Ttykuu

Recently, a few aspiring 2020 Democratic Presidential candidates (specifically Kamala Harris and Elizabeth Warren) have spoken out in favor of "reparations" to black people for American Slavery, which was abolished over 150 years ago.

Mirriam Dictionary defines a "Bill of Attainder" as:

a legislative act that imposes punishment without a trial

Bills of Attainder are specifically prohibited by the US Constitution in Article 1, Section 9.

Of course, the idea behind banning Bills of Attainder was to prevent abuse whereby legislatures would target groups of people and pass laws summarily punishing them for perceived actions or transgressions.

Would any Bill establishing "slavery reparations" not have to be considered an illegal Bill of Attainder since they specifically target non-black people and slate them for punishment without a trial?

It depends how they do it. Some legal (although there may be other challenges for these) ways:

1. Pass a law saying that descendants of slaves could sue descendants of slave owners. Then hold a trial or trials. Would have to be carefully worded to not be ex post facto banned.


2. Raise a general tax and make a specific payment. So all races would pay a tax but only descendants of slaves would get money back.


3. Raise a general tax (possibly progressive) and make a means-tested payment. So all races would pay tax and all races would receive payments. But richer whites would pay more tax and poorer blacks would receive more payments.

The bill of attainder ban only prevents an explicit transfer of money from one group to the government without a trial. It doesn't prevent implicit transfers; otherwise, welfare payments would trigger it.

No, on two counts

First, if they were funded by reorganization of current government spending, reparations would legally be no different from any other government program that targets a group.

This was established in Nixon v. Administrator of General Services, that a law burdening a group is not unconstitutional.

However expansive is the prohibition against bills of attainder, it was not intended to serve as a variant of the Equal Protection Clause, invalidating every Act by Congress or the States that burdens some persons or groups but not all other plausible individuals.

There's a little bit more about how intent to punish and legitimate purposes also matter.

Further, even were they funded by a specific additional tax, reparations would legally be considered a tax, not a punishment. Note that everyone would likely be taxed, but, as with many existing government programs, the proceeds would not be distributed back to everyone evenly.

Finally, reparations have been implemented by law previously in US history, for instance in the case of the internment of Japanese-Americans. To the best of my knowledge, there was no challenge on constitutional grounds, and if there was, it clearly was not successful.