J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Saturday, March 14, 2015

Proposal for a Bill of Attainder with Corruption of Blood

I had reason this week to look up information about Sen. Tom Cotton of Arkansas (shown here), and I found this curious line on Wikipedia:
Corruption of Blood

In 2013 Cotton introduced legislative language to overturn the United States Constitution prohibition of attainder.
The citation for that statement led to a Huffington Post article. With further searching, I found the transcript of a markup session of the House Foreign Affairs Committee on 22 May 2013 (preserved in this very large P.D.F. file). The discussion turned out to reveal both less and more than the line on Wikipedia suggests.

In that session, House members were hammering out details of a law to impose sanctions on government officials in Iran. Cotton, then in the House, had proposed amending the bill to extend those travel and financial restrictions from officials “responsible for Human Rights violations, for engaging in censorship or otherwise diverting goods designated for common Iranian people” to “any family member of such official (to include a spouse and any relative to the third degree of consanguinity).”

Cotton’s point was to prevent such people from protecting their money by transferring it to relatives. The relatives affected by the law would include, he stated, “parents, children, aunts, uncles, nephews, nieces, grandparents, great-grandparents, grandkids, great-grandkids.”

But how would the U.S. government know that any property held by such potentially far-flung people had come from an Iranian government official? Cotton said that didn’t matter: “There would be no investigation. If the prime malefactor of the family is identified as on the list for sanctions, then everyone within their family would automatically come within the sanctions regime, as well.”

And that’s where the constitutional questions arose. Rep. Alan Grayson, one of the House’s boldest voices on the left, objected to the amendment on the grounds it would “allow the sins of the uncles to descend on the nephews.” He noted that its confiscations, fines, and other penalties would violate our Constitution in multiple ways. The particulars:
  • Article One, Section 9: “No Bill of Attainder…shall be passed.” A “bill of attainder” was a British term for a law deeming someone guilty without benefit of a trial. (Section 10 forbade the states from passing such laws as well, so the Founders really didn’t like them.)
  • Article Three, Section 3: “no Attainder of Treason shall work Corruption of Blood.” The old phrase “Corruption of Blood” referred to punishing relatives of a person convicted of a heinous crime simply because they were related. Even for treason, the Founders didn’t want the U.S. government to go after “grandparents, great-grandparents, grandkids, great-grandkids,” and so on.
  • Amendment Five: “No person shall be…deprived of life, liberty, or property, without due process of law.” Again, since the passage of the Bill of Rights, Congress can’t simply confiscate property from people “automatically” with “no investigation” and no judicial process, as Rep. Cotton wanted.
Grayson later added that the law would also violate the Eighth Amendment against “cruel and unusual punishments,” though that’s not so specific.

Cotton’s first response to Grayson’s objections was, “Iranian citizens do not have constitutional rights under the United States Constitution.” As Grayson replied, his colleague was “completely and utterly mistaken” on that point. The Fifth Amendment and other parts of the Constitution specify that they apply to any “person,” not just citizens. The lines prohibiting bills of attainder and corruption of blood say nothing about citizens only—they just prohibit such laws. There are decades of case law backing that up, which Cotton, as a lawyer, should have known.

That discussion ended with Cotton withdrawing his amendment under pressure from Grayson. It seems clear to me that Cotton didn’t knowingly try to “overturn the United States Constitution prohibition of attainder,” as the line on Wikipedia said. Rather, Cotton ignorantly tried to get around the Constitution because he thought punishing Iranian officials was really, really important. That would not be the last time Iran policy would lead him into breaking long-established American precedents.

Cotton’s claim about rights being restricted to citizens raises bigger questions. Obviously such rights as being able to vote in U.S. elections are exclusive to U.S. citizens. But the Founders and subsequent American leaders viewed more fundamental freedoms through a “natural rights” philosophy, or as what today we call “human rights.” (Cotton himself used that phrase, as quoted above.) We all deserve those rights simply because we’re alive.

So do Cotton and others who adopt his position actually believe in human or natural rights as the Founders described? Do they truly believe those rights are endowed by a creator? If so, how can they deny those rights to most of the human population simply because those people were born citizens of other countries?


Jimmy Dick said...

I think that what we are seeing with Cotton and people like him is a complete lack of attention to what the laws say and what they want to do. It is really revealing their hypocrisy regarding the Constitution. They claim to support it and the nation of laws, yet often reveal a lack of understanding or even regard for that document or concept.

The Constitution was written by men for exactly these kinds of people like Cotton. It is a framework that establishes how the US government can work. Cotton and his ilk are not concerned with that idea. They are only interested in doing what they want to do regardless of what the laws actually say. They think that if they just pass a law they can do whatever they want. It does not work that way. They have to work within the governmental system set forth in 1787 and put into motion in 1789.

Cotton and his crew seem to think they do not have to do that. This makes the irony incredible. Here we have a group of people who campaigned on the idea that Democrats trampled on the Constitution. Yet, once in power those GOP people are showing they do not know how the Constitution works, they don't care for laws that prevent them from creating laws that discriminate, and they have no regard for the Constitution as the framework for American government.

G. Lovely said...

Thank you for this information.

Staggeringly, some are touting Cotton as a potential Presidential candidate.

Nick said...

Just some feedback for you.

I enjoy your blog when you stick to the 18th century. You often present an interesting take on colonial and revolutionary war times.

But, your musings on modern day politics are divisive and repugnant. Your bigoted characterization of Conservatives does you no credit.

J. L. Bell said...

Nick, if you're trying to speak for "Conservatives," you're perpetuating the stereotype of many people in that group being unable to brook any criticism or respond with logical argument.

The posting above says nothing about "Conservatives" as a whole. It doesn't even use that word. It explores a specific political argument with roots in the Constitution at length and in detail. Yet you feel that it amounts to a "bigoted characterization." That's not how bigoted characterizations work.

If you feel yourself to be criticized along with Cotton, then you have the opportunity to explain the approach to the Constitution and human rights that the posting highlights. You can explain why exploring Cotton's position with more nuance and accuracy than the Wikipedia line is "divisive and repugnant."

Instead, you appear to be telling me that you don't want to read criticism of your own political stance. That's not a surprise to me. I expect to continue to write critical analysis of modern politicians' use and understanding of the American Revolutionary heritage.

Peter Ansoff said...

I'm curious about the applicability of Article 3 in this context. The definition of treason would seem to be tied to citizenship. Can a non-citizen (such as an Iranian) be guilty of treason against the USA?

J. L. Bell said...

It's true that Iranians can't be charged with treason to America. I quoted the treason clause because it's the only part of the Constitution that mentions “corruption of blood.” That extended punishment seems to have been a standard part of English bills of attainder, so any of the clauses ruling out bills of attainder would also also rule out corruption of blood. The treason clause makes that explicit.

One could argue that the lack of explicit mention of "corruption of blood" in the earlier section on bills of attainder meant the Founders were imagining an attainder bill without corruption of blood. But I interpret the situation as them saying that even in the case of treason, the old English punishment of bill of attainder with corruption of blood was not allowed, so lesser crimes would also not warrant that.

Committee of Correspondence said...

Hazza to you Mr. BELL for your research and fortitude to provide details concerning the principles of our Republic. Your research is flawless and the understanding of our Constitution is spot-on. Thank you for a delightful commentary and resource links.

Chaucerian said...

Today, in my Sunday morning history reading: "The Commonwealth tradition , , , was based on a conviction in 'extending the rights of Englishmen to all mankind' . . . . Gordon Wood regards this ideology . . . as the dominant intellectual influence of the American Revolution." [William C Kashatus III]

Marc Shelikoff said...

The video of then-Rep-now-Sen Cotton proposing his amendment in the House Foreign Affairs Committee and the reaction of his colleagues begins at roughly the 2:18:00 mark of the top video at http://foreignaffairs.house.gov/markup/markup-hr-850-nuclear-iran-prevention-act-2013 . This is for people who want to grimace with Grayson. I think American historians who view the country's beginning as the political application of Enlightenment values have a responsibility as citizens to write blog posts like yours about this astonishing 2013 proposed amendment.