Kid's Corner: Bringing complicated issues down to a level even you can understand

Written by Konrad the Bold

Dear Kid?s Corner,

We were reading the constitution in school and when we got to the part where it says ?No bill of attainder or ex post facto Law shall be passed? the teacher didn?t know what a bill of attainder was. None of the other teachers could figure it out. We even asked the principal and he didn?t know either. Could you tell us what that means?
     Katie, Grade 5
     Assboink, Idaho

Well Katie, a bill of attainder is basically a law that says takes away someone?s rights without giving them a trial. For example, a law that says, ?John Smith is a bad person and all his property now belongs to the state? would be a bill of attainder because it takes away his property without going through the courts.

The reason bills of attainder are prohibited has something to do with a concept your teacher has probably mentioned a few times: the separation of powers. That means that there has to be a balance between the people who make the laws (the legislature) and the people who decide if laws have been broken (the courts). If the legislature were allowed to pass a bill of attainder that balance would be gone because the courts wouldn?t get a chance to stop them from abusing their power.

What the legislature can do is make a law that says, ?Being John Smith is a crime punishable by having one?s property confiscated?. That is not a bill of attainder because John?s property can?t be confiscated until a court finds him guilty of this ?crime?. Of course, if such a silly law were passed the court would probably decide that the law is unconstitutional and refuse to carry out the sentence. In this way the authors of the constitution ensured the courts could stop the legislature from abusing their power.

You probably think that the constitutional is pretty clear when it comes to bills of attainder and that?s all there is to it, but it?s not that simple. The constitution was written a long time ago, and while most people think it?s full of good ideas, it?s not really followed too closely. After all, just because someone writes down some rules doesn?t mean everyone else has to follow them. Right, Katie?

One example of when people had to ignore the constitution is the internment of Japanese-Americans during the Second World War. At the time, Japan was America?s enemy and people were worried about spies and traitors. President Roosevelt issued what?s called an executive order ? that?s like a special law ? to arrest and hold Japanese-Americans in internment camps. Since people were effectively locked up without a trial, President Roosevelt?s order was a bill of attainder. Just imagine the hassle if they had to give trials to over 100 000 people!

More recently a law was passed that prohibits crazy people and convicted felons from buying guns. In theory, since being crazy is not a crime, this law is a bill of attainder because it takes away someone?s constitutional right to bear arms without giving them a trial. The interesting thing is that?s it?s also an ex post facto law (a law that punishes someone for something they did before the law was passed). If someone went to jail for a crime before this law was passed then they still can?t buy a gun, even though that wasn?t part of the original punishment the court ordered for them. It?s like they got punished and then later the law changed and they got another punishment on top of it. Isn?t the world a crazy place? In one law both parts of the ?No bill of attainder or ex post facto Law shall be passed? clause are broken!

It just goes to show you can?t always follow the rules, but I guess every kid in the world already knows that.