Motivated by history, the founding fathers outlawed these deeds at the nation’s start.
In September 1787, Jacob Shallus, the assistant clerk of the Pennsylvania State Assembly, was commissioned to draw up a contract. Two days later, he put the finishing touches on the four-page, 4,543-word document. For his services, Shallus received $30. His work — the original draft of the United States Constitution — remains on display to this day at the National Archives in Washington.
In the nearly 250 years that have passed since then, many arguments have taken place about what the Constitution should — or should not — prohibit. Yet, some portions are universally known and accepted:
But other rights and prohibitions — and their history — are less well known.
Let’s examine three:
- Prohibition of Cruel and Unusual Punishments
- Bills of Attainder
- Ex Post Facto Laws
Cruel and Unusual Punishments
The Eighth Amendment bans cruel and unusual punishments. The text of the amendment reads as follows:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The inspiration for the Eighth amendment goes back to the English Bill of Rights. Drafted by Parliament and agreed to by William III of England in 1689, the English Bill of Rights was the forerunner to the American Bill of Rights.
The text of the Eighth Amendment is almost verbatim to the English original, which reads:
“as their ancestors in like cases have usually done…that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
So why did the English come up with the original?
The case of Titus Oates is the likely reason for the prohibition in the English Bill of Rights.
Titus Oates was an eccentric English priest who lived from 1649–1705. In 1681, Oates claimed to have knowledge of a Catholic plot to assassinate King Charles II of England. Oates’ testimony led to the execution of up to fifteen individuals.
However, Oates was lying. There was no plot to assassinate the King. Under questioning, it became clear that his story (later known as the ‘Popish Plot’) was a total fabrication.
In 1685, when King James II — who was Catholic — took the throne, he sought vengeance. Oates was tried for perjury, convicted, and ordered to be “whipped through the streets of London five days a year for the remainder of his life.”
Some have argued that the purpose of the sentence was to kill Oates, whose perjury was not a capital crime.
After four years of imprisonment, Oates was released in 1689, when William III came to power in the Glorious Revolution.
Bill of Attainder
Bills of Attainder have the distinction of being prohibited in not just one, but two sections of the US Constitution. In Article One, Sections Nine and Ten prohibit their use by the Federal and State governments.
So what are these little nasties?
A Bill of Attainder is defined as a legislative act that declares a person or group of persons guilty of a crime.
No trial necessary. No reasonable doubt.
Nothing but a simple majority vote to determine guilt or innocence.
This legislative short-circuit removes the rights of the accused, rules of evidence, and trial by jury. It is mob justice masquerading as legitimate law.
English common law, the forerunner to modern American law, permitted the use of Bills of Attainder well into the 18th century.
Yet, Colonial Americans — not represented in the English Parliament — grew extremely wary of them.
James Madison, a student of history, was familiar with the Roman tradition of denouncing political rivals as traitors, then inciting the Senate to vote on whether the individual, his followers, and his family were “enemies of the state.”
Knowing that a vaguely defined charge of treason was often the mechanism for a purge, Madison explained in Federalist 43 why the Constitutional convention had sought to define it themselves:
“As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as newfangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime.”
Thus, the founders sought to prohibit Bills of Attainder by explicitly banning them and defining treason — the most common reason for the passage of a Bill of Attainder.
Ex Post Facto Law
Ex Post Facto, meaning “after the fact,” refers to a law that punishes actions that occurred before its enactment.
For example, today, it is legal to wear blue jeans.
But imagine a future where it is illegal to wear blue jeans. If you wear blue jeans, you are arrested and put in jail. This law, however ridiculous, would operate proactively. Once the bill is enacted into law, you can no longer wear blue jeans without breaking the law.
Ex post facto laws work retroactively.
If you wore blue jeans in the past, you are guilty of the crime.
What is even worse about ex post facto laws is that they often incorporate the “corruption of blood” theory.
This theory holds that the family of an individual deemed to have committed a crime could be held liable for their relative’s actions.
Again, this is a case where the founders sought to avoid history’s pitfalls. “corruption of blood” was a time-honored tradition in Republican and Imperial Rome. The accused would lose his life, the government would seize his property, and his family would be killed or exiled.
Recognizing that this practice was unfair, and also that it created lingering resentment that often led to further civil strife, the founders stopped the practice before it ever began in the new nation.
As always, Americans continue to strive for a “more perfect union.” As we do so, let us recall some of the constitutional treasures we already have.
These prohibitions are certainly among them.