Reparations are unconstitutional

American leftists, in their mad dash to virtue-signal how cool they are on every trendy Civil Rights cause, have signed on to the Reparations movement.  But they seem to be forgetting something important in their rush to fix the wrongs of history: reparations are unconstitutional.

It is called a "bill of attainder" — basically where the Legislature acts as a court.  The bill of attainder is a law that 1) creates a class of people and 2) declares them guilty of a crime and 3) then punishes them based on that declaration.

This is exactly what reparations does.

So, when discussing reparations, we have to ask: does the law create a punishment?

The answer is a resounding "yes."  Those pushing for reparations have made no secret that reparations would be a punishment.  They are going to take money (which is property) from one class of people and give it to themselves for the wrongs of the past.  

Second, these proposed bills create a class of people: slave owners and their offspring.  But all the proposals I have seen so far take it a step farther.  One need not just be a slave owner or his progeny, but also be white.  Black slave owners?  Off the hook.  Native American slave owners?  Off the hook.  The law would apply only to whites.  They are the guilty class that society is looking to punish.  The Supreme Court has stated that the "class" of people can be as small as a single individual.

Since the laws all being proposed declare that only whites are guilty, it is a racist law.  That means most reparation laws would be a violation of the 14th Amendment, which guarantees equal protection to everyone regardless of race.  This in turn would prompt the Court to use strict scrutiny when reviewing the reparations law, but I digress.

The last part of the court test is, would this class of individuals otherwise have legal protections?  Again, the answer is "yes."  The class of individuals in reparations laws are being deprived of their property.  It is being seized from them.

And why is it being taken?  To "correct" the wrongs of old.

A clever reader would point out that when slavery was being done, it was legal.  This is true — which means reparations laws are also ex post facto.  An ex post facto law is a law that punishes an act in the past that was legal when it was done.  Ex post facto laws are also unconstitutional.

The bottom line is that reparation laws are invalid.  Any good government would not pass them, and any good court would strike them down.  The question is, how "good" are our government and courts in 2023?

Jeremy Meister is a historian and legal scholar in the Midwest.  His email is

Image via Pxfuel.

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