Swan on Corruption of Blood

Sarah Swan has posted to SSRN Corruption of Blood. The abstract provides:

Article III of the United States Constitution is best known for authorizing and defining the jurisdiction of the federal courts. But it has another important feature: it prohibits “corruption of blood.” “Corruption of blood” was a historical English punishment which deemed the bloodline of a person convicted of treason to be “tainted” such that property and title could no longer pass to any of the felon’s descendants. The Framers found this practice of collective punishment revolting, and refused to allow it in their new aspiring nation. Indeed, reflecting the seriousness of this prohibition to the overall constitutional order, a majority of state constitutions also prohibit the practice.

Courts have mobilized this principle to invalidate laws and policies that penalize children for the wrongful acts of their parents. For example, a robust body of jurisprudence prohibits policies that penalize non-marital children or children of undocumented immigrants for the actions of their parents.

This Article argues that this interpretation is only half the story. The prohibition on corruption of blood applies not only to penalizing children for the wrongs of their parents, but also to penalizing parents for the wrongs of their children. This Article thus argues that the corruption of blood prohibition, particularly as it is interpreted in many state constitutions, offers a viable path for challenging parental responsibility laws that impose strict or vicarious liability on parents when their children engage in wrongdoing. In fact, even parental responsibility laws that ostensibly impose more calibrated versions of liability may be constitutionally suspect. Given the recent intense rise of parental liability cases and the new spate of parental liability statutes, a full accounting of the corruption of blood principle sets the constitutional limits for this rapidly rising area of liability.