The Constitution’s Bill of Attainder Clauses, found in Article I, Section 9 and Article I, Section 10, prohibit both Congress and state legislatures from passing targeted statutes imposing punishment on specified actors without trial. The Supreme Court has never decided whether the Clauses apply to corporations.
The Second Circuit is the only federal circuit to address the issue explicitly, holding in Consolidated Edison Co. of New York v. Pataki that Article I, Section 10’s Bill of Attainder Clause applies to corporations. Other circuits either have not faced the issue or have assumed, for the purposes of the specific cases before them and without officially deciding, that the Clauses apply to corporations. The Second Circuit’s reasoning fails as a foundation upon which courts can rely in administering future corporate attainder challenges—drawing dubious inferences from inapplicable Supreme Court precedent and performing a partial merits analysis under the guise of deciding this threshold issue.
This Note offers the first extended argument that the Bill of Attainder Clauses apply to corporations. While the Clauses’ text is silent on the issue, this Note considers the history and precedent of the Bill of Attainder Clauses before exploring the Court’s approach to corporate constitutional rights more generally. Assessing the theories of corporate personhood undergirding the Court’s corporate constitutional rights cases and the purposes for which the attainder prohibition was adopted, this Note concludes that the Bill of Attainder Clauses, properly understood, apply to corporations.
Harrison A. Newman, Corporations Under the Bill of Attainder Clause, 69 Duke L.J. 923-958 (2020)
Available at: https://scholarship.law.duke.edu/dlj/vol69/iss4/3