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Nick's Journal
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2007-04-10 02:17:51 (UTC)

My View on Reparations

First off a couple of disclaimers. A couple of theories in
here as well as definitions, etc. are not mine. I’m not in
any way pretending that they are mine, but I am not about to
fucking cite shit outside of my legal writing class. When
in doubt or if something sounds insanely intelligent,
attribute it to someone other than myself. Secondly, if I
sound like an asshole by the way I am writing this, don't
hold it against me. There I think that's it. And in my
pedantic style that I am much criticized for I will lay out
what is to follow. First I will start out with the general
theories against reparations, then I will go into the
practicalities of actually implementing them, and finally I
will just dispute some arguments for reparations.
what I hear most often (or rather read most often when I
researched this topic) was the slipper slope argument; in
that, if we allow reparations in this country, then any
claim for any wrong in the course of mankind could
potentially spawn an action for reparations.
While I think on a whole this argument is pretty sound I
think there is one problem with it. Governments still have
the option of either acknowledging or not acknowledging such
claims. I think the reality is that, even if the u.s. were
to allow reparations claims, the Turks would still be like,
"Armenians who?". I don't think that reparations in this
country would necessarily precipitate a catastrophic influx
of claims for all past wrongdoers, although the central
point of acknowledging past wrongs opening the flood gates
to a plethora of claims is sound, I just think I reality
they won’t be acknowledged.
Aside from that preliminary and general theoretical argument
against reparations, I think there are issues of
impracticability. One problem I see although I didn't see
this mentioned anywhere was economic consequences. How
would the market handle a sudden influx of cash to
consumers? I would imagine that the inflationary pressures
would be enormous. However, I have faith that the Federal
Reserve would watch over this like a hawk. But anyway, it
is something that has always weighed on my mind but I never
saw addressed in any of the literature.
Secondly the impracticability really stems from
identification of the beneficiary class. There are so many
problems with truly identifying the victims of slavery.
straight lineage does not really seem to be much of an
option and also this begs the larger question of whether the
reparations are for the actual act of slavery itself
(whereby only direct descendants of slaves should benefit)
or whether we are addressing the larger (and possibly more
pervasive) problem of discrimination and injustices that
resulted from slavery to the present day.
If we are remedying the latter I think the problem is
insurmountable. The only true way to draw the line is to
state that all blacks suffer the stigma of slavery to which
all whites suffer the moral taint (more on this later) and
thereby funnel the funds upon this principle from white to
black. But what about children of mixed heritage? The
simple solution to this is that we simply say, if you are
black you suffered from racism (irregardless of lineage,
etc.) and if you are white you benefited. This of course is
not just crude and overly simplistic, but it also completely
obfuscates the obvious underlying problem. The payments are
by the government which is funded by all taxpayers, of which
I’m sure a vast majority in no way relate to the above test.
Simply enacting a “slavery” tax on all whites is not only
unconstitutional, but would lead to such tax fraud the likes
of which were never before seen. I just think the
administrative problems in implementing a system with which
to distribute reparations is inconceivable in this
particular instance.
One great counter I found to this problem is saying that you
should just donate the money to certain charities. But
there are two problems with this. First of all, money comes
from the government and the government can not wantonly fund
random interest groups. Secondly, this only seems
diversionary at best. There are possibly a multitude of
beneficiaries who would be bypassed through this method for
the very least the reason being that they just don't feel
like petitioning the charities for the money or services.
Anyhow, those two practical problems are some 'real world'
issues I have with reparations.
Now on a moral or ethical standpoint the main problem I have
with reparations is this assumption of guilt. This
assumption that the American government perpetrated a wrong
from which it benefited and thereby restitution is in order.
There are a bunch of theories for assuming guilt but I just
will look at two. They are ethical individualism and
ethical collectivism (with a softer ethical individualism in
between which is where I stand).
Ethical individualism limits culpability to the individual.
One can not be guilty of an act unless he as an individual
perpetrated it.
Softer ethical individualism expands this limitation to the
notion that, while an individual may not be directly
culpable, a derivative voluntary act can establish
culpability (this is what felony murder doctrine and
conspiracy charges are based upon).
Ethical collectivism posits that people can be held
accountable for the actions of their group regardless of
their status (i.e. voluntary/involuntary).
So by virtue of the last standpoint, Americans are culpable
for the actions of their government, regardless of any
personal involvement in the 'crime'. By merely being
represented or a part of the government as a whole, they are
'responsible' by virtue of their association irregardless of
whether or not they are descendants of the culpable
characters.
One offshoot of this is the justification for Germans paying
holocaust victims. While Germans now-a-days probably have
little to do with the holocaust, they still are a part of
the German nation and government and thereby join in a
degree of culpability by virtue of their association with
the German government as their representatives. This is
somewhat more tenable in that the victims of the holocaust
are (normally) directly compensated. Rarely is the
compensation more than generations removed so there is
inherent in this entire scheme of reparations some degree of
direct compensation which is lacking reparations.
This is also the case with the reparations paid to for
Japanese internments. However, these were a bit of a
different issue in that the victims here were paid for their
promise not to sue the government.
Many people also point to the reparations Germany paid after
World War I. The problem with this however, it is that it
overlooks the fact that this was imposed by an external
force, which established culpability by a sort of "victor's
mandate".
The issue here is not based upon some extrinsic force but by
the government itself assuming an obligation. So any
analogies there fall short due to this problem.
My issue with ethical collectivism is that I believe that
culpability can only be established by way of some sort of
voluntary action. Also I believe that the transient nature
of governmental representation in itself does not create any
sort of linchpin upon which to heap the culpable conduct.
In contrast take a corporation which benefited from slave
labor.
A corporation stays the same throughout by virtue of its
mission statement and as a legally cognizable entity.
Although the shareholders ultimately foot the bill of any
reparations scheme this is fundamentally different into that
in this situation there is a.) An intransient primary entity
pun which blame can be attributed and b.) The stakeholders
who must bare the liability voluntarily assume that
liability by purchasing shares and seeking profit.
Whereas a government is transient and (as any illegal
immigrant can attest) citizenship is anything but voluntary.
Well the best theory I found around this issue of
culpability lies in the 'moral taint' theory.
This theory posits that, granted you may not be able to
establish culpability between the payer and beneficiary, but
there a certain moral taint on the payer (i.e. government)
which it wishes to extinguish.
This is an argument used to circumnavigate the
constitutional issues of a race-based reparations program
(upon which affirmative action is based). Essentially the
theory states that the government (more specifically whites)
suffers a moral taint form slavery. They acknowledge that
it was a horrendous and shameful act which, by the enactment
of reparations, may be remedied and cleansed of their
conscience.
I reject this argument principally because I believe that it
is over inclusive as to the payer class. Although it states
in theory that whites are the ones targeted, the fact
remains that the payments still come from taxpayers at
large. Plus it overlooks the fact that the majority of
people in no logical manner can even be attributed this
moral taint yet still bares the brunt of the payment (i.e.
immigrants of the early 1900s who have no ancestors who held
slaves, etc.). Or Asian immigrants, or Mexican immigrants.
the true premise upon which this argument then rests once
the superficial targeting of whites in general is debunked
by the fact that taxpayers in an over inclusive category
bearing the brunt, is that the American government itself
has a specific interest which it wishes to remedy.
This specific interest is what is used as the constitutional
circumnavigation in affirmative action cases. Courts have
upheld (until recently) affirmative action in that it
services a narrow governmental interest. In the case of
reparations, this being alleviating the moral taint the
American government feels from slavery.
Yet this overlooks several factors. First and foremost is
once again the transient nature of government itself. I
think it is a stretch to say that representatives now a days
feel the taint of slavery. And as the deeper penetration of
government to the individual runs into the same
complications as the taxpayer issue above, it seems to only
be limited to the government as some abstract entity.
However, this abstract entity only came about through the
formative years of the revolution, to the civil war, and in
its evolution was the very institution which effectively rid
itself of slavery. So you would essentially be saying that
the same abstract entity which went through a war and a
representative body (Lincoln) that acknowledged the
abominations of slavery and fought a war to abolish it still
somehow maintains a lingering almost superficial feeling of
moral taint.
This would caste aside the years of evolution along with the
civil rights.
I definitely grant that society is in no way over its racist
past. But to all of a sudden heap this moral taint upon an
abstract realization of government as a justification
crassly overlooks the fact that this very entity a.) was the
major player in the destruction of slavery and b.) is still
evolving into a more equalized society by the minute.
Finally if not clear by the above, I think that reparations
fails the constitutional test as shamefully as affirmative
action. I think that this legal fiction of "specific
government interest" is a huge affront to the fundamental
principles espoused by the 13th amendment. I realize that
there are public policy issues driving this, but I do not
agree with them in any way shape or form.
So in summation. I believe that reparations suffers from
realistic implementation problems from the outset. I reject
ethical collectivism as a segway to culpability by
representation, as I believe that a fundamental aspect of
our justice system and our values as a society requires that
there be at least some sort of culpability through voluntary
assumption of an activity to establish guilt. And finally I
reject the moral taint theory in that I believe that it is
over inclusive on the payer side and is unjust. And that it
fails in creating an abstract moral entity in that it
overlooks that that entity was the very impetus behind the
abolition of slavery itself. Therefore, I do not believe
that the moral taint theory establishes a specific
governmental interest upon which the constitution can be
circumnavigated. However, in my opinion this isn't even
necessary to establish as I feel that this establishment of
a specific governmental interest is just a weak
justification to violate the constitution in the first instance.


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