It’s far, far more about the symbolism, IMO, than the actual money (of there even is any money). Right now I don’t think there’s any good reason that black Americans have to see America as a place that they’re given a fair shake, broadly speaking. With a powerful symbol that provides material benefit to many or most of them, maybe that could change a bit.
I’m open to other ideas. I’m not open to the idea that this is just going to get better on its own.
I think before people continue to hash and rehash their objections in this thread, they absolutely must watch theHBO Documentary: True Justice. Not only is it well done and moving but Bryan Stephenson is one of the most inspiring and impressive individuals I’ve ever watched. I don’t know what’s in store for him in the future but I seriously hope he considers a presidential run.
It would have to be a push for a general increase in social spending, and the case for it would have to be made without specifically referencing slavery or discrimination. Because once you say that blacks deserve more social spending, that will raise the same question - why are non-blacks less deserving of social spending? And that doesn’t seem to be a question with a satisfactory answer, as far as this thread is concerned.
Regards,
Shodan
Care address post #429? If you disagree with that analysis of American history, then of course you’re not going to see anything like this as “satisfactory”. If you do disagree with it, which part?
This is not clear to me that this is the case. Even if it is the case, that profound change need not be reparations, extensive studies, apologies, or an airing of grievances. Things were very bad before, and have gotten better over time. What you are suggesting is that this trend towards improvement is completed and no more progress can be made via the means already being employed.
I also didn’t learn about the Spanish American War, the Great Depression, Vietnam, and a whole host of other things. The Civil War was covered in a couple days, saying it was too complex to teach with the time we had. Japanese internment was not mentioned. The fact that Chinese were not allowed to become citizens prior to the 40s and were severely limited until the 60s was not mentioned.
I would like everyone to have the maximum opportunity available to them. But life isn’t fair and some people will lose the sperm lottery and be born to parents in less than ideal circumstances. The country, and the world, has done a lot of bad shit to a lot of people. There is no justice that can be had to right the wrongs of history. There is nothing that can be given to Inigyo Montoya to bring his father back. The longer that folks believe that society is so broken that there is no possibility of the ghosts of the past being laid to rest - then the rest of society will move on and it will be a self fulfilling activity.
Reparations aside, an interesting point was made in the True Justice documentary I mentioned earlier. It was along the following lines…: There is a long and storied history of injustices that are well documented against blacks and native americans. The monuments (statues, streets and named buildings, for example) to the perpetrators of those injustices are still proudly displayed as significant historic landmarks. In contrast, Germany* has taken a very different approach to its recent dark past. As an example, there are landmarks on German streets that name the Nazi victims. It would perhaps go a long way to healing old wounds if America came to terms with its past in a similar way, removed Confederate symbols and replaced them with memorials** of the victims.
*Germany is the example used in the documentary for the obvious comparison as well as for the way in which they have acknowledged and taken responsibility as a society.
**Yes, memorials for victims and civil rights heroes exist in America. But they are in stark contrast to Confederate symbols that also persist and remain a rallying symbol for modern day racism and white nationalism.
I think there has been definite improvement, but not recently – in fact, in my understanding of polling, it’s gotten significantly worse in the last few years. But even with some broad sense of improvement, there are things that actually are worse in the 21st century than much of the 20th – the prison industrial complex and sky-high rates of incarceration, and stagnation (or worse) of black family incomes and wealth come to mind most notably.
I believe all of this together demonstrates that no more significant progress is likely “via the means already being employed”.
Obviously what I suggested isn’t the only void in our education system, just that it’s a notable one for this discussion.
I think this is very easy to say from a position of relative wealth, privilege, and comfort. Life is easy for me – I didn’t really work that hard in school, yet I still did well and got a full ride to a state university. I studied moderately hard in college, but didn’t really have to do much aside from go to class and do the assignments, and did well enough to get even more money from the military for a commissioning program. I was a good but not great officer in the Navy. Everyone always assumed I was where I was supposed to be. Everyone assumed I knew what I was doing, even when I didn’t. No one thought I didn’t belong, or reacted with fear from me being there, etc.
But there are tons of people who aren’t so lucky, and in fact face obstacles every day just to break even, so to speak.
None of this is probably news to you, but are you really considering how your opinion is shaped by your own circumstances? How would you feel if financial success, or even just basic financial security, was out of your reach, because you didn’t know the right people, or because you made the kind of mistake every young person does but which dooms black and brown folks to a life near the bottom, or because a family member got terribly sick, or for a million other reasons?
Comfortable people generally oppose things like reparations, because big change is seen as threats to most comfortable people.
If MLK Jr. were still alive, where do you think he’d be on this issue? Would he be fine with the status quo, and advocate that nothing significant needs to be done by governments to improve opportunity for black people? Would you feel comfortable on the opposite side of him? Are you comfortable being on the opposite side of living CR leaders like John Lewis when it comes to the plight of black people in America?
Reparations for Japanese internment were legally justified because the original internment was illegal according to the laws then in place. It was only through illegal deception that the government won Korematsu v. United States, and even without the deception the principles used in that case were explicitly invalidated last year in Justice Robert’s ober dictum (Trump v. Hawaii).
So no, we have not used this exact legal principle. In my opinion reparations for Japanese internment are not binding as a precedent for slavery reparations. You will still need to overcome the Equal Protection Clause as reversely incorporated by the Due Process Clause of the Fifth Amendment.
~Max
I reject your analysis. Reparations for Japanese-American internees were justified because it was morally correct and instituted through the democratic legislative process.
Morally justified, not legally justified. The legal justification would be that Japanese internment was ultimately illegal by the standards of the day.
~Max
That wasn’t necessary – it was already “legally justified”, based on it passing through the normal legislative process.
I know you are skeptical, but why? Based upon what you know so far, why do you support reparations for blacks and Native Americans, but not women, gays, Chinese, and WV coal miners?
If someone was wronged, why shouldn’t they be eligible for a reparation like anyone else who was wronged? Why is it important that they are part of some larger group that shares (fill in the blank) characteristics with them?
You mention the “permanent aggrieved underclass” but the reparations to Japanese Americans in internment camps (which you seem to support) do not fit this criteria. This was a straightforward reparation plan which you use to support (barring additional study) reparations for black Americans and Native Americans, but only those groups. Spending for a “permanent aggrieved underclass” is mere social spending.
So I guess I am confused. At times you support reparations as was done for Japanese Americans in internment camps, but want to limit it only to those groups who are currently disadvantaged. Which do you propose, reparations or social spending, because if reparations, I see no reason why you should limit your proposal to two racial groups. If a wrong was done, why not redress it instead of basing redressability on race?
The “normal legislative process” you refer to was chock-full of legal justification. I didn’t bother looking at the original 1948 reparations act (also the first Civil Rights act in the 20th century), because that was probably justified under the takings clause. See the spoiler for excerpts from the legislative process during consideration of the 1988 act, which had an unprecedented 75 cosponsors in the Senate.
[SPOILER]Excerpts from the Senate Congressional Record on April 20, 1988.
Daniel Inouye of Hawaii:
The Presidentially appointed Commission on Wartime Relocation and Internment of Civilians found no documented acts of espionage, sabotage, or fifth column activity by any, Mr. President, by any identifiable American citizen of Japanese ancestry or resident Japanese aliens on the west coast.
This was supposed to have been the rationale for this mass evacuation and mass incarceration, that these Americans were not to be trusted, that these Americans were agents of an enemy country, that these Americans would spy and carry out espionage, and this Presidentially appointed Commission, which incidentally was made up of leading citizens throughout this land and only one member of that Commission was of Japanese ancestry-declared that there were no acts of espionage whatsoever. And sadly, the Commission in its 1983 report concluded that internment was motivated by racial prejudice, war hysteria, and a failure of political leadership.
Theodore Stevens of Alaska:
We now know from the Commission’s record that the Attorney General warned the President that what was to be done was not constitutional. The former Director of the FBI, J. Edgar Hoover, notified the President that the order was not necessary from the point of view of intelligence or any type of activity, and that it was contrary to the best interests of the Government at that time.
The Secretary of War expressed his belief that the program was “ill advised, unnecessary, and unnecessarily cruel,” and Milton Eisenhower, the former President’s brother, who was Director of Wartime Relocation, described the evacuation and detention as “an inhuman mistake.”
The late Chief Justice of the Supreme Court, Earl Warren, who was then Attorney General of California, stated that, “I have since deeply regretted the removal order and my own testimony advocating it because it was not in keeping with our American concept of freedom and the rights of citizens.”
I think the record is clear that there ought not to be any dispute that our country made a serious mistake.
…
The thing that is appalling to me is that it has been so long, Mr. President, since so many people have admitted the mistake, and so many people now know that the distinguished leaders of the time urged the military not to do this-the Attorney General, the Secretary of State, the FBI director.
…
If you were in court - and incidentally there is still one case pending, maybe two - in court, the jurors would have the duty of determining what the compensation should be not only in terms of actual compensatory damages, but in terms of punitive damages, too.
We are not going to just hand out money. Those people who apply, who believe that they are entitled to this money and need this money, will be able to get this money.
I do not know how many of our Aleut people will apply, and I do not know how many Japanese-Americans will apply. But the concept is that they can apply for these damages.
Pete Wilson of California:
As we have heard from the Senator from Alaska, those in charge of our security, those charged with the responsibility for collecting domestic intelligence, found that we had very quickly overreacted, perhaps reasonably so in the panic of the moment, or, if not reasonably, at least understandably. But, Mr. President, having made that mistake, we persisted in it for 4 long years and perpetrated on a group of loyal Americans one of the great travesties in our history. We kept behind barbed wire the fathers, the mothers, the uncles, the aunts, the younger brothers and sisters of the most celebrated and highly decorated combat units in American history. We kept them behind barbed wire, living at Santa Anita and other places.
We now acknowledge the tragic error of judgment that required, in that moment of panic, that we take protective action, rounding up Aleuts and Americans of Japanese ancestry who posed no threat, and who, to the contrary, gave us their sons as volunteers.
A dialogue between Mr. Stevens of Alaska and Mr. Warner of Virginia:
Mr. WARNER. Mr. President, I concede that it was an error in judgment by the President of the United States.
He should have listened to those advisers who cautioned him against it.
Mr. STEVENS. It was not the President of the United States.
Mr. WARNER. He signed the Executive order.
Mr. STEVENS. He signed a valid Executive order. It was upheld by the Supreme Court. It was valid in this Senator’s judgment. It said arrest those people who are a threat to the internal security of the United States, who pose a threat of committing acts of sabotage or espionage.
But what I am saying is there is no record that there was any justification in taking the Japanese-Americans or the Aleuts under that order. That was not a mistake of the President of the United States. It was a mistake of the arresting officers. It has since been acknowledged as a mistake by a subsequent President of the United States, President Ford, in revoking that order. He said there were serious mistakes grievous mistakes made under that order-and I would hope my friend would accept the distinction, Mr. President.
Harry Reid of Nevada:
[The Supreme Court] could be relied upon; that is, until December 7, 1941. When the air and naval forces of the Japanese empire struck suddenly and without warning at Pearl Harbor, our Nation was shocked, outraged, and furious. And rightfully so. Cries for revenge immediately rang out. Demands were made that Japan be punished for her attack. And rightfully so.
What was not right, what could not be justified, was the wellspring of ugly racism which burst to the surface in the Western United States, and especially in the Western United States. Over 100,000 American citizens of Japanese origin were dragged from their homes by the forces of the Government and interned in concentration camps.
No examination was made of their loyalty; no distinction was invoked between legitimate enemy aliens and innocent citizens. That the action taken was blatantly racist is demonstrated by the fact that the same actions were applied neither to Americans of German origin nor to those whose families came from Italy.
…
There stood between those citizens and their oppressors in and out of government only that one bulwark of our liberties: the Supreme court. The Court failed the test miserably. It permitted the forced relocation and internment of American citizens on a purely racial basis over the dissent of only one Justice. That one Justice, Robert Jackson, a man whose name we have probably all forgotten, Robert Jackson, who was later to prosecute war criminals at Nuremberg, demonstrated the importance of one judge as the conscience of a nation.
…
Mr. President, this legislation acknowledges the fundamental injustice of the evacuation, relocation, and internment of American citizens and permanent resident aliens of Japanese ancestry.
It makes restitution to these internees and the the Aleut residents whose personal property was taken or destroyed. These people were denied due process of law, being arrested and held without trial, appeal, or legal counsel. They were subject to unlawful searches and seizure, losing their property and jobs, as well as their freedom. They were denied equal protection under the law, being incarcerated strictly on the basis of their race.
Daniel Evans of Washington:
Opponents of this legislation choose to ignore raw, racial prejudice woven in what was supposed to be legitimate national security justification for internment. The evacuees, however, were guilty of no crime other than the apparent crime of being of Japanese ancestry. Japanese-Americans left their homes in an atmosphere of racial prejudice and returned to the same.
…
Our legal tradition provides us with a system of damage compensation to promote accountability in government’s actions. For example, false imprisonments from the May Day demonstrations in 1972 resulted in a Federal court decision to award money damages to the demonstrators for the hours they spent in detention. Additionally, special compensation was rightfully granted to the 52 Iran hostages under the Hostage Relief Act and Anti-Terrorism Act. These examples offer precedential evidence that victims justifiably have received individual compensation for a loss of bodily freedom. Furthermore, Federal law affords both equitable relief and money damages under section 1983, against any State or Federal official who violates a person’s constitutional rights.
Today, we have the opportunity to use our hindsight. And with the 20-20 vision it provides, we not only can recognize this flagrant injustice from history, but we can learn from it. By offering redress to the Japanese-Americans we will invest in a deterrent from future atrocities.
Orrin Hatch of Utah:
Madam President, I rise today as a cosponsor of S. 1009. As I have publicly stated, I believe that an appropriate form of restitution is in order for the obvious civil rights abuses that were suffered by interned American citizens in 1942. During the period of internment, many U.S. citizens were separated from their families, and some lost all of their property and material possessions. Despite various court rulings since that time, it is clear that these citizens were denied their constitutional right to due process.
The bill that we are acting upon today is truly an important step in correcting that denial of due process, and I intend to support its final passage.
Mr. Hatch then proposed an amendment (which was agreed to) removing race as a factor for the board of directors that oversaw the reparations:
[SPOILER]However, I do have a concern with one portion of the bill which may in itself result in another violation of due process.
Section 206 of the bill creates a nine member board of directors that is charged with the responsibility of making various disbursements from a trust fund. One of the requirements of this section is that five members of the board be of Japanese ancestry. While I have no problem with the concept of the board of directors making disbursements from the trust fund, I am very concerned with the requirement that some of the appointments to the board be made on the basis of national origin.
Under the Supreme Court’s interpretation of equal protection as provided by the fifth amendment due process clause, Congress may not, absent some compelling governmental interest, make a distinction based on national origin. When called on to review such a law, the Supreme Court applies strict scrutiny; that is, its highest standard of review in discrimination cases.
On its face, there appears to be nothing in this legislation that would indicate some over-riding governmental interest that makes it imperative to set aside five of the nine positions. The functions that will be performed by the board, can be performed regardless of ancestry.
It is also possible that this language violates the Presidental appointments clause in the Constitution by dictating to the President which persons he can appoint. To include this provision would be an invitation for a judicial challenge on constitutional grounds and could lead to a veto.
To the best of my determinaton, this issue has not been raised during consideration of the bill in the Senate or the House of Representatives. It would be unfortunate if we overwhelmingly enact this measure only to have someone challenge this provision, invalidating the board of directors and thereby removing the entity we have charged with making awards under the bill.
The amendment that I am introducing today simply removes the clause requiring specific national origin in appointing persons to the five positions. The board remains intact, and we avoid at least one constitutional challenge which would surely be made.[/SPOILER]
Pietro Domencini of New Mexico:
This sad period in our history has been examined with care by the Commission on the Wartime Relocation and Internment of Civilians established by Congress. The Commission issued its report, “Personal Justice Denied,” in 1982.
In January 1986, the U.S. District Court of Appeals for the District of Columbia ruled, in a class action suit that individuals of Japanese descent who lost property because of their relocation from the west coast during World War II have a cause of action against the United States for those losses.
Thus, both the Commission and the court of appeals reached the same basic conclusion, the evacuation of persons of Japanese ancestry, in the words of the Commission, “was not justified by military necessity, and the decisions which followed from it … were not driven by an analysis of military conditions.”
The Commission concluded that “the broad historical causes which shaped these decisions were race prejudice, war hysteria and a failure of political leadership.”
Dennis DeConcini of Arizona:
Subsequent investigation has proven that there was no military or national security necessity for these actions. The internment occurred more out of fear and racial prejudice in the hysteria of the times. This longstanding blot on the civil liberties history of this country can perhaps be partially erased through some form of restitution. While monetary compensation cannot ease the pain and loss suffered by the individuals and families whose country turned its back on them, it will at least mark official U.S. recognition of this shortsighted Government action.
Timothy Wirth of Colorado:
Since the end of the war, the Federal Government has maintained that the exclusion and internment were actions justified by military necessity. Thus, until recently, the detaineees have had no basic recourse in the courts or the Government for these injustices.
To remedy this situation, in 1980, the Congress formed the Commission on Wartime Relocation and Internment of Civilians. The conclusions of the Commission revealed an abusive and prejudicial policy initiated and perpetuated by the Federal Government against a specific ethnic group. Government intelligence reports, discovered by the Commission, showed racial and ethnic suspicion as the basis for the program rather than military necessity. After careful consideration, the Commission declared the program a mistake resulting from racial prejudice and war hysteria, and recommended a series of actions by the United State Government to serve as an apology to Japanese-Americans deprived of their liberty during the World War II.
S. 1009, the bill we are considering today, would implement the Commission’s recommendations by mandating a formal apology by Congress and establishing a trust fund out of which $20,000 would be paid to all Americans of Japanese ancestry who were deprived of their liberty and property under the internment program.
[/SPOILER]
~Max
There’s no legal requirement to have this kind of “legal justification” in passing a bill. They could just vote on it and pass it, just because they think it’s morally right, and unless it violates the Constitution, it goes through. I’m not sure what your point is.
You cannot simply pay money to a group of people because of their race, that would violate the Fifth Amendment (which incorporates the Fourteenth Amendment’s equal protection clause). You might say “we are going to reimburse the Japanese because we think what we did was immoral”, and then a German or Italian detained during WWI or WWII could sue for unconstitutional discrimination (they existed, but not nearly as many as the Japanese).
No, you need to pass strict scrutiny to overcome the equal protection clause. The Japanese restitution movement passed that obstacle after the 1980 commission uncovered documents that invalidated the U.S. justification in Korematsu v. United States. Japanese internment, it turns out, was always unconstitutional. No such constitutional violation at the time of the official act is found regarding slavery in general.
~Max
I’m not advocating this. My argument has been much more nuanced, and is generally about harm to living Americans. The government can and does pay damages in some cases in which it caused harm.
But at this point, all I’m really arguing for is research and study.
Give them all a dollar.
Regarding redlining, unless your proposed Commission on Redlining discovers that the federal government itself actually violated the constitution by making those maps, Congress does not have the authority to pay reparations to African Americans. Any old taxpayer could sue alleging a violation of the Fifth Amendment’s due process clause (see Flast v. Cohen, holding that a taxpayer has standing to sue the government to prevent unconstitutional spending of taxpayer funds).
~Max
I’m unconvinced. Just because you say so doesn’t mean it’s unconstitutional. If Congress passed such a bill, paying damages it decided were warranted for Redlining, who would have standing to challenge it, and what part of the Constitution would it be violating?
Taxpayers would have standing, as I just said. So would other people (even white people) affected by redlining. The specific constitutional violation is the due process clause of the Fifth Amendment. I’ve bolded the relevant text:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation**.**
Which forms the sentence:
No person shall be… deprived of life, liberty, or property without due process of law.
The Supreme Court has held that this clause, by way of reverse incorporation, makes the equal protection clause of the Fourteenth Amendment binding upon the federal government (see Bolling v. Sharpe, 347 U.S. 497, 1954; also Lawrence v. Texas, 539 U.S. 558, 2003).
The equal protection clause itself reads:
No State shall… deny to any person within its jurisdiction the equal protection of the laws.
The Supreme Court has ruled on the basis of the equal protection clause that states cannot give preference to minorities without passing strict scrutiny. They have explicitly rejected the possibility of a state passing a discriminatory law that remedies societal, rather than discrete discrimination. I quote from City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989):
In sum, none of the evidence presented by the city points to any identified discrimination in the Richmond construction industry. We, therefore, hold that the city has failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race. To accept Richmond’s claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. “Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications…” Bakke, 438 U. S., at 296-297 (Powell, J.). We think such a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.
The same logic applies to the federal government due to reverse incorporation of the equal protection clause. The federal government cannot give preferential treatment to African Americans just because they were discriminated against by society. Alternatively, the federal government cannot give preferential treatment to all minority groups just because African Americans were discriminated against by society (the case with City of Richmond v. J.A. Croson Co.). You have to overcome strict scrutiny by showing a compelling reason, a specific injustice inflicted upon the African American race to the exclusion of all others, by the federal government, according to the law at the time.
~Max