Saturday, December 29, 2007

The Brattleboro Bill of Attainder

"(L)egislative 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."
--United States v. Lovett, 328 U.S. 303, 315-316 (1946).

"(The bill of attainder was) invented in the early fifteenth century... In the attainder procedure, there was not even a show trial: A bill was simply passed through both houses of Parliament declaring someone an enemy of the king and the kingdom."
--Norman F. Cantor, Imagining the Law, New York: Harper Perennial, 1999, p. 291.

So greatly did the authors of the Constitution despise the idea of legislative bodies declaring somebody a criminal that they prohibited bills of attainder twice. Article I, § 9 prohibits Congress from passing bills of attainder, while Article I § 10 declares that no state shall pass a bill of attainder. The latter is particularly striking: in the original Constitution of 1787 there is no indication that states even have to observe rules of due process--that would not come for over eighty years until the Fourteenth Amendment was ratified-- yet right away when our Constitutional government was first created, James Madison and company made it quite clear that if someone is to be arrested, it must be through the judicial process. Legislators cannot vote to say somebody is a criminal.

Well somebody forgot to tell some of the people in Brattleboro, Vermont, as shown by this ridiculous item:

Here it is in a nutshell:

"A group in Brattleboro is petitioning to put an item on a town meeting agenda in March that would make Bush and Vice President Cheney subject to arrest and indictment if they visit the southeastern Vermont community...

"The measure asks: 'Shall the Selectboard instruct the Town Attorney to draft indictments against President Bush and Vice President Cheney for crimes against our Constitution, and publish said indictment for consideration by other municipalities?'"

One can only hope that the Town Attorney is familiar with the Constitution, knows what a bill of attainder is, and tells the Selectboard to shut up and worry about whether there should be a traffic light installed at the intersection of streets x and y. It would be beneficial to everybody in Brattleboro, after all, if their Selectboard did what small town councils are supposed to do, rather than what the U.S. Constitution prevents them from doing. Whatever complaints anybody has with the President and Vice-President, this is America, and legislators can't randomly declare that two men named Bush and Cheney are criminals subject to arrest.

1 comment:

SueMac said...

It would be interesting to see your opinion of the Teri Schiavo bill passed by Congress in light of your opinion on Brattleboro's "Bill of Attainder."