Unlike mycolleagues, I do not think that the AIG bonus tax is a good idea. While I think that many AIG executives should be tarred, feathered, and driven from the country, I don't think this should be done with the tax code. Imagine, if you will, a Republican-majority congress saying that married gay couples had to pay a 90 percent tax on their income.Luckily, the drink-cooling saucer of the Senate seems to be taking care of their more hotheaded friends in the House, and Obama has also been reluctant to support the bill, suggesting he may veto it if it comes to his desk.But what if it passes? Lawrence Tribe, a very smart legal scholar and adviser to the Obama campaign thinks that the bill would be found unconstitutional. Historically, the courts have been reluctant to rule on the constitutionality of the tax code, but this law may violate a more important constitutional principle: the ban on bills of attainder.Bills of attainder-specifically prohibited in Article 1, Section 9-are an old-fashioned legal tool used by British Parliament to punish people for crimes without the mess of a trial. Once a bill of attainder (attainder is from the old French for "to convict") was passed against a person, that person lost all civil rights, his/her children lost all rights to inherit property or title, and the Crown was entitled to the property. The person on the wrong end of the bill was usually executed. Bills of attainder were often used to silence those who had committed treason without having to give them a trial in which they could showcase their treasonous ideas. Indeed, many American revolutionaries were slapped with bills of attainder. The last such bill passed by the British Parliament was against the Irish revolutionary Lord Edward FitzGerald in 1798. Chafing against arbitrary use of power by the King, our budding democracy specifically forbade Congress from passing such bills.In the United States, laws that specifically target one person or one group of people have historically been overturned as violating Article 1, Section 9. The most relevant decision remains Cummings v. Missouri, an 1865 case about former Confederate soldiers who weren't allowed to go into certain jobs without first swearing a loyalty oath to the United States. The Supreme Court wrote at the time:"A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment." If that isn't a dead-on description of the AIG bonus bill, I don't know what is. Interestingly, many people thought the Teri Schiavo bill, geared as it was towards one person, fell into this same category. Bills of attainder: Now you know.
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