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Yanessa L. Barnard |
Excerpted from: Yanessa L. Barnard, Better Late than Never: a
Takings Clause Solution to Reparations, 12 Washington and Lee
Journal of Civil Rights and Social Justice 109-151, 125-151 (Fall,
2005)(Student Notes)(278 Footnotes0
To establish slavery as a taking, one must recognize that slaves had
a property interest in their persons. The Supreme Court itself, at
the height of the U.S. slave trade, acknowledged that every man has
a natural right to the fruits of his own labor. The fact that no one
can deprive him of this fruit, and appropriate it against his will,
is a necessary result of this admission. Philosophers recognized and
relied upon by the Framers in developing the Constitution, such as
Locke, have long discussed the idea that bodily integrity may be an
independent right.
Locke stated that a man's property included his life, liberty, and
estate. He included life and liberty as elements of property. For
Locke, one primary purpose of establishing government was for the
protection of this fundamental right to property, including
self-ownership. Although the right of self-ownership is subject to
limitations, one's property in one's self, stated Locke, is
inalienable.
Nearly all the Framers owned slaves-Jefferson owned as many as 200 -
slaves and Locke himself penned the pro-slavery Carolina
constitution. But even James Madison argued that property "embraces
everything to which a man may attach a value and have a right." He
also stated that a man has an important property interest in the
safety and liberty of his person, that he has an equal property
interest in the free use and application of his faculties, and that
as a man is said to have a right to his property, he may also be
said to have a property interest in his rights.
Although legal scholars typically accept only a minimal definition
of self-ownership, a more expansive perspective exists to define
self-ownership as ownership of one's liberty. This ownership is less
about the body and more about the ability to make decisions and
control one's destiny. It is this perspective that relates to
constitutional rights of privacy and integrity. Slaves possessed
these rights under both the limited and expanded definitions of
self-ownership.
B. Slavery Was Illegal Before 1865
As early as 1770, a colonial Massachusetts Superior Court found
slavery, pursuant to state common law, to be unconstitutional. In
1783, the court took steps to further analyze whether slavery was
legal under the Massachusetts Constitution. It found that nowhere
did the State Constitution expressly enact or establish slavery. The
Massachusetts court further held that the idea of slavery was
inconsistent with the nation's own conduct and the Constitution. As
a result, there could be no such thing as perpetual servitude,
unless the individual forfeited his liberty as a result of criminal
conduct or by personal consent or contract.
Prior to these cases, however, the colonies themselves had outlawed
slavery. The Virginia colony, for example, stated that people in the
colony "shall have and enjoy all liberties, franchises and
immunities within any of England's other dominions, to all intents
and purposes as if they had been abiding and born within the realm
of England."
A number of other colonies wrote charters to the same effect. In
fact, "there were no colonial enactments that authorized the holding
of slaves, or defined the relation and condition of slavery." For
example, the state of Georgia commenced under auspices decidedly
hostile to slavery. General James Oglethorpe, a member of the
British Parliament, created the colony with the idea of opening the
area for England's poor and for persecuted Protestants of all
nations. As a result, the colony's governing trustees strictly
prohibited slavery, and declared it to be not only immoral, but
contrary to the laws of England.
In the late 1700s and into the 1800s, a number of cases emanating
from state courts again held that slavery was unconstitutional. In
Commonwealth v. Jennison, the Massachusetts Superior Court found
that slavery had not been expressly enacted or established. In fact,
the court called it "a mere practice," and stated that the
Constitution declared all men were born free and equal, thus slavery
was totally repugnant to the nation's ideologies.
In 1837, the Ohio Supreme Court came to the same conclusion, albeit
by different reasoning. The state arrested James Birney for
knowingly harboring a fugitive slave. In his defense, Birney argued
three points: 1) slavery is unconstitutional, so 2) he could not
have harbored a slave, as it was a non-existent status in law, and
3) certainly could not have done it knowingly. The Ohio Supreme
Court unanimously ruled in Birney's favor, on the basis that Birney
could not be guilty of the alleged criminal acts without an averment
that he in fact knew his actions were illegal. The court noted the
issue of slavery was too important to discuss if it was not
necessary to resolving the case.
Cases of this nature are prevalent through this nation's early
history. The question then is how and why slavery persisted.
Historians have proffered a number of arguments ranging from greed
to Christian duty to explain the "Why" aspect of this conundrum.
Indeed, the truth may never be known, however, the "How" portion of
the mystery is clear.
When the Framers of the Constitution met to mold the principles of
this nation, the issue of slavery arose to confront them, forcing
them to reconcile it with their philosophical ideals of human rights
and personal dignities. Whereas they could have followed English
common law, colonial charters, colonial courts, and the principles
that stated they themselves, as Whites, could not be enslaved, they
chose instead to compromise their principles for the sake of
political support and regional peace. It was this newly established
federal regime that instituted and protected slavery. It was the
Founders, who proclaimed themselves and all men free of English
tyranny, who created the basis on which states and private citizens
would declare their right to buy and sell other humans like chattel.
The federal government laid the foundation for slavery, for
violations of human rights, for the subsequent discrimination that
persists today, for the sake of politics, federal revenues, and
personal comfort of its political leaders.
C. Federal Responsibility
Slavery, as would be defined and practiced by the American
colonists, was virtually non-existent in England in the 18th
century. In fact, a mere fifteen years before the Constitutional
Convention, the King's Bench, an early English equivalent to the
modern U.S. trial court, presided over by one of the most important
and well-regarded judges of the time, found that slavery could not
be held to exist without positive law. Since none existed in
England, slaves had to be freed. Despite the fact that Somerset v.
Stewart should have become a part of American common law, the
absence of institutionalized slavery in England served only to
motivate the colonial governments to pass statutes that created
slavery as a legally protected practice.
The federal government went so far as to institutionalize slavery in
its most precious document, even though these provisions would
create incongruence in the document. For example, Article I, § 9 of
the Constitution permitted the federal government to obtain monetary
benefits from slavery. The article states that "a tax or duty may be
imposed on such importation not exceeding ten dollars for each
person." The plain meaning of this language indicates that the
federal government intended to derive monetary benefits from the
slave trade. The logical extension of this is that the government,
by retaining the authority to tax the traders' property, recognized
the slaves as property, with its authority enforceable under the
Constitution.
Furthermore, Article IV, § 2, clause 3, the Fugitive Slave Clause,
recognized the individual property rights of a slave owner in a
slave, indicating a constitutional protection of slave property.
Article IV implicitly sanctioned the product that flowed from slave
property, namely, slave labor.
The Constitution's endorsement of slavery is clear. Just as clearly,
the Fifth Amendment made it a violation to take property without
compensation. Existing together, the two concepts are in conflict
with one another. Unless we are to deny the plain meaning of the
document's words as they pertain to slavery or to deny that the
Fifth Amendment requires compensation, it can only mean that the
slaves' constitutional rights to own property were violated and that
they are owed compensation for the taking of their property.
The federal government even used the geographical expansion of the
country as a vehicle for increasing the number of slave states, and
ultimately the number of slaves. The government did this through the
Missouri Compromise, which admitted Missouri as a slave state and
Maine as a free state. This behavior continued into the mid-19th
century: between 1821 and 1848 every free state (Michigan, Iowa, and
Wisconsin) was countered with a slave state (Arkansas, Florida, and
Texas); the Compromise of 1850 admitted California as a free state
in exchange for stricter fugitive slave laws; and the
Kansas-Nebraska Act divided the territory such that the former was a
slave state and the latter was a free state. The government actively
ensured the longevity of slavery.
After the federal government adopted slavery, government actors
conducted auctions, included slaves as probate property, allowed
them to be seized as assets, and passed regulations facilitating the
recapture of runaway slaves. The language of the Fugitive Slave
Clause itself indicates that slavery was a creature of statute and
regulation.
Finally, the Supreme Court itself recognized slavery, stating that
the Framers directly sanctioned slave property. This is notable, and
when considering the outcome of Harry v. Decker, supports an
argument that the Court proceeded based on personal biases. In
Decker, a case with issues identical to those in Dred Scott, the
Mississippi Supreme Court granted the slave his freedom. The fact
that the highest court of a slave state would come to such a
conclusion is incredible, but also an indication that even those
states steeped in slave culture could and did recognize limitations
to the institution already prescribed as unconstitutional.
Despite this, the Supreme Court protected the institution pursuant
to the Fifth Amendment. The Fifth Amendment prohibits the federal
government from depriving a property owner of their property without
due process. The Court reasoned that slave property was similar to
other forms of property and was thus entitled to the same
constitutional protections. The Court subsequently recognized the
property right of slave owners.
IV. Slavery as a Taking
A. Purpose of the Takings (Just Compensation) Clause
It has long been difficult for constitutional lawyers to distinguish
between valid exercises of "police power," valid even though a
person may be less well off than before the regulation, and
governmental "takings" that are not permitted unless monetary
compensation is paid. A related problem, albeit one not discussed in
this Note, is how much compensation is due when property is taken.
Despite its complexity, the Fifth Amendment has become the central
constitutional restriction on government confiscation of private
property and nearly all state constitutions contain similar
language.
According to one preeminent legal scholar, there are at least five
recognized compensable takings: 1) any physical occupation of real
property, even if for only a limited period; 2) regulations that
deny the owner all economically beneficial use of the property; 3)
conditional approval of improvement to property, where the
conditions are unrelated to the development or when the conditions
for approval relate to the development but are disproportionate to
the scope or degree of the problems any development could cause; 4)
expropriation of cash; and 5) regulations that greatly impact the
economic situation of the owner, the regulation's consistency with
reasonable investment-backed expectations, and the general character
of the government's action.
There are a number of theories regarding the purpose of the Takings
Clause. The two theories discussed here qualify slavery as a taking,
mandating compensation.
1. Frank Michelman
Frank Michelman has argued that the Takings Clause offers a way to
adjust transactions that increase societal wealth but decrease the
wealth of particular parties, creating transactions that benefit all
parties. He argues that takings should be evaluated under a utility
or a fairness analysis, both of which support compensation for
slavery.
a. Fairness
Compensation for the involuntary transfer of property is appropriate
if redistribution is unfair. Michelman suggests that compensation is
required to achieve fairness under certain circumstances, including
ones in which one party suffers an unusually great harm. This
analysis dictates that compensation is appropriate where a societal
taking has unequally impaired liberties, where harm is
disproportionately focused on certain individuals or where "visible
reciprocities of burden and benefit" are not present.
Slavery meets each of these compensable alternatives. The taking of
the slaves' property interest in their self-ownership concentrated
harm (loss of identity, decision-making power, lack of physical
mobility) on certain individuals (African-Americans) with no
reciprocity (uncompensated labor). The benefits accrued affected
only one group (the slave owner and arguably, Whites generally),
while the other suffered immense harms. The result has been long
term inequities, including the impairment of liberties with respect
to education, property ownership, and employment opportunities. The
fairness analysis therefore provides a takings claim for slavery.
b. Utility
Under Michelman's utilitarian analysis, compensation is appropriate
where the negative effect of an action is greater than the cost of
compensation. Michelman argues that it is just to compensate victims
because the risk of exploitation by the majority creates a greater
disincentive for minority parties to contribute to society. This
compensation is due where societal actions cause disproportionate
burdens to fall on particular parties, where actions tend to channel
benefits and burdens to different groups, and where there has been
capricious behavior on the part of the majority.
Slaves, in the sense that they were a powerless minority, had their
self-ownership confiscated by the exploitive majority. This
confiscation of property caused a disproportionate burden to fall on
this particular group of people. Once confiscated, this property
created benefits to one group, the slave traders and slave owners,
while harming another group. The fact that the slaves were grouped
together and identified as aninferior race is evidence of the
majority's capricious behavior. The utilitarian analysis, like the
fairness analysis, also provides for takings compensation for
slavery.
2. Richard Epstein
Richard Epstein asserts that the Takings Clause exists "to guarantee
a proportionate distribution of gains among the parties from whom
the government took private property." Like any private actor, the
government should be held accountable for the harms it inflicts on
parties for its own benefit. Epstein further argues that the greater
the number of takings, the greater the wrong.
According to Epstein's approach, the taking of slaves' property
interest in their self-ownership is a compensable taking. If the
Takings Clause was designed to equitably distribute gains from
confiscated property, then slaves should receive compensation to
offset the fact they received none of these gains. The result of
this confiscation culminated in a taking. Epstein's belief that the
greater the taking, the greater the wrong, suggests that slavery
ought to be compensable, considering the mass confiscation of
property.
B. Takings Clause Violations
The Takings Clause states, "nor shall private property be taken for
public use, without just compensation." A Takings Clause violation
claim has four prerequisites: 1) private property must exist; 2)
this property must be taken by the government; 3) the taking must be
for public use; and 4) the original owner must not have been
compensated for the taking.
Elements one and two will be discussed in detail below. Elements
three and four however, are not discussed as thoroughly since their
existence is of little doubt. Clearly the reason for the utilization
of slaves was for the performance of manual labor. This labor
ultimately made it possible for the public to use raw materials that
otherwise would not have been produced as quickly, abundantly, or as
cheaply as they were as a result of this "peculiar institution." The
public reaped the benefits of slavery in their daily lives. The
results of slavery manifested themselves in cheaper prices at the
market for individuals and an increased availability in raw
materials that allowed Southern planters to expand their market
beyond that of the industrial North, and into Europe. In addition,
the returns allowed plantation owners to continue to reinvest and
expand their production capabilities.
Economic studies have demonstrated that the Southern economy was
driven by slave labor; one estimate places the slave contribution to
the U.S. economy at $40 million. This sum is in addition to the
revenue raised as a result of the federal and state property taxes
on the slaves themselves. Indeed, one source states that between the
colonial era and the Civil War, slave taxes raised more revenue than
any other source.
Just as clearly, slaves were not compensated for the taking of their
self-ownership. Although there were promises of "Forty Acres and a
Mule" during the Civil War, by and large, the land and beasts never
materialized. Even if they had, it was for payment for the slaves'
loyalty and participation in military regiments, not for the illegal
taking of their property. Further, although it may be tempting for
opponents of reparations to argue that emancipation was in and of
itself compensation, restoration of the taken property is
insufficient compensation. After all, what was taken cannot be given
back with the owner restored as new, as is evident by both the
blatant and subtle racism directed toward African-Americans today.
The taking continued for too long, resulting in effects too
devastating to ignore.
Physical and regulatory takings can be permanent or temporary, but
courts have been reticent to find a temporary invasion of property
to be a taking. They have nevertheless, even if the taking has been
only partial, allowed compensation. Permanency, in terms of the
length the government has occupied the property, does not mean
literally forever in the sense that most people would understand it.
What has been permanently taken is not the property itself, but the
value of the property for the term of the invasion. In at least one
case, the Supreme Court has found the length of the occupancy to be
irrelevant if the purpose of the taking was for the benefit of the
owners. In YMCA v. United States, fairness and justice did not
require compensation. This is not the case regarding the physical,
regulatory, and derivative takings from African-Americans throughout
early U.S. history. The result of this confiscation culminated in a
taking. Epstein's belief that the greater the taking, the greater
the wrong, suggests that slavery ought to be compensable,
considering the mass confiscation of property.
1. Physical Taking
In first year property law courses, law students are instructed to
think of property as a "bundle of sticks." Physical takings involve
the appropriation of the title to property of one or more of these
sticks that comprise the property owner's interest. Governmental
imposition of an easement will trigger the Takings Clause, for
example. Title remains with the owner, but the government has
nonetheless taken a valuable stick from the bundle.
The property right of self-ownership is inalienable. Unlike other
property rights, it may not be freely traded, bought, sold, or
otherwise treated as a transferable commodity. To be able to do so
would undermine personal identity and violate our deepest
understanding of what it means to be human. This inalienable nature
is not the same as a person's property right in removed body parts,
deemed by at least one court to be an alienable property right.
One obstacle to recovering for a taking is the possibility that
slavery was not an institution involving property at all, but was
merely a system of contractual agreements between employers and
employees. For this to be true, however, slavery would have to be
the same, or at the very least, similar to indentured servitude or
peonage.
However, unlike slavery, peonage and indentured servitude involve
rights enforceable against specific persons. These rights have
traditionally been associated with contracts. Indentured servants
obligate themselves to another person for a specified length of
time. The master's rights of enforcement were against the person
contractually subject to the obligation. The relationship was often
defined based on a debt owed.
Likewise, peons were subject to contractual obligations. No such
contract existed between slaves and slave owners. The slaves'
existence was solely at the mercy of the owner. History explains
that slave owners dictated the amount and character of the slaves'
food, clothing, and housing. They decided whether the slaves learned
to read and write, were permitted to marry, and the conditions of
their "employment"-whether they were to be a field or house slave.
Slave owners, as a result of the absence of positive law prohibiting
the murder of slaves, quite literally held the slaves' lives in
their hands.
Slavery, unlike peonage, is a right enforceable against a large
group of undetermined persons. These rights have been associated
with property, not contracts. In fact, in most jurisdictions, slaves
were prohibited from owning real property, entering into contracts,
inheriting property, voting, marrying, or obtaining an education
since all of these required signatures and the ability to direct
one's destiny. Not even the inclusion of slaves into the political
representation debate can change the fact that slaves were property.
A second obstacle is the court system itself. Courts have clung to
the idea that the government is required to pay compensation only
when it has confiscated the entire bundle of sticks. This narrow
interpretation would allow the government to regulate away nearly
all individual property rights, without having an obligation to
compensate the owner, even though the owner now possesses only an
empty title. This cannot be consistent with the core purpose of the
Just Compensation Clause. In fact, the principles behind the Clause
suggest that if property is a bundle of sticks, then taking merely
one stick lessens the property's value and something has been taken
from the owner. The inquiry that remains is not whether the taker
owes the owner for his loss, but how much the owner is owed for the
appropriation of his property. In regard to slavery, the federal
government appropriated the entire bundle, completely extinguishing
the slaves' property interests.
In addition, given the inalienable nature of the property right, and
the purpose of the Just Compensation Clause, it is unlikely that
title to the slaves' property right of self-ownership was
transferred to the government. Since the interest in the property
was not voluntarily transferred, yet clearly was taken, a taking
resulted: the government confiscated all of the sticks including
life, liberty, and the benefit of one's labor.
2. Regulatory Taking
The regulatory takings doctrine allows compensation for regulations
that deprive an owner of a substantial amount of property value.
First recognized in Pennsylvania Coal Co. v. Mahon, compensatory
recovery requires a regulation that affects property interests.
Until Mahon, federal courts only recognized physical takings claims.
The Mahon Court restates the general rule that although property may
be regulated by the government, regulations that go "too far" will
be deemed a compensable taking. The focus on going "too far"
indicates the Court's intent to recognize partial takings as opposed
to complete appropriation. The Court's effort to expand takings goes
beyond that intended by the Framers. The drafters of the Bill of
Rights intended the Takings Clause to be limited only to the
government's physical seizure of private property. The Court has
admitted as much, but has nonetheless continued to entertain
regulatory takings claims.
The Supreme Court more clearly defined the issue in the Penn Central
Transportation Co. v. NYC test as it attempted to distinguish
partial takings from government action that confiscates private
property in its entirety. The factors required to establish a
complete taking are more difficult to overcome given that the
potential award will be more costly than the award such a plaintiff
could receive under a partial takings claim.
In allowing for compensation according to the Penn Central analysis,
the Court created a three part test for measuring regulatory
takings: 1) the economic impact of the regulation on the claimant;
2) the extent to which the regulation has interfered with distinct,
investment-backed expectations; and 3) the character of the
governmental action. The regulatory framework that facilitated
slavery is one that qualifies as going too far, fulfilling the
requirements of the Mahon test, and producing a partial taking. The
government's actions, however, also fulfill the requirements of the
Penn Central test, producing a complete taking of the slaves'
property interest in their self-ownership.
Considering that slaves never have been compensated for the loss of
their property, the economic impact of the taking was and is
currently devastating. One can only imagine if a slave had been paid
a mere fraction of the value of her labor, it may have been feasible
to buy freedom or at least pay a slave owner to prevent the owner
from selling members of a family. Likewise, if slaves had been
compensated and been able to save their money, passing it from
generation to generation to ensure the survival and well being of
their family members as Whites did, it is possible that modern
vestiges of slavery, discrimination, and cultural, political and
economic destruction of African-Americans at large, may have been
prevented.
The government's activities speak directly to the character of the
government's action throughout the time period. In Penn Central, the
Court noted that in deciding whether a particular governmental
action has affected a taking, courts focus both on the character of
the action and on the nature and extent of the interference. From
the act of capturing and shipping the slaves to the daily control of
their activities and the restriction of their rights, the federal
government paid only lip-service to the treaties and laws that made
the transportation of slaves from Africa illegal. In fact, only the
British committed substantial naval and political resources to
stamping out the illegal trade. The United States did little and,
until the Civil War, actually obstructed the suppression of the
slave trade by refusing to allow the British to board and search
American ships. Slave traders, whether American or not, routinely
used the American flag as a cover for their crimes.
The federal government's conduct toward African-Americans
constituted extreme behavior that sanctioned the enslavement of a
race. The beatings and lynchings, and threats of being beaten and
lynched, were prevalent throughout the slave era. These acts caused
irreparable physical harm and imminent apprehension of bodily harm
and death. In addition, the government perpetrated repeated acts of
false imprisonment when it intended to and did confine the slaves
within fixed boundaries, directly confining them while they were
conscious of the confinement and were harmed by it. The beginning of
this imprisonment began with the initial capture and transportation
of Africans to the United States. This control over the slaves'
movement continued throughout plantation life.
This manner of treatment is facially outrageous, but even more so
beneath the surface because the government knew, or should have
known, that this treatment would cripple African-Americans socially
and politically thereafter for generations to come. Even after
emancipation the federal government allowed the states and private
individuals to make concerted efforts to deprive African-Americans
of opportunities relating to education, employment, voting,property
ownership, and personal mobility. This treatment was intended to,
and had the ultimate effect of, subordinating African-Americans to
permanent second-class citizenship. African-Americans have been
indoctrinated with the belief that their culture, their religion,
their language, their political influence, and their basic existence
are inferior to that of Whites. The U.S. government created and
continually perpetrated the feeling of hopelessness.
Reconstruction was the government's first attempt to correct the
wrongs it actively participated in creating and maintaining. This
short-lived, feeble effort was replaced with decades of "separate
but equal" facilities and Jim Crow laws, effectively destroying any
benefits of Reconstruction. Affirmative action, a system of being
able to consider race in areas such as higher education and job
opportunities, took the place of legislated discrimination, but has
run into problems as well. Regardless of whether there were
successful attempts to level the playing field, they cannot
substitute for the property already taken.
In his dissent in San Diego Gas & Electric Co., Justice Brennan
refuted the proposition that once a regulatory taking has been
established, mere invalidation or amendment of the regulation is a
constitutionally sufficient remedy. Recognizing that the concept of
just compensation is to place the property owner in the same
position monetarily as he would have occupied if the property had
not been taken, Justice Brennan declared that invalidation or
amendment of the regulation, unaccompanied by payment of damages,
does not compensate the owner for any economic loss suffered during
the time the invalid regulation was in effect. He proposed that once
a court finds that a regulation has effected a taking, the
government entity must pay just compensation for the period
commencing on the date the regulation first effected the taking and
ending on the date the government entity chooses to rescind or amend
the regulation.
The government-sponsored regulations destroyed all value that the
slaves originally held in their property; the magnitude of the
taking and the involuntary transfer of the ownership right to
another rendered self-ownership worthless by removing all beneficial
economic use.
3. Derivative Taking
Though the Supreme Court has never endorsed this particular theory,
a derivative taking occurs whenever a partial or complete taking
diminishes the value of surrounding property. Derivative takings
allow third parties, not directly affected by the regulation but
harmed by the original taking nonetheless, to recover damages. A
derivative taking, a hybrid of both the regulatory and physical
takings, results from either a physical or regulatory taking.
Proponents of derivative takings argue that a policy of not
compensating damage to third parties cannot be justified on either
efficiency or fairness grounds. Courts however, have consistently
rejected derivative takings claims, despite the fact that the
federal and state governments would be encouraged to exercise what
is in essence eminent domain power only when such use would enhance
social utility.
In the case of slavery, the taking has led to institutionalized
racism, causing harm to subsequent generations of African-Americans.
According to recent census figures, 24.3% of Blacks lived in poverty
in 2003, compared with 10.3% of Whites. Education statistics show
that where only 78.7% of Blacks have a high school diploma, 88.7% of
Whites have obtained this level of minimal achievement. Likewise,
only 17% of Blacks have obtained a bachelor's degree or more,
compared to 29.4% of Whites. Black per-capita income in 2001 was a
mere $14,953 compared with $24,127 for Whites. The percent of Blacks
below the poverty level has more than doubled that of Whites for the
last 26 years. As would be expected given the previous numbers, the
percentage of unemployed Blacks more than doubles that of Whites.
More telling, however, is the difference between those who do and do
not own homes. In 2002, 47.3% of Blacks owned their own homes. This
does not begin to compare to the 74.5% of Whites who owned their own
homes. Yet more disturbing are the incarceration statistics. As of
the year 2000, there were only 132 more Black males in college than
in prison. While the number of Black males attending college has
risen only slightly, the number going to prison has increased
dramatically over the years. In addition, Black males are more than
six times more likely than White males to go to prison. The
Department of Justice notes that in 2000, Blacks had a 18.6% chance
of going to prison, compared with a 3.4% chance for Whites.
Blacks trail Whites with regard to every social yardstick including
education, life expectancy, income, and homeownership. These
disparities are linked to the legacy of slavery. It is of no
consequence to argue which came first, slavery or racism. The result
has been the reinforced presumption that African-Americans are
inferior, unintelligent, and prone to violence and crime. These
disparities stem from the original taking.
V. History of Compensation
In recent history, various racial groups have been compensated for
harms suffered at the hands of the U.S. government. Most notably,
Native Americans have been compensated for the theft and destruction
of their property that occurred at the turn of the century. This
compensation, although not a direct cash payment and not explicitly
cited as necessary for current retribution for past wrongs, is
nonetheless an acknowledgment of the federal government's guilt and
acceptance of responsibility. Government documents, however, make
clear that the financial assistance, most popularly in the form of
free or nearly free higher education, but also in tax breaks,
available for "eligible" Native Americans is not an entitlement
program. Surprisingly, there are no comparable programs for other
minorities. If the education "scholarship" were the same as any
other federal financial aid program for those showing financial
need, why require that the applicant have a certain percentage of
Native American blood or be on a tribe's membership roster? The
language itself indicates that the Native Americans have been
identified as a group receiving special services as a result of
their being Native American.
Significantly, Native Americans have been permitted to recover where
other victims of government brutality were not due to courts'
recognition of a fiduciary duty that exists between the government
and the tribes. In at least one case, the U.S. Court of Appeals for
the Ninth Circuit considered and subsequently rejected any attempt
by African-American plaintiffs to situate themselves in the same or
similar relationship as Native Americans to the U.S. government.
Native Americans have been successful in gaining the right to sue
the government and have obtained monetary and non-monetary relief as
a result of their suit. The Cato court acknowledged that regardless
of whether there are factual similarities between the treatment
accorded Indian Tribes and African-American slaves and their
descendants, there is nothing in the relationship between the United
States and African-American slaves and their descendants that is
legally comparable to the unique relationship between the U.S.
federal government and Indian Tribes. The court noted that other
courts have recognized a fiduciary responsibility running from the
government to Indian Tribes because of specific treaty obligations
and a network of statutes that impose specific duties on the
government. This unique relationship has extended statutes of
limitations that would have otherwise barred claims against the
government, and has allowed for monetary relief where otherwise only
injunctive relief would have been permitted.
African-Americans are unable to point to any such treaties or
statutes that require a similar obligation or create such
exceptions. Fortunately, African-Americans do not need to establish
any such relationship given the self-executing nature of the Takings
Clause.
Nationally, President Clinton apologized to indigenous Hawaiians for
the illegal United States-aided overthrow of the sovereign nation's
local government and the near decimation of traditional Hawaiian
culture that followed; the Methodist Church apologized to Native
Americans in Wyoming for the 1865 post-treaty slaughter at the hands
of the U.S. cavalry led by a Methodist minister; the Florida
legislature awarded reparations to survivors of the Rosewood
massacre; the federal government offered an apology to the
African-American victims of the Tuskegee syphilis experiment, and
agreed to apologize to and provide limited reparations for Japanese
Latin Americans kidnapped from Latin American countries and placed
in U.S. internment camps as hostages during WWII.
The Japanese survivors and descendants of the Japanese-American WWII
internment victims based their reparations case primarily on a legal
strategy that couched their claims in an individual rights context
and focused on tolling or otherwise avoiding the statute of
limitations. Specifically, 1) their challenge addressed a specific
executive order and ensuing military orders; 2) their challenge was
based on then-existing constitutional norms (due process and equal
protection); and 3) both a congressional commission and the courts
identified specific facts amounting to violations of those norms.
Furthermore, the claimants (those who had been interned and were
still living) and the government agents (specific military and
Justice and War Department Officials) were both easily identifiable
as individuals. These agents' wrongful acts resulted directly in the
imprisonment of (and thus injury to) innocent people. The damages to
these people, although uncertain, covered a fixed time and were
limited to survivors, and the payment of these damages meant
finality.
The descendants of the Japanese-Americans interned during WWII have
been monetarily compensated twice within the last fifteen years for
the loss of their property. In 1948, President Harry S. Truman
signed the Japanese American Evacuation Claims Act allowing
reimbursements. Some 23,689 claims were filed asking for
$131,949,176. By the time these claims outlasted federal procedures
which required itemized claims and receipts, the federal government
recompensed Japanese Americans $38,000,000 or about 29 cents for
every dollar claimed. On September 17, 1987, the U.S. House of
Representatives passed a law including a formal apology to Japanese
Americans for the internment and providing $1.2 billion in
compensation.
The plight of the slaves' descendants is most similar to that of the
Korean women who filed suit in the Tokyo District Court against the
Japanese government for crimes during WWII. Between 1932 and 1945,
Japan forced Korean women into slavery and prostitution in
Manchuria, China, the Philippines, and Thailand, among other regions
of the Pacific. The resulting experience of this treatment was
similar to that experienced by African-Americans after abolition:
discrimination, higher unemployment, fewer educational
opportunities, substandard housing and political oppression.
Most recently, the Japanese government awarded these women
reparations. Their legal strategy, arguing that Japan violated
international law by perpetrating crimes against humanity, is unlike
those of the Japanese-American internees, but presents a viable
possibility for African-Americans who suffer as a result of the
treatment of their ancestors.
Holocaust survivors have been the most successful in gaining, not
only apologies, but also monetary compensation for their experience
as forced laborers and slave laborers. The sources of the reparation
funds have come from not only Germany, but also from banks and
private and government-owned companies spanning the four corners of
Europe.
VI. Conclusion
Reparations offer the country a unique opportunity to reconstruct
fractured communities. It is necessary to acknowledge the ongoing
inequities and create a workable plan to restore to
African-Americans their rightful place in society. It is not
conducive or even recommended that the process attempt to lay blame;
reparations is a moral obligation that we all share to take care of
those who have suffered. The perpetuation of pain as a direct result
of slavery and discrimination taints us all. And yet, coming to
grips with injustice is not easy. However, it is not justice's duty
to make reconciliation palatable. There is no doubt that reparations
must be the result of America's struggle with a problem that is
older thanthe nation itself. And there can be no doubt that the U.S.
owes a debt to the descendants of those who were the backbone of the
nation's growth.
The Fifth Amendment's Takings Clause mandates the federal government
pay for private property that it commandeers without the permission
of the property owner. Slaves lost the value of their labor, and
more importantly, the value of their self-ownership. As a result,
their surviving descendants and African-Americans at large continue
to suffer from the vestiges of slavery that manifest in modern day
society's treatment of the race. In acknowledging the wrongs, a
Takings Clause argument creates a kinder, more gentle and reasonable
approach to the idea of repairing the damage and expands the
possibilities for conversation and debate in the process of
attaining just compensation. |
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