Steilen on Bills of Attainder

Matthew J. Steilen, State University of New York at Buffalo Law School, has posted Bills of Attainder.  Here is the abstract:

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Does the maintenance of blacklists and kill lists violate the Bill of Attainder Clause of Article I, section 9? The government maintains such lists as part of the war on terror. The traditional view is that bills of attainder are legislative acts that punish an individual without judicial process. The Bill of Attainder Clause prohibits the legislature from passing such acts, but since the executive does not pass acts, the clause does not apply to the executive, or to its maintenance of blacklists.

The aim of this Article is 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. The Article then turns to America, where it illustrates the influence of English practices in revolutionary New York and Virginia, 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 bar summary forms of legal process in executive agencies, such as the maintenance of blacklists and kill lists.