The Corruption of Blood As Metaphor

Nicholas Serafin

Article III, Section 3 of the United States Constitution states that “Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood.” Corruption of blood was a common law punishment according to which individuals adjudged guilty of treason were deemed to possess “corrupt” blood and thus were stripped of the right to transmit property to any heirs. Conversely, their descendants lost the ability to inherit property or titles through the corrupted ancestral line. The punishment was typically imposed via attainders, that is, parliamentary determinations of an individual’s guilt without recourse to a trial. 

Legal authorities and legal scholars have offered a number of interpretations of the Clause. According to one interpretation, the Clause simply bans the corruption of blood, as this punishment was understood in common law. According to another interpretation, the Clause prohibits the punishment of children for the sins of their parents. According to yet another, the Clause stands for the principle that individuals should not be singled out on the basis of stigmatized group characteristics. Legal scholars remain divided over how to interpret the Clause. Part of the problem lies in the fact that while a number of legal scholars have examined the history of attainder, few have investigated the origins and meaning of the corruption of blood. In fact, much of the history of the punishment, including significant legal precedents discussing the corruption of blood, has not made its way into existing legal scholarship. 

This Article breaks new ground by tracing the origins of the Corruption of Blood Clause to the Roman law of infamy. I demonstrate that the punishment was imposed not simply for treason but rather for conduct or physical characteristics that were thought to be morally shameful. As the punishment was adopted in feudal Europe, the idea of corrupt blood became associated with individuals and groups who possessed stigmatized physical characteristics. In American law, this sense of corrupt blood was retained and applied particularly in cases involving immigration, integration, and intermarriage. In these cases, non-white groups were deemed to possess corrupt blood and so were excluded from the American body politic. 

Drawing on this history, I defend a “group-status” interpretation of the corruption of blood. I argue that the principle prohibits state action that singles out outcast groups, particularly groups defined by stigmatized physical characteristics. Because stigmatized physical characteristics are often shared by group members and passed down through generations, the principle is especially relevant when children are threatened with intergenerational punishment. The corruption of blood principle thus provides a separate foundation for important antidiscrimination doctrinal tools, such as the Court’s animus and stigma jurisprudence. Yet, I also argue that the Clause itself bears directly upon issues like felon disenfranchisement and the Trump administration’s child-separation policy at the United States-Mexico border.