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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?

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    " slate them for punishment without a trial" - Assuming these reparations would be funded through the Federal budget: As a US taxpayer I disagree with the notion that me being taxed and my tax-dollars being put towards reparations is any kind of "punishment". It's just my tax-dollars at work.
    – Dai
    Apr 4, 2019 at 11:26
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    @Dai: You could easily find US taxpayers - me, for instance - who'd disagree with that.
    – jamesqf
    Apr 4, 2019 at 17:05
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    @jamesqf Does money spent on wars punish pacifists? Do tax cuts for oil producers punish environmentalists? I challenge you to find a single person who is completely satisfied with how all federal tax dollars are spent. This argument is ludicrous. It sounds like something out of the sovereign citizen movement.
    – JimmyJames
    Apr 4, 2019 at 18:07
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    @jamesqf The taxes anyone of us pays, will necessarily also be used for things we don't need (eg. for schools for someone who's childless), don't want, or things we simply disagree with. Once the taxes are collected, the Government spend it as they see fit - just like you spend your pay-check without your employer weighing in.
    – Baard Kopperud
    Apr 4, 2019 at 22:20
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    @jamesqf: You do know what most taxes get spent on, right? People's wages. Even if you buy expensive goods (e.g. fighter planes), that money is still being predominantly spent on the wages of the plane builders (albeit not necessarily Americans). Even for raw resources, most money is again spent on people's effort in acquiring said resources. Money goes to people. Objects have no concept/need of money. ALL government expenses end up being given to particular people to their benefit. The distinction whether it's a wage or a post-factum recompensation is moot.
    – Flater
    Jul 11, 2019 at 15:51

5 Answers 5

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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.

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    But (1) the internment camps were built and run by the US federal government, whereas most slaves were privately-owned, and (2) the reparations were authorized "only" 43 years after the war, with many of the actual internees still alive.
    – dan04
    Apr 4, 2019 at 1:07
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    The prohibition against bills of attainder may not be intended to serve as a variant of the Equal Protection Clause... but the Equal Protection Clause is certainly a variant of the Equal Protection Clause. The 'reparations' proposed by Harris and Warren might not run afoul of the ban on bills of attainder, but they would almost certainly run afoul of the Equal Protection Clause itself unless they were actually based on being a descendant of a slave rather than on race.
    – reirab
    Apr 4, 2019 at 1:15
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    The reparations for interned Japanese-Americans is a different matter entirely, as it was paid to people who were actually directly victims of illegal governmental action (i.e. the actual detainees themselves,) not to just anyone with Japanese heritage or who identified racially as Japanese.
    – reirab
    Apr 4, 2019 at 1:20
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    @reirab - I find that highly unlikely. The Equal Protection Clause does not prevent bills that are narrowly scoped to serve a legitimate governmental purpose, even if they explicitly provide benefits to one group or another. That's why you can pass a law that explicitly benefits low income people (Medicaid), or elderly people (Social Security), or elderly people and people with disabilities (Medicare).
    – Obie 2.0
    Apr 4, 2019 at 1:39
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    @Obie2.0 Racial discrimination isn't a legitimate governmental purpose. SS, in theory, is supposed to benefit everyone. The idea was to set up a retirement system. Of course, the reality is another story and it's really probably not legal either (which is why FDR had to threaten to stack the Supreme Court in order to prevent it from being struck down.) Though it's illegality would be more due to the lack of any Constitutional power of Congress authorizing it than violation of Equal Protection. If reparations were based on actual slave ancestry rather than race, then they might pass muster.
    – reirab
    Apr 4, 2019 at 1:43
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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.

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    The defense I would use against such a lawsuit is not ex post facto, but corruption of blood.
    – Joshua
    Apr 3, 2019 at 19:49
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    I don't think the lawsuit idea is a very common proposal. Unlike taxes, it would encounter legal issues, as well as more practical issues. For instance, lawsuits against estates are barred after more than one year. Such a proposal would only make sense if the idea actually were what the querent assumes, to punish the descendents of former slave-holders, which isn't the case. More typical reasoning has to do with compensation or reduction of the racial wealth disparity.
    – Obie 2.0
    Apr 3, 2019 at 20:56
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    I highly doubt there's much inherited "wealth accumulated through enslaved labor" still around today. Slave owners got no financial compensation their freed slaves, the Confederate Dollar became worthless, and tangible assets were vulnerable to wartime looting or destruction. I guess the plantation land itself would be worth something. Still, how many present-day billionaires do you know of who got their family fortune by owning slaves?
    – dan04
    Apr 4, 2019 at 1:19
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    @dan04 - I don't think your assessment is correct. First, land was worth more than "something." A small farm can have over $100,000 worth of land value. Second, wartime looting existed, but it's a leap to say it would destroy most tangible goods without further evidence. Third, banks did exist back then, and many plantation owners had money in those banks (it wasn't all in Confederate Dollars...even mostly). Finally, many of those same enslaved individuals continued to be exploited via the sharecropping system, using infrastructure built while slavery was legal, further enriching these people.
    – Obie 2.0
    Apr 4, 2019 at 1:58
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    #1 presents amusing possibilities. There are undoubtedly a good many individuals who are descendants of both slave owners and former slaves: do these people sue themselves? This just points up a practical problem. The Civil War ended over 150 years ago, so figuring 25 years per generation, that's 64 CW-era ancestors per person. How many people even know (or care) who their great-grandparents were? I sure don't. (Even if you do geneology, there are plenty of people whose parentage doesn't exactly match records :-))
    – jamesqf
    Apr 4, 2019 at 5:42
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  1. Since no reparations proposal requires anyone to be disenfranchised, whipped, branded, imprisoned, or executed... it's not clear in what sense, (if any), "punishment" might be construed as occurring in the event of reparations. If one of the premises of this question is the exotic notion that all taxation is "punishment", this should be clearly stated in the question. If not, then there's no punishment, and the question is moot.
  2. Since there's absolutely no question of the fact of slavery, or so much of its unhappy aftermath, a trial for slavery would seem as pointless as having a trial to decide whether or not some disastrous tornado or hurricane had occurred.

Combining the previous two points, this question is like asking whether federal assistance for victims of California's wildfires violates the prohibition against Bills of Attainder because rendering such assistance would unconstitutionally "punish" the innocent citizens of Hawaii and Louisiana.

Generalizing: some disasters are caused by nature; some disasters are man-made like oil spills, great fires, great errors, harmful policies, wars, etc.; both types of disasters create victims, refugees, impoverishment, blight, and assorted lasting dangers to public safety and health.

Neglect doesn't scale up well; governmental neglect metaphorically unties those heraldic bundles of sticks, and in letting a few break, weakens the remaining bundle. In which sense governments that ignore and neglect disasters inadvertently invite and invest in additional disasters.

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    While point 1 certainly is true, the argument would be that a disparate tax might effectively constitute a fine, which can be a (mild) form of punishment. I don't think this is correct, because intent is important, as is the presence of a legitimate political purpose, but that would be the argument.
    – Obie 2.0
    Apr 3, 2019 at 21:04
  • @Obie2.0, I had appreciated that implied imputation, but it yet remains unclear as to the logical validity of the overall notion in the mind of the question's author. Fines are for reducing the frequency of certain minor crimes of negligence, but slavery was no careless misdemeanor.
    – agc
    Apr 3, 2019 at 21:18
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    @agc: Slavery was legal. Charging fines for it would violate the Constitutional prohibition against ex post facto laws.
    – dan04
    Apr 4, 2019 at 1:21
  • @dan04 - Indeed, but no one really is proposing that.
    – Obie 2.0
    Apr 4, 2019 at 1:34
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You can't call them "reparations" and then say they're a tax. The word "Reparations" means, according to Lexico:

the making of amends for a wrong one has done, by paying money to or otherwise helping those who have been wronged.

We don't use taxes to "make amends".

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  • The question doesn't use the word tax, can you elaborate?
    – JJJ ♦
    Jul 11, 2019 at 2:05
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    While the source you linked uses a person-to-person example, history provides another: after Germany lost WWI, the German government had to pay war reparations to the Allied Powers to the (original) tune of $33 billion. If the government were to pay, where else would that money come from besides taxes?
    – Punintended
    Jul 11, 2019 at 18:42
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You do realize what is legal or illegal, is often political

if it is politically acceptable, we will find a way to make it legal

if it is politically unacceptable, we will find a way to make it illegal.

why do you think men can walk around bare chested in america.. but women can't.

but women can wear bikini in america, but in saudi arabia they need to wear burqas...

Slavery was politically necessary at the founding of the nation, so it was legal, even Constitutional.

But then the civil war happened. Emancipation became a good way to weaken the other side. So Slavery became illegal.

Gold and silver used to be Constitutional legal tender. Now it is just a relic of a barbaric past (because wars are very expensive)

A century ago, alcohol was illegal and unconstitutional. Then it isn't.

Now weed is becoming legal.

If there is enough political momentum for Reparation. It will be legal. If there isn't, it won't be.

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  • "why do you think men can walk around bare chested in america.. but women can't" - why do you think women can't? Because this exact case has been argued in court.
    – MSalters
    Jul 12, 2019 at 12:10

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