Saturday, August 2, 2008

Legal argument against reparations

Many legal experts point to the fact that slavery was not illegal in the United States prior to the Thirteenth Amendment to the United States Constitution (ratified in 1865). Thus, there is no legal foundation for compensating the descendants of slaves for the crime against their ancestors when, in strictly legal terms, no crime was committed. Chattel slavery is now considered by many to be highly immoral in the United States, but perfectly legal at the time. However, opponents of this legal argument contend that such was the case in Nazi Germany, whereby the activities of the Nazis were legal under German law; however unlike slavery, the German activities were precedented by the Allied Powers following WWI, which could not rule against the German government then due to lack of precedent-- but could do so afterward following WWII on the basis of this established WWI precedent.
Other legal experts point to the fact that the current U.S. government did not exist prior to June 21, 1788 when the United States Constitution was ratified. Therefore, the U.S. government inherited the institution of slavery, and cannot be held legally liable for the enslavement of Africans by Europeans prior to that time. Figuring out who was enslaved by whom in order to fairly apply reparations from the U.S. Government only to those who were enslaved under U.S. laws, would be an impossible task.
Some areas of the South had communities of freedman, such as existed in Savannah, Charleston and New Orleans, while in the North, for example, former slaves lived as freedman both before and after the creation of the United States in 1788. For example, in 1667 Dutch colonists freed some of their slaves and gave them property in what is now Manhattan. The descendants of Groote and Christina Manuell -- two of those freed slaves -- can trace their family's history as freedman back to the child of Groote and Christina, Nicolas Manuell, whom they consider their family's first freeborn African-American. In 1712, the British, then in control of New York, prohibited blacks from inheriting land, effectively ending property ownership for this family. While this is only one example out of thousands of enslaved persons, it does mean that not all slavery reparations can be determined by racial self-identification alone; reparations would have to include a determination of the free or slave status of one's African-American ancestors, as well as when and by whom they were enslaved and denied rights such as property ownership. Because of slavery, the original African heritage has been blended with the American experience, the same as it has been for generations of immigrants from other countries. For this reason, determining a "fair share" of reparations would be an impossible task.
The most effective legal argument against reparations for slavery from a legal (as opposed to a moral standpoint) is that the statute of limitations for filing lawsuits has long since passed. Thus, courts are prohibited from granting relief. This has been used effectively in several suits, including In re African American Slave Descendants, which dismissed a high-profile suit against a number of businesses with ties to slavery. Perhaps the most cogent argument against reparations (though this is not a legal argument) is that few African-Americans are of "pure" African blood since the offspring of the original slaves were occasionally the progeny of Caucasian masters.

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