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practice of legislative punishment, whereby individuals could be condemned to death by a special act of Parliament. Legislative acts inflicting
lesser punishments are called bills of ‘‘pains and penalties.’’ As interpreted by the Supreme Court, the prohibition against bills of attainder
extends to all legislative acts, ‘‘no matter what their form, that apply either to named individuals or to easily ascertainable members of a group
in such a way as to inflict punishment on them without a judicial trial.’’
The third guarantee, which is also a check on the legislature inherited
from English law, is protection against ex post facto laws. These are retrospective or retroactive laws which impose criminal penalties for acts that
were not illegal when they were performed. Over the years, the Supreme
Court has interpreted the prohibition to include any law which operates
to the disadvantage of an individual accused of a crime committed before the law was passed. This includes laws that change the punishment
and inflict a greater penalty than the one affixed to the crime when it was
committed, and laws that alter the rules of evidence so as to permit less
or different evidence for a conviction than was required at the time the
crime was committed. The ex post facto clause was apparently intended
by the Framers to apply to retrospective laws devaluing property rights,
but very early in our history the Supreme Court held in Calder v. Bull
(1798) that the restriction applies only to criminal laws.
Section 9 also forbids Congress to levy direct taxes unless in proportion to population; to tax exports; or to favor the ports or shipping of one
State over the ports or shipping of another State. Federal officials are
forbidden from drawing money from the Treasury except in accordance
with Congress’s appropriation of funds. Finally, Section 9 forbids Congress to grant titles of nobility. Nor can anyone connected with the Federal administration accept gifts, or titles, or other favors from foreign
governments without Congressional consent.
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The list of what State governments might not do under Section 10 was
quite as specific as the longer list of prohibitions upon the Federal government. No State may make foreign alliances or treaties; license privately owned ships to prey upon e