrow made diligent searches of collections of the New York State Library, among other institutions, and I also received fabulous research assistance from my students Seth Hiser and Jesse Pyle, who are largely responsible for the appendix. Research for this Article was supported by a summer faculty research stipend from SUNY Buffalo Law School. 767 768 HOUSTON LAW REVIEW [ 53:3 The Article then turns to America, where it illustrates the influence of English practices in revolutionary New York and Pennsylvania, drawing primarily on legislative records, correspondence, memoirs, and early histories. The Article then leverages this historical research to argue in favor of interpreting the Bill of Attainder Clause to apply to summary legal proceedings conducted by the Executive. TABLE OF CONTENTS I. INTRODUCTION ....................................... 769 II. ATTAINDER IN ENGLAND......................... 774 A. Early English Attainders ................ ..... 776 B. ParliamentaryAttainder in the Modern Period.......... 796 1. Under the Tudors .................. ..... 796 2. Under the Stuarts ........... ............. 804 C. Attainder in English Legal Literature.... ........ 818 1. Coke in the Institutes ........................ 820 2. After Coke......................... 822 III. ATTAINDER IN BRITISH NORTH AMERICA ....... ......... 826 A. New York................................ 831 1. The Attainder of Ethan Allen .......... ..... 832 2. Revolutionary New York .......... ....... 835 3. The New York Constitution of 1777..... ..... 843 4. The Confiscation Act......... ............. 846 B. Pennsylvania..................... ........ 857 1. Revolutionary Pennsylvania........ ............. 859 2. The Pennsylvania Constitution of 1776................ 866 3. The Quaker Banishment........... ........... 873 4. The "Act for Attainder of Divers Traitors"............ 880 IV. UNDERSTANDING THE BILL OF ATTAINDER CLAUSES.......... 889 V. CONCLUSION ........................................ 896 APPENDIX: ENGLISH ACTS OF ATTAINDER AND SIMILAR PROCEEDINGS CITED IN THIS WORK.... ............... 898 2016] BILLS OFATTAINDER 769 The history of Parliament, upon which I am going to touch, is an English heritage, with a remainder to Americans. Legislativepractice to-day in Nebraska and Minnesota can be traced back to early seventeenth-century or late Tudor usages at Westminster. If then Americans sometimes venture upon the interpretationof English institutions,you must be lenient. If you are chary of granting us any legal rights upon your history, you will not, I hope, refuse us some courtesy title in it. -Wallace Notestein, 1924 I. INTRODUCTION What are bills of attainder?1 The familiar answer, endorsed by our Supreme Court, is that bills of attainder are legislative acts that specify an individual or group and impose punishment without judicial process. 2 They are legislative punishments, or legislative judgments-an attempt to use legislative power to accomplish a judicial task. Today there is relatively little legislative punishment, at least at the federal level.3 But while we see few legislative punishments, executive punishments without judicial process are not uncommon. In September 2011, for example, a predator drone strike in Yemen killed an American citizen named Anwar Al-Aulaqi. The Department of Defense and Central Intelligence Agency, which believed Al-Aulaqi posed an imminent threat to national security, had added him to a secret "kill list[]."4 The government maintains other lists as well, including blacklists and watch lists of individuals with suspected ties to terrorism. Individuals on these lists suffer a range of civil disabilities. 5 Naming, listing, and 1. See U.S. CONST. art. I, § 9, cl. 2 ("No Bill of Attainder ... shall be passed."); U.S. CONST. art. I, § 10, cl. 1 ("No State shall ... pass any Bill of Attainder. 2. E.g., United States v. Lovett, 328 U.S. 303, 315-16 (1946). 3. There are some acts that can be plausibly so described. See, for example, the de-funding of the community organization ACORN after allegations of fraud and embezzlement. Anthony Dick, The Substance of Punishment Under the Bill of Attainder Clause, 63 STAN. L. REV. 1177, 1206 (2011). 4. See Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56, 81-82 (D.D.C. 2014) (dismissing Al-Aulaqi's bill-of-attainder claim for lack of legislative action); Complaint at 2-5, Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56 (D.D.C. 2014) (No. 12-1192); see also Marisa Young, Note, Death from Above: The Executive Branch's Targeted Killing of United States Citizens in the War on Terror, 2014 U. ILL. L. REV. 967, 983. Young documents the Obama administration's preference for targeted killing, which has risen, according to her sources, from 42 targeted killings between 2004 and 2008 under President George W. Bush, to 321 strikes, killing 2374 people, under President Obama. Id. at 973-74. 5. See Anya Bernstein, The Hidden Costs of Terrorist Watch Lists, 61 BUFF. L. REV. 461, 466-73 (2013) (discussing the lack of incentive to address watch-list "false positives"); Aaron H. Caplan, Nonattainderas a Liberty Interest, 2010 WIS. L. REV. 1203, 1205-07 ("Once blacklisted, a person is legally barred from otherwise lawful activities that others are free to pursue, such as flying on an airplane, opening a bank account, or sitting on a park bench."). 770 HOUSTON LAW REVIEW [ 53:3 punishing has been a favored strategy for some time; lists of subversive and disloyal organizations were a prominent feature of Cold War efforts to prevent the spread of communism on the home front.6 In one such case that came before the Supreme Court, Justice Hugo Black observed that "blacklists possess almost every quality of bills of attainder."' He found the similarity troubling. "I cannot believe," he continued, "that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive with power to engage in the same tyrannical practices."8 Black's construction has never garnered a majority of the Court. As the federal district court put it in litigation following Al-Aulaqi's death, the Bill of Attainder Clause "requires legislative action," and no "formal action of either the House or Senate was taken to approve the strike."9 No mention was made of the 2001 Authorization for Use of Military Force, on which the President's authority arguably rested. 10 This Article is a historical study of bills of attainder. Its concern is Justice Black's concern-whether we ought to regard our constitutional prohibition of bills of attainder as applying to executive acts. The argument of the Article is that bills of attainder are not, in fact, best understood as legislative punishments or legislative judgments. For most of their history, they have been