At first blush, one may think that “reparations” are entirely something that has arisen with the context of 21st century American politics, but this is incorrect. The legal concept has been around for quite some time going back centuries here in America and even further in other countries.
Yet to simplify our current discussion, we will focus on the American examples of it, and future demands for it. Equally, we will define it to get our terms correct:
Reparations:
A : a repairing or keeping in repair
B reparations plural : REPAIRS
2 a : the act of making amends, offering expiation, or giving satisfaction for a wrong or injury
b: something done or given as amends or satisfaction[i]
Historically, the first example of “reparations” in America was in the year 1773 and involved a kidnapping case of one man (white) and another man (molatto). The case was Hendrik vs Greenleaf in Essex County, Massachusetts. Hendrik won and was compensated £18 in damages and costs.[ii]
Other examples during that ante-bellum period exist that dealt with former slaves suing their former masters for redress and receiving either land or a pension from the owner’s estate or the state government. Post-Civil War gives even more examples of land, cattle, or opportunities to purchase land prior to open sales to white southerners. Some of these programs worked well for the former enslaved black Americans, some did not.[iii]
Modern 20th century examples are reparations (is the better word “restitution”?) sought by various American Indian tribes over territory conquered, or treaties broken by the U.S. government.[iv] Equally, of note are cases brought by Japanese Americans for their wrongful internment during the wartime era of WW2 wherein freedom, personal property and businesses were lost. In the category of freedom and personal property, these losses cannot ever be made up. Nonetheless, The Civil Liberties Act was signed by President Ronald Reagan in 1988 for Japanese survivors of the internment. They were compensated by the United States government as it was the United States government that had committed the crime in the first place.[v]
Thus, the demand for reparations by moderns in the last 60 years or so is not something entirely new in the American experience. Indeed, in 1989, Congressman John Conyers, D-Michigan, introduced bill H.R. 3745, which aimed to create the Commission to Study Reparation Proposals for African-Americans Act. The bill was introduced "[to] address the fundamental injustice, cruelty, brutality, and inhumanity of slavery in the United States and the 13 American colonies between 1619 and 1865 and to establish a commission to study and consider a national apology and proposal for reparations for the institution of slavery, its subsequent de jure and de facto racial and economic discrimination against African-Americans, and the impact of these forces on living African-Americans, to make recommendations to the Congress on appropriate remedies, and for other purposes." (Preamble)[vi]
From this time forward, more and more legal cases have been brought to court and won by various organizations that have sought reparations for black Americans. Included in these actions should also be the various cities, schools, churches, and government organizations that have benefited from the labor of African slaves in the past. What is of interest in these situations is that said organizations did this voluntarily and not due to judicial action.[vii]
Going Beyond the Law?
What is new, however, is the insistence that all of America must pay “to eliminate the racial wealth gap between Black and White Americans” and pay now. Emphasis is on “all of America” as those are the fiscal implications of a bill introduced in Congress:
In 23-page legislation introduced Thursday, Rep. Cori Bush, D-Mo., called on Congress to adopt several measures aimed at righting historic wrongs, including urging the federal government to issue federal reparations to Black Americans and other reparatory justice efforts. A minimum of $14 trillion would be needed "to eliminate the racial wealth gap that currently exists between Black and White Americans," the resolution argues.
The United States has a moral and legal obligation to provide reparations for the enslavement of Africans and its lasting harm on the lives of millions of Black people in the United States," H.R. 414 declares.[viii]
Above noted “resolution” by Congress woman Bush (herself black) begs the following questions: which Americans should pay and which Americans should receive the payment? That is probably at the heart of the controversial issue due to the fact that many “Americans,” both black and white, have come to America since the Civil War, or the parents did. How does one sort out that ethnic demographic legally and economically?
If we stick to the definition of what a reparation is (or what people want it to be), and the purpose of it, how does one pay kidnapped Africans that have been dead for over a century? And even if they were still alive – which white people should do the paying? As to the “wealth gap” problem that Congresswoman Bush noted in her proposal, that has been answered intellectually by Thomas Sowell. Sowell suggests in his book Race and Culture[ix] that much of the “wealth gap” noted by Bush along with others over the years ignores personal preferences on how people choose to use both their free time and whatever money they do in fact have. Sowell equally notes in White Liberals and Black Rednecks[x] the tendency of certain people, white or black, to attempt to build a career seeking “justice” for past offenses for one group of people against another.
Most arguments today, whether on social media, university campuses, or in the halls of Congress seem more aimed at attracting attention and/or starting “a movement” of some type rather than logically addressing the feasibility of an economic move that would require either an enormous increase in taxation or the printing of money by the Federal Reserve which is already maxed out in debt.
The argument used to justify the reason this group of people should pay that group of people generally rests upon informal fallacies or the old “corruption of blood” theory that was principally ruled out by the Constitution that states:
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.[xi]
Granted, the noted constitutional clause spoke to the crime of Treason yet the legal concept still stands: just because one family member committed a crime you do not punish other members of said family living or yet to live. The biblical argument from Ezekiel 18:20 is essentially the same:
The soul who sins shall die. The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son. The righteousness of the righteous shall be upon himself, and the wickedness of the wicked shall be upon himself.
To be sure, many people have no interest in either a biblical argument nor a constitutional one yet historically both were foundational in American jurisprudence in the past. So likewise, were natural law principles in the area of crime and punishment.
Legal Foundations for Legal Restitution
Any legislation passed would have to be tied to the overall purpose of the law which is to protect life, liberty and property from harm or loss by another.[xii] The term commonly used in such situations when a “loss” has occurred is known as a “Tort” which is simply defined by Oxford English Dictionaries as: “a wrongful act or an infringement of a right (other than under contract) leading to civil legal action.”[xiii]
Legally, in the event of one person committing a crime against another person, we should both ask and answer these questions regarding what one party can sue another party for in a court of law by considering if “a Tort” has been committed.
Essentially, and according to Common Law jurisdictions, a “Tort” is a civil wrong committed intentionally or unintentionally by someone that causes a loss or harm to someone else thus resulting in legal action. The tort may or may not be a criminal act but might in fact be due to negligence. The victim of the harm can recover their loss as damages in a lawsuit. The plaintiff, however, must show that either the actions or lack of actions was the legally recognizable cause of the harm (in civil law jurisdictions this is called “delict”).
In his ground breaking book, Simple Rules for a Complex World, University of Chicago law professor Richard A. Epstein, wrote the following in explanation of the Tort concept:
This rule forms the basis of the law of tort. In its crudest and simplest form, the irreducible core of this body of law can be succinctly expressed: “keep off.” This two-word rule accurately describes the historical and intellectual thrust of much of the common law: to prevent trespass to land, larceny, murder, rape, and (by extension) infringement of patents – and indeed interference with the exchange relationships between parties. It is amazing how much, even in this age of heightened sensitivity to sexual harassment, you can learn about interactions between strangers by remembering to keep your hands to yourself. That precept was drummed into us as little children as one of those homespun homilies that make the world go round. But that rule also turns out to track the deep philosophical principle of respect for the autonomy of other individuals. This rule allows people to use, and use productively, the things they own without your being able to impose your will on them. And you will have the same freedom relative to them.[xiv]
The above will cause accusations of everything from “simplistic medievalism” to a “Quixotic foolishness.” Yet what is the alternative? We will only end up with more of the same legal over-reach that exists now with people not only being subject to an ever-growing intrusive legal system but equally having no real hope of legal redress in the face of both a CURRENT lawless population and an illogical legal system. Does the demand for reparations solve these legal problems or further them?
Understand, it is one thing to demand a court compensate you – pay a reparation – for a loss suffered by yourself for an event caused by another within the last year, or even decade, it is another thing to demand the court require a reparation for an event or events going back a half century or more in a situation that did not involve you because you were not born yet.
Perhaps we should also reconsider the terminology used to discuss the issue and admit we are talking about Restitution:
noun
- reparation made by giving an equivalent or compensation for loss, damage, or injury caused; indemnification.
- the restoration of property or rights previously taken away, conveyed, or surrendered
Therein is the rub; it is one thing to give back land to the American Indian tribes as an act of restitution for the purpose of reparation. It is another thing to demand cash payments from modern day citizens who never held slaves, stole property much less kidnapped people in the present. Indeed, it could be argued by the current payors that the American welfare system and all of its many forms and mechanisms have been the “reparation” and if the various recipients have done nothing after three generations of President Johnson’s “Great Society” perhaps that’s on them. That, and the fact that the American welfare system does not work, as Charles Murray has suggested in his groundbreaking book Losing Ground.[xv] Perhaps it’s time to rethink all of the various give away programs as Thomas Sowell has suggested in his book the Vision of the Anointed.[xvi]
Moving Forward?
When it is all said and done, the idea of supersizing a fallacious legal argument based upon yellow journalism and modern crimes, racially oriented or not, real or not, becomes problematic when applied to historical crimes such as kidnapping, slavery and land confiscation: if in fact we accede to the demands of every single person who demands a reparation in the name of this or that reasoning – when and where does it end?[xvii]
Will not the current Americans of whatever race that have had to pay feel resentment, not to mention the loss of cash due to the increase of taxation to pay for said “reparations,” especially if their ancestors came over to America post 1865 and lived in the North? What if the law changes and allows something similar to what is being demanded today – the heirs of past injustices – reparation payment – will demand something from the heirs who were benefactors of today’s “social justice” movement, so-called? What will happen when the current generation’s grandchildren begin to demand “reparations” from the heirs of the recipients of today’s reparations?
One cannot revisit the past or make right what was done wrong in the past. Indeed, the mere concept is, as Thomas Sowell suggested, a quest for cosmic justice[xviii] that, similar to the Holy Grail, is an impossibility to find and achieve. That, and the recipe for continued trouble, resentment, and unending strife (Proverbs 30:33).
Books on my shelf:
Simple Rules for a Complex World: https://www.amazon.com/Simple-Rules-Complex-Richard-Epstein
Victims Rights: the Biblical View of Justice: https://www.amazon.com/Victims-Rights-Biblical-Civil-Justice
Citations:
[i] https://www.merriam-webster.com/dictionary/reparation
[ii] https://guides.library.umass.edu/reparations
See 1700 – 1899.
[iii] https://guides.library.umass.edu/reparations
See 1700 – 1899.
[iv] https://guides.library.umass.edu/reparations
See 1900 – 1949 & 1950 – 1969 & 1970 – 1989.
[v] https://guides.library.umass.edu/reparations
See 1970 – 1989.
[vi] https://guides.library.umass.edu/reparations
See 1970 – 1989.
[vii] https://guides.library.umass.edu/reparations
See 1990 – 2009 & 2010 – 2019 & 2020 to present.
[xi] Constitution: Article 3: Section 3: Clause 2 – No Corruption of Blood
[xii] One real world example of an individual state doing just that was the “Personhood Amendment” being placed on the November, 2011 ballot. The purpose of Amendment 26 is to protect all life, regardless of age, health, function, physical or mental dependency, or method of reproduction, natural or artificial. In other words, the Personhood Amendment would effectively end abortion and cloning and recognize life as starting at the earliest biological moment, or fertilization, not a birth. This amendment was placed on the ballot in the state of Mississippi and could have been a precedent for other states to take charge of “life” in their own states also.
Said Amendment did not pass:
[xiii] Oxforddictionaires.com
[xiv] Richard A. Epstein, Simple Rules for a Complex World, (Harvard University Press: Cambridge, M.A., 1995; 1997), p. 91.
[xvii] Will Africans and black Americans begin to lobby the UN for reparations against other Africans whose ancestors has sold their ancestors into slavery in the first place? See: https://www.takimag.com/article/slaves-to-history/