“No Bill of Attainder… shall be passed…” – Article 1 Section 9
In 1974, Richard Nixon resigned from the Presidency, the only person to ever do so. The primary evidence against him was a set of tapes that he had made in the Oval Office, which purported to contain direct evidence of the Watergate Conspiracy, or at least a lot of buzzing that replaced sections that might have proved the Watergate Conspiracy if they hadn’t been so obviously erased.
After he resigned President Ford pardoned Mr. Nixon on September 8, 1974.
Prior to that day, Presidential papers were not considered “public documents.” They were private papers which belonged to the President. In fact, until Franklin Roosevelt donated his papers to the National Archives through his Presidential Library and Museum in 1939, they had never been available to the public except in the form of books and articles written by researchers who had been granted access.
Until December 19, 1974. On that day, President Ford signed a bill passed by Congress, The Presidential Recordings and Materials Act.” This law, which by definition applied ONLY to the records and Materials of Richard Nixon, made it clear that these were now the property of the United States, to be overseen by the National Archivist, who was charged with determining which records and documents the United States would keep – for potential use in judicial proceedings – and which would be returned as the property of Richard Nixon.
Naturally, the former President sued, claiming that this law was clearly unconstitutional as it violated the ban on Bills of Attainder.
It would take until 1998 to fully resolves Nixon’s role in this. Today, the Federal Courts are preparing to take up two cases that both Defenses are arguing are Bills of Attainder. Will history repeat or will the Courts find that no bills of attainder shall be passed?
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. – ARTICLE I, SECTION 9, CLAUSE 2
In Alabama, a man with a long record of violent criminal activity found himself on trial for armed robbery. The trial lasted two days and seemed pretty much slam dunk for the government. Then the jury began to deliberate. And deliberate.
After three hours, they sent a note to the Judge letting him know that they were deadlocked and unlikely to reach a unanimous verdict. after some extensive back and forth, there was one holdout. The Judge decided to take action. eighteen minutes later the Jury returned a unanimous Guilty verdict.
And on appeal, the 11th Circuit, led by the brilliant Judge Ed Crane, overturned the conviction and granted the man’s habeas corpus demand.
To answer that you have to go back to Article 1 Section 9 and then back to 1670. A man named William Penn (yes, *that* William Penn) decided to push the limits of English law and defy the Crown. Of course, he was arrested and put on “tryal” in the Old Bailey.
What happened next is why Judge Ed Crane granted the motion for habeas relief in an Alabama Armed robbery case in 2019…
You are There: The Trial of William Penn CBS Radio reenactment
11th Circuit Ruling by Judge Ed Crane: Brewster v Hetzel
It would take 40 years for a series of legal changes to make full citizenship a reality for all American Indians living in the United States, despite the 14th Amendment’s promise of equal protection and due process under the law for all Americans.
As late as 1948, two states (Arizona and New Mexico) had laws that barred many American Indians from voting, and American Indians faced some of the same barriers as blacks, until the passage of the Civil Rights Act of 1965.
The case of Elk v. Wilkins in 1884 dealt with a birthright citizenship claim. John Elk was an American Indian who gave up his tribal affiliation, moved to Omaha, spoke English, paid taxes, and then tried to vote.
Writing for the majority, Justice Horace Gray said Elk had no claim to citizenship because he had never been naturalized as an American citizen through a treaty or statute. Even though he was born within the territorial jurisdiction of the United States, the 14th Amendment didn’t apply to Elk, Gray said, because Elk was born as a subject of an Indian nation that was an alien power.
The argument over Indian nations went back to the era of Chief Justice John Marshall. In what was later known as the Marshall Trilogy rulings, the Chief Justice established the precedents for how the United States legal system would deal with political and social rights for American Indians who lived in the territorial boundaries of the United States.
Marshall wrote in Cherokee Nation v. Georgia in 1831 that the Cherokees didn’t have legal standing to prevent the state of Georgia from seizing its lands because Indians were “in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”
American Indians were also part of the Dred Scott decision in 1857 but in a much different way. Chief Justice Roger Taney argued that American Indians, unlike enslaved blacks, could become citizens, under congressional and legal supervision.
The citizenship of Indian tribes or nations came up a decade later as Congress considered the Civil Rights Act and the 14th Amendment. In January 1866, when the Senate started debating the Civil Rights Act there were concerns that the bill’s broad language would confer citizenship on all American Indians. The final bill just granted citizenship to American Indians “who are domesticated and pay taxes and live in civilized society” and were therefore “incorporated into the United States.”
When Justice John Marshall Harlan looked at these debates as he wrote his dissent in Elk v. Wilkins in 1884, the intent seemed obvious. “It would seem manifest, from this brief review of the history of the act of 1866, that one purpose of that legislation was to confer national citizenship upon a part of the Indian race in this country—such of them, at least, as resided in one of the states or territories, and were subject to taxation and other public burdens,” Harlan said.
Harlan also said the 14th Amendment’s intention was equally clear in this area, as an extension of the Civil Rights Act of 1866.
“There is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States,” he concluded.
After the Elk v. Wilkins decision, the Dawes Act in 1887 gave American citizenship to all Native Americans who accepted individual land grants under the provisions of statutes and treaties. But the issue of American Indian birthright citizenship wouldn’t fully be settled until 1924 when Congress conferred citizenship on all American Indians under the Indian Citizenship Act.
The act said that “all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.” At the time, 125,000 of an estimated population of 300,000 American Indians weren’t citizens.
Scott Bomboy is the editor in chief of the National Constitution Center.