Wednesday, March 25, 2009

AIG, Congress, Meet James Madison

Laws that are enacted in anger and haste are no less problematic than the angry letter to a spouse or friend that seemed justified at the time ...

The Cool Justice Report
March 25, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

"Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community."
-- James Madison, in the Federalist Papers (Number 44, 1788).

Art. 1 section 9 of the US Constitution: "No bill of attainder or ex post facto law will be passed."

The Bill or Writ of Attainder was viewed as trial by the legislature -- not the judiciary -- and thus this constitutional prohibition was aimed at preserving the separation of powers.

An ex post facto law is one that is passed after an event that is made to alter the legal ramifications of that event. Generally, such laws are viewed as unconstitutional.

These ancient common law concepts were important to the framers of the Constitution as our country sought to define its social compact. Through the evolution of our jurisprudence they rarely have been invoked.

From time to time, however, well-meaning legislators seek to impose quick solutions to imminent social and political issues.

The Congress's response to the AIG bonus fiasco is one such instance. While moral outrage and indignation are appropriate responses to the apparent greed of a select few, legislating responses to these specific acts invites constitutional scrutiny. Even more so, enacting a tax amendment to purportedly target these recipients, while appeasing the populace, is creating a dangerous effect.

Laws that are enacted in anger and haste are no less problematic than the angry letter to a spouse or friend that seemed justified at the time but on later sober reflection only served to exacerbate a difficult situation.

Congress failed to properly restrict the use of the bailout money that was ultimately filtered to the AIG bonus recipients. To atone, this series of confiscatory tax bills have been proposed, in an effort to seize the money back. That may all be well and good to assuage the collective guilt of Congress, but the fear is that, as with any knee-jerk reaction to an aggravating event, it may result in a much broader sweep. Without careful study and debate, hastily passed tax increases could affect many more than the handful of AIG employees who continue to retain the bonus money.

When the Cheshire murders were reported the public outrage led to an immediate moratorium on parole releases. The public was horrified that those alleged to be responsible for these horrific crimes had been recently released on parole. That outrage, and the knee jerk reaction to it, created a massive logjam in the parole process.

Hundreds of deserving inmates who had dutifully worked at their rehabilitation were put on hold while the public's anger simmered. Granted, the parole process doesn't always work. Recidivism will always be a problem; but there are those for whom incarceration is a life changing process. Many of those people, ready to return and rebuild their lives, saw their opportunities for release delayed as politicians attempted to atone for some having made a bad decision releasing those accused of the Cheshire murders.

As with the letter written in anger, Congress should take time to consider what collateral damage hasty remedial efforts may create before any drastic, pointed measures are enacted on emotion.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. His column also appears in the Sunday Norwich, CT Bulletin. Website,

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  • 1 comment:

    toronto real estate agent said...

    Not only the 90% tax was unconstitutional. What is worse that coming up with the case publicly damaged the companies profile or image. And since the government owns AIG by 80%, their ultimate goal should be to get the company up and running as fast as they can. Creating an environment where the company must change its name for the shame of it isn't exactly the way to go forward.

    Take care, Julie