U.S. v. Lovett, 328 U.S. 303 (1946)

Commentary by Jon Roland

The decision in this case was correct, but the Court did not go far enough in its opinion. It relied on narrow textual and historical analysis, when a broader structural analysis was indicated. What is the structural or functional role of the Bill of Attainder clauses? J. Frankfurter adopts such a narrow definition that it would allow, by his own admission, Congress to avoid the prohibition by inflicting penalties without declaring a crime. He claims that complainants would have other remedies, but what other remedies? The Fifth Amendment guarantee of due process? Yes, but if we remember the claim of James Madison that the Bill of Rights added no new content to the original Constitution, then that would mean the content of the Fifth Amendment was to be found in that original Constitution, and the only place it can be found is in the prohibitions on bills of attainder and ex post faco laws. But if the meaning is the same, or nearly so, how does that require us to interpret the Bill of Attainder and Ex Post Facto clauses? Not as narrowly as J. Frankfurter, or even as narrowly as in Cummings v. State of Missouri, 4 Wall. 277 (1867). It would require us to find any legislative disablement of a right, either to individuals, defined groups, or even to the entire population, as a constitutionally prohibited bill of attainder, and perhaps also an ex post facto law. Indeed, it would be seen as equivalent not only to the Fifth Amendment, but to the Ninth and Tenth Amendments. The main difference would be that for the prohibitions, the mere existence of a prohibited act of Congress or a state legislature would confer standing to any person to challenge its constitutionality, without having to first have the act applied to them.

For more on these issues see "Public Safety or Bills of Attainder?", Jon Roland, at http://www.constitution.org/col/psrboa.htm .

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