With every day the Senate shrinks from a vote on Judge Kavanaugh, the more we are reminded of why America’s Founding Fathers denied Congress the power to pass a bill of attainder. That is a law condemning a person to death or other punishment. More broadly, the prohibition on bills of attainder blocks Congress from adjudicating criminal cases. It is part of American bedrock.

Now we understand that putting Judge Kavanaugh in the hot seat and letting Christine Blasey Ford accuse him of sexual assault is not technically passing a bill of attainder. Clutching such writs, posses fanned out to apprehend, or kill, named individuals. What the Senate is doing, though, in effect puts an individual on trial, which, under our Constitution, should be left to the due process of the courts.

The first time your editor made this point was in 1991, when another brilliant young United States judge, Clarence Thomas, who rode the same circuit that Judge Kavanaugh now rides, was sitting before the same Senate committee — and even some of the same senators. The editorial in which the point was made ran in the Jewish Forward newspaper under the headline “Attaining Thomas.”

That editorial began with the etymology of the word “attain,” which is a root of attainder. Among its basic meanings, according to Webster’s Second International (the standard reference at the Sun), is to “fasten guilt upon.” So bent were the Founders on preventing Congress from passing bills of attainder that they used the first article of the constitutional parchment to forbid bills of attainder to both Congress and the states.

It’s hard to think of a moment that better illuminates why bills of attainder are forbidden to the Congress than the spectacle about to unfold in the Judiciary Committee. Were it a venue for due process, the rules would be well worn and tested over time. As it is, no one knows what the rules are. The accuser wants to go second. The accuser doesn’t want to face the individual the accuser is accusing.

It’s not our intention here to blame the accuser. Any accuser is perfectly entitled to press for advantage. The mistakes we’re concerned about are being made by Congress, which does not normally receive — and is not empowered to deal with — accusations of sexual assault. What was the Senate doing receiving the accusations in the first place? Why not leave them to the normal, local authorities?

We understand that the mere possibility that Judge Kavanaugh might have committed a sexual assault is, to some, cause in and of itself to deny Judge Kavanaugh a seat on our highest bench. Then again, too, a mere possibility could have been entered into the record on a police blotter. If the possibility is all we need, no need for a trial in the courts or a hearing in the Senate. Raising possibilities could be left to Twitter.

It will be pointed out that the power — the duty, even — to advise and consent is granted to the Senate in the same Article that forbids bills of attainder. What this spectacle shows is that one can’t count on the world’s greatest deliberative body to hew to the distinction. The Democrats will bear almost the lion’s share — meaning, all — of the blame. The Republicans, though, will deserve a portion.

That long ago editorial in the Forward concluded with a warning. The tactics used against Clarence Thomas, it reckoned, may yet be used against others who are not in the “mainstream.” There might even come a time, it added, “when we Jews, with our ancient anxieties about social justice and religious freedom and our modern worries about Israel, will fall out of what Congress considers to be this same ‘mainstream.’”

Then, it warned, partisans of the Jewish causes might find themselves being “attained on the Hill the way Judge Thomas has been.” It bid its readers to “think ahead of such dangers and make sure that we don’t have to ask ourselves where we were when it all started.” We can’t help thinking that this is a point today for all of the Senators who believe in the bones of American justice.

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The photo is of the definition of attain in Webster’s Second International Unabridged.