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Author Topic: Reparations?  (Read 9973 times)

attic4fp

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Re: Reparations?
« Reply #40 on: April 03, 2007, 08:55:31 PM »
I'm no expert on this, but I think that there are several different injuries for which African-Americans could conceivably claim damages.  Many of them do not hinge just on slavery or at all on slavery.  Here are a few.

1) Although not illegal, slavery was such a gross violation of other, basic tennets of American government that we should regard it as having been such.  (this might be the kind of injuries for which israelis were claiming damages)

2) The slave trade was illegal after a certain point, but a signficant number of slaves were imported anyway.  Thus, the obvious injuries of slavery, inflicted in an illegal act, creating obvious grounds for claiming damages (how to distinguish "legally" imported slaves from "illegally" imported ones is the problem, here)

3) Failure of the federal government to implement the laws passed by the Republican Congress during Reconstruction.  The Johnson administration intentionally and maliciously did not enforce congressional legislation that required effective transfers of wealth from the government to freed slaves.  This is a major and very sound claim, in my opinion, since freed slaves were deprived of both explicit transfers and future earning power.  The Johnson administration intentionally did harm to African-Americans.

4) Post-Reconstruction failure of the Federal Government to properly enforce the Civil Rights Amendments.  Obvious one here as well.  Up until the mid to late 1950s, Congress, the executive branch, and the courts conspired to deprive black American citizens of rights granted to them by the Constitution as ammended.  This inflicted severe economic and personal injuries. 

philibusters

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Re: Reparations?
« Reply #41 on: April 03, 2007, 10:04:46 PM »
I'm no expert on this, but I think that there are several different injuries for which African-Americans could conceivably claim damages.  Many of them do not hinge just on slavery or at all on slavery.  Here are a few.

1) Although not illegal, slavery was such a gross violation of other, basic tennets of American government that we should regard it as having been such.  (this might be the kind of injuries for which israelis were claiming damages)

2) The slave trade was illegal after a certain point, but a signficant number of slaves were imported anyway.  Thus, the obvious injuries of slavery, inflicted in an illegal act, creating obvious grounds for claiming damages (how to distinguish "legally" imported slaves from "illegally" imported ones is the problem, here)

3) Failure of the federal government to implement the laws passed by the Republican Congress during Reconstruction.  The Johnson administration intentionally and maliciously did not enforce congressional legislation that required effective transfers of wealth from the government to freed slaves.  This is a major and very sound claim, in my opinion, since freed slaves were deprived of both explicit transfers and future earning power.  The Johnson administration intentionally did harm to African-Americans.

4) Post-Reconstruction failure of the Federal Government to properly enforce the Civil Rights Amendments.  Obvious one here as well.  Up until the mid to late 1950s, Congress, the executive branch, and the courts conspired to deprive black American citizens of rights granted to them by the Constitution as ammended.  This inflicted severe economic and personal injuries. 

Yikes, you are thinking too much like a lawyer.  Reparations would be a political thing, maybe a moral thing also, but not so much a legal thing, so it doesn't matter that slavery was legal, it was still immoral and thats why they would pay reparations, not for breaking the law, but for enslaving people-also politically, socially, and morally we tied our tied to our ancestors actions-legally you cannot claim damages for the actions of people's ancestors.   Granted somebody mentioned that the Israeli government sued the Egyptian government, but that sounds more like propaganda, I can't imagine what legal theory they did that on.
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attic4fp

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Re: Reparations?
« Reply #42 on: April 03, 2007, 10:15:44 PM »
I think politically and morally, a majority non-black electorate would be unlikely to authroize political reparations on any significant scale.

But I think there exist several potentially valid legal arguments in favor of reparations (see my last post).

Thus, for me the more interesting questions about reparations are the legal ones. 

No Congress, no matter how (progressive/guilt-ridden, take your pick) is ever going to transfer the kind of money we're talking about from the majority of its constituents to a relatively small minority. 

A court, on the other hand....

philibusters

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Re: Reparations?
« Reply #43 on: April 03, 2007, 11:41:07 PM »
I'm no expert on this, but I think that there are several different injuries for which African-Americans could conceivably claim damages.  Many of them do not hinge just on slavery or at all on slavery.  Here are a few.

1) Although not illegal, slavery was such a gross violation of other, basic tennets of American government that we should regard it as having been such.  (this might be the kind of injuries for which israelis were claiming damages)

2) The slave trade was illegal after a certain point, but a signficant number of slaves were imported anyway.  Thus, the obvious injuries of slavery, inflicted in an illegal act, creating obvious grounds for claiming damages (how to distinguish "legally" imported slaves from "illegally" imported ones is the problem, here)

3) Failure of the federal government to implement the laws passed by the Republican Congress during Reconstruction.  The Johnson administration intentionally and maliciously did not enforce congressional legislation that required effective transfers of wealth from the government to freed slaves.  This is a major and very sound claim, in my opinion, since freed slaves were deprived of both explicit transfers and future earning power.  The Johnson administration intentionally did harm to African-Americans.

4) Post-Reconstruction failure of the Federal Government to properly enforce the Civil Rights Amendments.  Obvious one here as well.  Up until the mid to late 1950s, Congress, the executive branch, and the courts conspired to deprive black American citizens of rights granted to them by the Constitution as ammended.  This inflicted severe economic and personal injuries. 

Yikes, you are thinking too much like a lawyer.  Reparations would be a political thing, maybe a moral thing also, but not so much a legal thing, so it doesn't matter that slavery was legal, it was still immoral and thats why they would pay reparations, not for breaking the law, but for enslaving people-also politically, socially, and morally we tied our tied to our ancestors actions-legally you cannot claim damages for the actions of people's ancestors.   Granted somebody mentioned that the Israeli government sued the Egyptian government, but that sounds more like propaganda, I can't imagine what legal theory they did that on.

A few ideas:

Breach of contract?
40 acres and a mule and whatnot, which was promised in writing and then voided by the President.  I'm not a law student yet, but I imagine the wholesale re-appropriation of all of those acres and all of those mules by the government might have been a takings violation. You'd have to find some way around the statute of limitations, I imagine, but Congress could step in and help that along the way once a lawsuit was filed.  Doing a bit of Googling also reveals that the statute of limitations is called into question if you've got fraudulent concealment.  I don't know what the standards are for that, but there's no way anybody could have brought a claim like this back during Reconstruction, so you might be able to gain some momentum on the idea that the legal sands of time haven't exactly been flowing through the hourglass. 

You obviously have the huge problem of defining the plaintiffs and the defendants, but there have been similar cases involving slave reparations from World War II and more recent cases that have faced similar hurdles until the political momentum was sufficient to push things along. 

One of the legal precedents that would be the main obstacle would be Cato v. United States, in which the 9th circuit basically held its hands in the air and said they couldn't find a legal leg to stand on for the reparations claim being brought.  But I also think people tend to forget that you don't need an iron-clad legal rationale in order to bring and win a suit like this, you need a plausible legal explanation and a shitton of political momentum. 

Let me also add that I don't think there's any chance in hell the political will exists to support any of what I'm blabbering about above, but I think the hypothetical issues are really interesting ones to consider.

I have to strongly disagree with this post, you definitely need a legal theory to win in courts.  This is not the court reviewing a government reparation scheme, you guys are actually asking the courts to institute a reparation scheme themselves and they just don't have the power to that.  The judicial role is to settle current disputes, not legislate and there is no way that any court in this country would ever issue reparations based on race.

As for your theories


1) Although not illegal, slavery was such a gross violation of other, basic tennets of American government that we should regard it as having been such.  (this might be the kind of injuries for which israelis were claiming damages)

Thats a moral argument, not a legal one.  You can't sue somebody for being a bad person.  Furthermore, all those who would be able to bring this claim are dead as our all former slave owners.  There is no controversy and courts have no jurisdiction if there is no controversy, not only can the courts not reward reparations, they cannot even hear that case.


2) The slave trade was illegal after a certain point, but a signficant number of slaves were imported anyway.  Thus, the obvious injuries of slavery, inflicted in an illegal act, creating obvious grounds for claiming damages (how to distinguish "legally" imported slaves from "illegally" imported ones is the problem, here)

If somebody commits an illegal act they face criminal violations, the government does give the relatives of murder victims for example any money, and while the court can fine criminal offenders for their offense if authorized by statute, the criminal offenders are all dead.  Again no current controversy, court has no jurisdiction to hear these claims.


3) Failure of the federal government to implement the laws passed by the Republican Congress during Reconstruction.  The Johnson administration intentionally and maliciously did not enforce congressional legislation that required effective transfers of wealth from the government to freed slaves.  This is a major and very sound claim, in my opinion, since freed slaves were deprived of both explicit transfers and future earning power.  The Johnson administration intentionally did harm to African-Americans.

The government doesn't enforce the law all the time.  Again the rights would be specific to aggrieved partys, plus you have no constitutional right to sue the government, and right to sue them is statutorily granted, not to mention when Congress does grant citizens the right to sue in certain circumstances the remedy is almost always enforcement of the law, not reparations, the courts cannot order the government to do anything but what the law compels them to do, unless there is a law authorizing reparations, thats not a possible remedy.

4) Post-Reconstruction failure of the Federal Government to properly enforce the Civil Rights Amendments.  Obvious one here as well.  Up until the mid to late 1950s, Congress, the executive branch, and the courts conspired to deprive black American citizens of rights granted to them by the Constitution as amended.  This inflicted severe economic and personal injuries.

Hmm, the Civil Rights Amendments, fat chance, the were many cases dealing with this and the court made many decisions interpreting those amendments.  For example the 14th amendment did not mean what it means now, 100 years ago.  Again even if somehow you got this case and you some how won, at least on this one you have current living parties who have a controversy so the courts could have jurisdiction, and the government by statute let you sue them, reparations would not be a type of remedy the court has the power to grant, they would only have the power to make the government respect the constitutional rights of the affected parties in the future.

If this was an actual case, it would be decided by the supreme court and the supreme court could care less about Cato or whatever 9th circuit there was and they can do whatever they wanted.  Only the 9th circuit and the district courts under them are bound by 9th circuit decisions.

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attic4fp

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Re: Reparations?
« Reply #44 on: April 03, 2007, 11:49:47 PM »
I'm no expert on this, but I think that there are several different injuries for which African-Americans could conceivably claim damages.  Many of them do not hinge just on slavery or at all on slavery.  Here are a few.

1) Although not illegal, slavery was such a gross violation of other, basic tennets of American government that we should regard it as having been such.  (this might be the kind of injuries for which israelis were claiming damages)

2) The slave trade was illegal after a certain point, but a signficant number of slaves were imported anyway.  Thus, the obvious injuries of slavery, inflicted in an illegal act, creating obvious grounds for claiming damages (how to distinguish "legally" imported slaves from "illegally" imported ones is the problem, here)

3) Failure of the federal government to implement the laws passed by the Republican Congress during Reconstruction.  The Johnson administration intentionally and maliciously did not enforce congressional legislation that required effective transfers of wealth from the government to freed slaves.  This is a major and very sound claim, in my opinion, since freed slaves were deprived of both explicit transfers and future earning power.  The Johnson administration intentionally did harm to African-Americans.

4) Post-Reconstruction failure of the Federal Government to properly enforce the Civil Rights Amendments.  Obvious one here as well.  Up until the mid to late 1950s, Congress, the executive branch, and the courts conspired to deprive black American citizens of rights granted to them by the Constitution as ammended.  This inflicted severe economic and personal injuries. 

Yikes, you are thinking too much like a lawyer.  Reparations would be a political thing, maybe a moral thing also, but not so much a legal thing, so it doesn't matter that slavery was legal, it was still immoral and thats why they would pay reparations, not for breaking the law, but for enslaving people-also politically, socially, and morally we tied our tied to our ancestors actions-legally you cannot claim damages for the actions of people's ancestors.   Granted somebody mentioned that the Israeli government sued the Egyptian government, but that sounds more like propaganda, I can't imagine what legal theory they did that on.

A few ideas:

Breach of contract?
40 acres and a mule and whatnot, which was promised in writing and then voided by the President.  I'm not a law student yet, but I imagine the wholesale re-appropriation of all of those acres and all of those mules by the government might have been a takings violation. You'd have to find some way around the statute of limitations, I imagine, but Congress could step in and help that along the way once a lawsuit was filed.  Doing a bit of Googling also reveals that the statute of limitations is called into question if you've got fraudulent concealment.  I don't know what the standards are for that, but there's no way anybody could have brought a claim like this back during Reconstruction, so you might be able to gain some momentum on the idea that the legal sands of time haven't exactly been flowing through the hourglass. 

You obviously have the huge problem of defining the plaintiffs and the defendants, but there have been similar cases involving slave reparations from World War II and more recent cases that have faced similar hurdles until the political momentum was sufficient to push things along. 

One of the legal precedents that would be the main obstacle would be Cato v. United States, in which the 9th circuit basically held its hands in the air and said they couldn't find a legal leg to stand on for the reparations claim being brought.  But I also think people tend to forget that you don't need an iron-clad legal rationale in order to bring and win a suit like this, you need a plausible legal explanation and a shitton of political momentum. 

Let me also add that I don't think there's any chance in hell the political will exists to support any of what I'm blabbering about above, but I think the hypothetical issues are really interesting ones to consider.

I have to strongly disagree with this post, you definitely need a legal theory to win in courts.  This is not the court reviewing a government reparation scheme, you guys are actually asking the courts to institute a reparation scheme themselves and they just don't have the power to that.  The judicial role is to settle current disputes, not legislate and there is no way that any court in this country would ever issue reparations based on race.

As for your theories


1) Although not illegal, slavery was such a gross violation of other, basic tennets of American government that we should regard it as having been such.  (this might be the kind of injuries for which israelis were claiming damages)

Thats a moral argument, not a legal one.  You can't sue somebody for being a bad person.  Furthermore, all those who would be able to bring this claim are dead as our all former slave owners.  There is no controversy and courts have no jurisdiction if there is no controversy, not only can the courts not reward reparations, they cannot even hear that case.


2) The slave trade was illegal after a certain point, but a signficant number of slaves were imported anyway.  Thus, the obvious injuries of slavery, inflicted in an illegal act, creating obvious grounds for claiming damages (how to distinguish "legally" imported slaves from "illegally" imported ones is the problem, here)

If somebody commits an illegal act they face criminal violations, the government does give the relatives of murder victims for example any money, and while the court can fine criminal offenders for their offense if authorized by statute, the criminal offenders are all dead.  Again no current controversy, court has no jurisdiction to hear these claims.


3) Failure of the federal government to implement the laws passed by the Republican Congress during Reconstruction.  The Johnson administration intentionally and maliciously did not enforce congressional legislation that required effective transfers of wealth from the government to freed slaves.  This is a major and very sound claim, in my opinion, since freed slaves were deprived of both explicit transfers and future earning power.  The Johnson administration intentionally did harm to African-Americans.

The government doesn't enforce the law all the time.  Again the rights would be specific to aggrieved partys, plus you have no constitutional right to sue the government, and right to sue them is statutorily granted, not to mention when Congress does grant citizens the right to sue in certain circumstances the remedy is almost always enforcement of the law, not reparations, the courts cannot order the government to do anything but what the law compels them to do, unless there is a law authorizing reparations, thats not a possible remedy.
4) Post-Reconstruction failure of the Federal Government to properly enforce the Civil Rights Amendments.  Obvious one here as well.  Up until the mid to late 1950s, Congress, the executive branch, and the courts conspired to deprive black American citizens of rights granted to them by the Constitution as amended.  This inflicted severe economic and personal injuries.

Hmm, the Civil Rights Amendments, fat chance, the were many cases dealing with this and the court made many decisions interpreting those amendments.  For example the 14th amendment did not mean what it means now, 100 years ago.  Again even if somehow you got this case and you some how won, at least on this one you have current living parties who have a controversy so the courts could have jurisdiction, and the government by statute let you sue them, reparations would not be a type of remedy the court has the power to grant, they would only have the power to make the government respect the constitutional rights of the affected parties in the future.

If this was an actual case, it would be decided by the supreme court and the supreme court could care less about Cato or whatever 9th circuit there was and they can do whatever they wanted.  Only the 9th circuit and the district courts under them are bound by 9th circuit decisions.



I'm a 0L and have no idea what I'm talking about, but I'm under the impression that if the executive branch A)fails to make a transfer of wealth required of it by congressional statute or B)conspires to deprive certain citizens of earning power, then the injuried parties would have solid ground on which to seek damages in court without a staute explicitly authorizing them to do so.  The damages would not be some court imagined reparations, but specific damages for the economic injury done to African-Americans.  Is there something about this that I've got wrong?  I'm really ignorant on this stuff, so let me know what I'm missing...

philibusters

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Re: Reparations?
« Reply #45 on: April 04, 2007, 12:05:48 AM »
Nope, you have no right to sue the government.  Even the states (through an odd interpretation of the 11th amendment--though section 5 of amendment 14 slightly modifies the 11th amendment).

You guys don't under the stand the role of the courts.  The courts only decide the rights of living parties in current conflicts.  Period.

Maybe you guys are confusing a racial group with a class action suit-huge difference, everybody in a class action suit for example used the product and suffered harmed personally and individually has a claim against the defendant. Not sure. 

As for remedies, Congress can only make the government did what it is obligated by law to do.  Thus if the government was supposed to distribute land 140 years ago, the government can only make them distribute land, they cannot substitute reparations, in regards to the government, its important to remember, the courts can only ask them to do what they are legally obligated to do in the first or sometimes there are stautes, for example Congress passed statutes giving people who have their constitutional rights violated by the police a right to sue to government and win monetary rewards, but that is solely based on a statutorily grant of power. 

Lastly you guys are talking vaguely about what things were not enforced and what not, you would need to cite specific statutes from Congress (not the state governments-any thing passed by the states would have to be enforced by state courts).  Also all the Congress could  redistribute was legally confiscated from confederates, they cannot take land away from individuals to redistribute with due process and just compensation.
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philibusters

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Re: Reparations?
« Reply #46 on: April 04, 2007, 12:22:30 AM »
To be perfectly fair, before I went to law school I didn't understand how the courts worked--and I would have made a lot of the same mistakes.  Remember you need to have a recognized legal theory to bring a suit, there has to be a dispute (not necessary genuine for example in bond law-sometimes the local government will kind of bring suit against themselves to test whether the municipal bonds they are issuing are constitutional) between current living parties over their rights (though some rights are inheritable, for example if author dies he could could put in his will that he leaves copyright in his book to his daughter), but you you need a dispute with current living parties over their legal rights and some rights like human rights violations are personally and can't be passed on, others say if they were entitled to money from the government might be assginable to their heirs.  Lastly you cannot sue the government unless they grant you that right by statute.  That is a difficult concepts for non lawyers to understand...I am posting the wikipedia page on it to better help you understand... http://en.wikipedia.org/wiki/Sovereign_immunity
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attic4fp

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Re: Reparations?
« Reply #47 on: April 04, 2007, 12:22:37 AM »
Quote
Nope, you have no right to sue the government.  Even the states (through an odd interpretation of the 11th amendment--though section 5 of amendment 14 slightly modifies the 11th amendment). [/qoute]

Well, I'm wrong then. I'll take your word for it.

Quote

You guys don't under the stand the role of the courts.  The courts only decide the rights of living parties in current conflicts.  Period.

not sure how this applies.  descendents of deceased injuried parties, which is what we're talking about, end up in court all the the time.

Quote

Maybe you guys are confusing a racial group with a class action suit-huge difference, everybody in a class action suit for example used the product and suffered harmed personally and individually has a claim against the defendant. Not sure. 

As for remedies, Congress can only make the government did what it is obligated by law to do.  Thus if the government was supposed to distribute land 140 years ago, the government can only make them distribute land, they cannot substitute reparations, in regards to the government, its important to remember, the courts can only ask them to do what they are legally obligated to do in the first or sometimes there are stautes, for example Congress passed statutes giving people who have their constitutional rights violated by the police a right to sue to government and win monetary rewards, but that is solely based on a statutorily grant of power. 

Lastly you guys are talking vaguely about what things were not enforced and what not, you would need to cite specific statutes from Congress (not the state governments-any thing passed by the states would have to be enforced by state courts).  Also all the Congress could  redistribute was legally confiscated from confederates, they cannot take land away from individuals to redistribute with due process and just compensation.

Read anything by Foner if you want to see examples of statutes not being enforced.  I'm not really interested in finding specific legislation, but it exists.  Sabotaging Reconstruction was the Johnson administration's whole thing.

attic4fp

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Re: Reparations?
« Reply #48 on: April 04, 2007, 12:27:39 AM »
To be perfectly fair, before I went to law school I didn't understand how the courts worked--and I would have made a lot of the same mistakes.  Remember you need to have a recognized legal theory to bring a suit, there has to be a dispute (not necessary genuine for example in bond law-sometimes the local government will kind of bring suit against themselves to test whether the municipal bonds they are issuing are constitutional) between current living parties over their rights (though some rights are inheritable, for example if author dies he could could put in his will that he leaves copyright in his book to his daughter), but you you need a dispute with current living parties over their legal rights and some rights like human rights violations are personally and can't be passed on, others say if they were entitled to money from the government might be assginable to their heirs.  Lastly you cannot sue the government unless they grant you that right by statute.  That is a difficult concepts for non lawyers to understand...I am posting the wikipedia page on it to better help you understand... http://en.wikipedia.org/wiki/Sovereign_immunity

Why isn't the Johnson administration not enforcing legislation actionable under the Federal Tort Claims Act? (this is an honest question, not a semi-rhetorical one)

philibusters

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Re: Reparations?
« Reply #49 on: April 04, 2007, 12:46:46 AM »
To be perfectly fair, before I went to law school I didn't understand how the courts worked--and I would have made a lot of the same mistakes.  Remember you need to have a recognized legal theory to bring a suit, there has to be a dispute (not necessary genuine for example in bond law-sometimes the local government will kind of bring suit against themselves to test whether the municipal bonds they are issuing are constitutional) between current living parties over their rights (though some rights are inheritable, for example if author dies he could could put in his will that he leaves copyright in his book to his daughter), but you you need a dispute with current living parties over their legal rights and some rights like human rights violations are personally and can't be passed on, others say if they were entitled to money from the government might be assginable to their heirs.  Lastly you cannot sue the government unless they grant you that right by statute.  That is a difficult concepts for non lawyers to understand...I am posting the wikipedia page on it to better help you understand... http://en.wikipedia.org/wiki/Sovereign_immunity

Why isn't the Johnson administration not enforcing legislation actionable under the Federal Tort Claims Act? (this is an honest question, not a semi-rhetorical one)

Don't know about that, you would have to ask somebody with knowledge of that period, probably a prof or you could look it up in scholarly writings to see if you can find anything about it yourself, but I have no idea off the top of my head.
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