The Loyalists and the Federal Constitution: The Origins of the Bill of Attainder Clause

During American Revolution, rebel state governments adopted bills of attainder to contain and control loyalists, dangerous internal enemies who would apply their blood, treasure, and influence to put down the rebellion. In this extreme form of punitive legislation, state assemblies identified specific Tories by name, judged them guilty of treason, and prescribed a variety of punishments ranging from property confiscation to permanent banishment. Just four years after the war, however, delegates at the Constitutional Convention in Philadelphia passed an unconditional ban on attainder laws with a unanimous vote and almost no debate. In fact, protection from bills of attainder was one of the handful of individual rights that the Framers included in the actual text of the Constitution. So why the change? Why did so many Americans view bills of attainder as acceptable during the war, then turn around and reject them just a few years later?

The Framers’ unanimous decision to ban attainder laws was predicated on two related developments that took place in the aftermath of the Revolution. The first was the peaceful reintegration of loyalists who chose to remain in the states after the war. Once loyalists ceased to pose a special threat, states no longer needed extraordinary measures to manage them. The second was the Framers’ increasing fear that state assemblies had grown too powerful. In this sense, the attainder ban was part of a larger effort to take power away from the people—particularly the alarming power to confiscate private property.