In the wake of the recent vote in the House of Representatives to impose a 90 percent tax on those goddamn AIG bonuses, high-powered legal thinkers like Howard Fineman and Lawrence O’Donnell have weighed in on the constitutionality of the measure.
Finally! How were the rest of us supposed to be able to figure out whether that shifty lower house of Congress was trying to take away our precious right to be paid millions of federal dollars for performing our private sector jobs in the worst way imaginable without the sage analysis of a Newsweek hack and an oily beltway insider/actor? According to Fineman, this new tax may even be double unconstitutional(!), while O’Donnell praised Nancy Pelosi’s decision to put the clearly unconstitutional tax measure forward as a brilliant parliamentary move designed to “trap” Republicans in their own hypocrisy. Savvy!
There’s just one problem with the Fineman-O’Donnell doctrine: The ex post facto clause and the prohibition against bills of attainder are widely understood to apply only to criminal laws –not the tax code. And most of us know that Congress is constantly reshaping the tax code to encourage certain behaviors, such as buying a house, and disadvantage others. If you have ever tried to cash out your 401(k) before turning the magical age of 59 and one-half-years old, then you know what I’m talking about.
But Fineman and O’Donnell (along with many others, including MSNBC’s Chris Matthews and the Washington Post’s Charles Krauthammer) shouldn’t be discouraged. Everyone knows that our constitution is a living document whose genius lies in its ability to be reinterpreted for changing times. These Betsy Rosses of the new millennium clearly think it’s time for our courts to expand their interpretation of the ex post facto clause and the prohibition against bills of attainder. After all, these clauses haven’t been used in years. I mean when was the last time you heard about Congress passing a law that tinkered around with the retroactive criminal liability of an individual or discrete group of people? That would be positively un-American! Oh wait.