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?