46. Which of the following constitutional provisions provides the best means for challenging the constitutionality of the statute?

A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct. Past conduct acts to define who those particular persons are. Both the federal and state governments are prohibited from passing bills of attainder. The U.S. Supreme Court held, in United States v. Lovett, 328 U.S. 303 (1946), that a statute barring particular individuals from government employment qualified as punishment within the meaning of the constitutional provision prohibiting bills of attainder.

The Due Process Clause protects not only «substantive» rights, but it also requires that the state act with adequate or fair procedures when it deprives a person of life, liberty, or property. For a proper procedural due process claim, the government must first take a person's life, liberty, or property. There is no general interest in having the government behave with fair procedures.

Neither the state nor the federal government may pass an ex post facto law, which is legislation that retroactively alters the criminal law (not civil regulation) in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity.

The Fifth Amendment prohibits governmental taking of private property «for public use without just compensation.» As such, both state and federal governments have the right to take private property for public use as long as «just compensation» is paid.

A is correct. The most effective basis for challenging the constitutionality of this statute is the Bill of Attainder Clause, which prohibits legislative acts that single out individuals for punishment without affording them a trial, which is what occurred here. The Senate investigative committee found that these named individuals were involved in terrorist activity, but no fair trial was afforded before imposing the punishment of barring them from government employment. See United States v. Lovett, 328 U.S. 303 (1946).

B is incorrect. Procedural due process protections affording individuals notice and a hearing before being deprived of an interest in public employment do not apply to legislative action, which is at issue here. As such, due process is not the appropriate basis to challenge the statute's constitutionality.

C is incorrect. Although the statute at issue punishes individuals for past conduct, the ex post facto Clause applies only to criminal or penal measures. This statute does not impose a criminal penalty on the targeted individuals. It simply bars them from government employment.

D is incorrect. The Takings Clause prohibits the government from taking an individual's property without paying just compensation. The statute here does not take property owned by the targeted individuals. It simply bars those individuals from government employment.