Editing Bill of attainder (section)

==== Supreme Court cases ====
The [[U.S. Supreme Court]] has invalidated laws under the Attainder Clause on five occasions.<ref>{{cite journal |title=Nonattainder as a Liberty Interest |journal=Wisconsin Law Review |date=2010 |page=1229}}</ref>

Two of the Supreme Court's first decisions on the meaning of the bill of attainder clause came after the [[American Civil War]]. In ''[[Ex parte Garland]]'', 71 U.S. 333 (1866), the court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion. In ''[[:s:Cummings v. Missouri/Opinion _of the Court|Cummings v. Missouri]]'', 71 U.S. 277 (1867), the [[Missouri]] Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law and the constitutional provision, arguing that the people already admitted to practice were subject to penalty without judicial trial.<ref>[[John Hart Ely|Ely, John H.]] ''On Constitutional Ground''. Princeton, N.J.: Princeton University Press, 1996, p. 98.</ref> The lack of judicial trial was the critical affront to the Constitution, the Court said.<ref>Nabers, Deak. ''Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852–1867''. Baltimore, Md.: Johns Hopkins University Press, 2006, p. 30.</ref>

Two decades later, however, the Court upheld similar laws. In ''[[Hawker v. New York]]'', 170 U.S. 189 (1898), a state law barred convicted felons from practising medicine. In ''[[Dent v. West Virginia]]'', 129 U.S. 114 (1889), a [[West Virginia]] state law imposed a new requirement that practising physicians had to have graduated from a licensed medical school or they would be forced to surrender their license. The Court upheld both laws because, it said, the laws were narrowly tailored to focus on an individual's qualifications to practice medicine.<ref name="Johnson">Johnson, Theodore. ''The Second Amendment Controversy{{snd}}Explained.'' 2d ed. Indianapolis: iUniverse, 2002, p. 334.</ref> That was not true in ''Garland'' or ''Cummings''.<ref name="Johnson" /><ref name="Beyond481483">"Beyond Process: A Substantive Rationale for the Bill of Attainder Clause". ''Virginia Law Review''. 70:475 (April 1984), pp. 481-483.</ref>

The Court changed its "bill of attainder test" in 1946. In ''[[United States v. Lovett]]'', 328 U.S. 303 (1946), the Court confronted a federal law that named three people as subversive and excluded them from federal employment. Previously, the Court had held that lack of judicial trial and the narrow way in which the law rationally achieved its goals were the only tests of a bill of attainder. But the ''Lovett'' Court said that a bill of attainder 1) specifically identified the people to be punished; 2) imposed punishment; and 3) did so without benefit of judicial trial.<ref>Cushman, Robert Fairchild and [[Susan Koniak|Koniak, Susan P.]] ''Cases in Civil Liberties''. Englewood Cliffs, N.J.: Prentice Hall, 1994, p. 4.</ref><ref>''The Heritage Guide to the Constitution''. Washington, D.C.: Heritage Foundation, 2005, p. 155.</ref> As all three prongs of the bill of attainder test were met in ''Lovett'', the court held that a Congressional statute that bars particular individuals from government employment qualifies as punishment prohibited by the bill of attainder clause.

The [[Taft–Hartley Act]] (enacted in 1947) sought to ban [[strike action|political strikes]] by [[Communism|Communist]]-dominated [[trade union|labour unions]] by requiring all elected labour leaders to take an oath that they were not and had never been members of the [[Communist Party USA]], and that they did not advocate violent overthrow of the U.S. government. It also made it a crime for members of the Communist Party to serve on executive boards of labour unions. In ''[[American Communications Association v. Douds]]'', 339 U.S. 382 (1950), the Supreme Court had said that the requirement for the oath was not a bill of attainder because: 1) anyone could avoid punishment by disavowing the Communist Party, and 2) it focused on a future act (overthrow of the government) and not a past one.<ref name="Welsh">Welsh, Jane. "The Bill of Attainder Clause: An Unqualified Guarantee of Process". ''Brooklyn Law Review''. 50:77 (Fall 1983), p. 97.</ref> Reflecting current fears, the Court commented in ''Douds'' on approving the specific focus on Communists by noting what a threat communism was.<ref>Wiecek, William M. ''History of the Supreme Court of the United States: The Birth of the Modern Constitution: The United States Supreme Court, 1941–1953''. New York: Macmillan, 2006, p. 548.</ref> The Court had added an "escape clause" test to determining whether a law was a bill of attainder.<ref name="Welsh" />

In ''[[United States v. Brown]]'', 381 U.S. 437 (1965), the Court invalidated the section of the statute that criminalized a former communist serving on a union's executive board. Clearly, the Act had focused on past behaviour and had specified a specific class of people to be punished.<ref>"Beyond Process: A Substantive Rationale for the Bill of Attainder Clause", ''Virginia Law Review'', April 1984, p. 485.</ref> Many legal scholars assumed that the ''Brown'' case effectively, if not explicitly, overruled ''Douds''.<ref>Rabinowitz, Victor. ''Unrepentant Leftist: A Lawyer's Memoir''. Urbana, Illinois: University of Illinois Press, 1996, p. 56.</ref> The Court did not apply the punishment prong of the ''Douds'' test, leaving legal scholars confused as to whether the Court still intended it to apply.<ref>Welsh, "The Bill of Attainder Clause: An Unqualified Guarantee of Process", ''Brooklyn Law Review'', Fall 1983, p. 98.</ref>

The Supreme Court emphasized the narrowness and rationality of bills of attainder in ''[[Nixon v. Administrator of General Services]]'', 433 U.S. 425 (1977). During the [[Watergate scandal]], in 1974 Congress passed the [[Presidential Recordings and Materials Preservation Act]], which required the [[General Services Administration]] to confiscate former President [[Richard Nixon]]'s presidential papers to prevent their destruction, screen out those which contained national security and other issues which might prevent their publication, and release the remainder of the papers to the public as fast as possible.<ref>Ripley, Anthony. "U.S. Judge Rules Nixon Documents Belong to Nation", ''The New York Times'', 1 February 1975.</ref> The Supreme Court upheld the law in ''Nixon'', arguing that specificity alone did not invalidate the act because the President constituted a "class of one".<ref name="Stark">Stark, Jack. ''Prohibited Government Acts: A Reference Guide to the United States Constitution''. Westport, Connecticut: Praeger, 2002, pp. 79–80.</ref> Thus, specificity was constitutional if it was rationally related to the class identified.<ref name="Stark" /> The Court modified its punishment test, concluding that only those laws which historically offended the bill of attainder clause were invalid.<ref>Stark, ''Prohibited Government Acts: A Reference Guide to the United States Constitution'', 2002, p. 74.</ref> The Court also found it significant that Nixon was compensated for the loss of his papers, which alleviated the punishment.<ref name="Stark75">Stark, ''Prohibited Government Acts: A Reference Guide to the United States Constitution'', 2002, p. 75.</ref> The Court modified the punishment prong by holding that punishment could survive scrutiny if rationally related to other, nonpunitive goals.<ref name="Stark75" /> Finally, the Court concluded that the legislation must not be intended to punish; legislation enacted for otherwise legitimate purposes could be saved so long as punishment was a side-effect rather than the main purpose of the law.<ref>Stark, ''Prohibited Government Acts: A Reference Guide to the United States Constitution'', 2002, p. 30.</ref>