Reparations are Unconstitutional!

Published on April 19, 2006 By Gideon MacLeish In Politics

As the debate goes further on reparations for African Americans for years spent in slavery (despite the fact that no African American living has lived under LEGAL slavery in America), it is important to note why the reparations movement should NEVER be successful. Pro and con arguments can be advanced, but the simple fact is, reparations as proposed are unConstitutional.

You see, our Constitution specifically prohibits the introduction of ex pos facto laws. That is, you cannot impose a penalty on someone for a crime that was legal at the time of its commission. And while there is no question in my mind or that of most Americans that slavery was evil and morally reprehensible, it was, technically legal until the ratification of the 13th amendment. And the sons of former slaveowners should not be forced to pay a debt for their ancestors' participation in a legal, though vile, institution.

Now, I have little doubt that there were a few individuals in the Reconstruction South who violated the laws, either through outright slavery or through the practice of paying their workers in scrip rather than legal tender. When and if those persons are shown to exist, their descendants should have some financial culpability for the illegal profits of their ancestors during that time period. And there are certainly several businesses and individuals who stand morally, if not legally, culpable for their actions in oppressing minorities, most notably African Americans, in this country. It would be a good show of faith for them to help right the wrongs of the past, certainly. But to require it, through law, would require an amendment to the Constitution.

And I, for one, hope that doesn't happen anytime soon.

Comments (Page 2)

kingbee

on Apr 19, 2006

while i'm also unsure whether there's some recent event inspired gid's article, i gotta say i'm all in favor of recapturing all reparations paid to families of anyone other than emergency personnel who died in the wtc attack on 911 (survivors of pentagon military personnel shoulda received whatever compensation due the families of any other combat casualties).

i didn't fly those planes. i didn't employ any of the victims. even if i did, why should i--or you or anyone else except their insurers--have to pay their families millions in reparations, especially millions in presumed lost earning. for all i know, half of em were a day away from degenerate crack addiction.

kingbee

on Apr 19, 2006

i thought chomsky was a lot older...and yet that looks like a recent photo.

Larry Kuperman

on Apr 20, 2006

The Libertarian party has come out against reparations, which may be the source of Gideon's complaint. Reparations are NOT a punitive measure, so Ex Post Facto arguments are not applicable. No one is suggesting arresting and bringing to trial some old Southener who owned slaves "legally" before the Civil War, as far as I know. The "Unconstitutional" argument is specious in this instance.

Here's an article explaining Ex Post Facto for anyone who wants to learn more: Link

However, reparations have long been a part of American policy. Allowing Native Americans to run casinos on land given them (given BACK to them might be more accurate) is an example of positive reparations. The US is currently paying reparations to the families of Japanese Americans for losses that occured during World War II.

At the end of the Civil War, land was ceded to slaves. Remember the "40 acres and a mule" lesson from history? Much of this land was stolen shortly thereafter.

Here is a good article on reparations for slavery that is, I think, fairly unbiased: Link

BakerStreet, your argument about who owns corporations that benefitted from illegal acts doesn't hold water for me. It smacks of "We stole it fair and square, now we get to keep it." If shareholders invest in a company that engaged in immoral practices (I think slave labor would get consensus as being "immoral") then they may have to pay. Johns-Manville sold the US Government asbestos for the Liberty ships of World War II, poisoning thousands of men who volunteered to work on those ships. Company documents showed that they knew it would cause cancer and asbestosis for anyone that worked with it. A court found them liable forty years later. Yes, some innocent shareholders suffered a loss in stock value. But the debt to the families of the men that the company killed outweighed the loss in stock value. Thats what courts do, they mete justice.

If I steal your money (or land or property) and hold on to it for forty years or two hundred years or whatever, the original wealth and accumulated interest should still be yours.

Gideon MacLeish

on Apr 20, 2006

Ahem....not in MY book.

If someone broke the law AFTER slavery was repealed, then their estates SHOULD be liable for that law breaking, in my opinion. Obviously, someone's not going to go after $25 from Farmer Joe's estate, but if a large corporation made sizable profits AFTER the repeal of slavery because the law was broken, that corporation should not be above responsibility for their actions, provided the descendants filing can PROVE that their DIRECT LINE ancestor worked for that corporation during that time period.

Gideon MacLeish

on Apr 20, 2006

Reparations are NOT a punitive measure, so Ex Post Facto arguments are not applicable.

Actually, ex pos facto laws HAVE been held to apply to certain civil cases as well, Kupe.

drmiler

on Apr 20, 2006

However, reparations have long been a part of American policy. Allowing Native Americans to run casinos on land given them (given BACK to them might be more accurate) is an example of positive reparations. The US is currently paying reparations to the families of Japanese Americans for losses that occurred during World War II.

Actually Larry I think you'll find that we do not allow them to run casinos. They basically are a nation unto themselves including having their own law enforcement. This much I do know. Regular law enforcement is not even allowed on the reservation unless they have been asked to come. And as far as the Japanese go....I think you'll find we're only paying those that were here in America that suffered losses when we unceremoniously dumped them into the camps.

bakerstreet

on Apr 20, 2006

...and there's a supreme difference between paying people who are wronged, and paying the grandchildren of people who are wronged who haven't been wronged. The people asking for reparations haven't done any unpaid labor, and there's no way in a court of law you could prove that your state would be any better had your great, great grandfather not been a slave.

Kupe's opinion is one that is pretty widely held, but I think making more victims is counterproductive. There's a basic need to right wrongs, even when there's no way to ever really compensate for them. That need can become so great that you are willing to do harm to innocent people to accomplish it.

I have no doubt you can point to numerous instances where people were willing to punitively fine people who are guilty of nothing, and I am sure there are a lot of people who would feel comfortable taking their money from them. I'm not one, and I don't believe for a second that anything is served by stealing more money in the name of the original evil. Two wrongs do not make a right.

To bang on and on on the idea that this isn't punitive is silly. Of course it is punative. Slaves weren't owed wages, and owning them was legal. The only possible reason for this is to "correct" an imbalance in wealth, taking wealth away from person x, who doesn't deserve it, and giving it to person y, who does.

If you don't think it is punitive, consider someone walking up to you on the street, showing you a check your great, great, great grandfather bounced, then seizing the money from you. It's idiotic. If we aren't liable for the debt, then the only possible reason to ask us to pay it is for moral reasons.

To take money from us, when there is no possible way of showing a legitimate, quantifiable debt, in the name of a moral statement because of a previous wrong, is punitive. Under every other standard there would be no way we'd owe anything at all.

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