Can a reparations package be a bill of attainder?

• Author: Manweller, Mathew

Aristotle once observed that to give money away is an easy matter and in any man's power, but to decide to whom to give it, for what purpose and how, is neither in every man's power nor an easy matter.

--Justice Oaks, Lamont v. Woods (1)

Everybody, it seems, is in the mood to apologize. The U.S. Congress has considered apologizing to African Americans for the country's history of slavery. (2) During his term in office, President Clinton offered multiple apologies: to the Rwandan people far lack of U.S. action during Rwanda's ethnic civil war; to native Hawaiians for nineteenth-century imperialism; to survivors of the infamous Tuskegee experiments (Brooks 1999). The Catholic Church recently apologized for the Inquisition and the Holocaust (Bohlen 1997). The Japanese government, under pressure, apologized for abusing Korean "comfort women" during World War II. In one of the more unusual cases, Aetna, an insurance company, apologized for selling policies to slave owners in the 1850s. Some political and social activists have gone a step further and pushed Aetna, as well as governmental institutions, to pay reparations for their acts of more than a century ago. The apparent "contrition chic" that has descended over the twenty-first century has led Roy Brooks to label this century the "Age of Apology" (1999, 3).

There is a difference, however, between apologizing in the rhetorical sense and apologizing in the form of reallocating resources to compensate for past wrongs. In the past decade, proposals or demands for the latter have become increasingly popular. Japanese Americans interned during World War II have collected $1.6 billion in reparations. The state of Florida passed a reparations package of $2 million for survivors of the infamous Rosewood Massacre. (3) Currently, the state of Oklahoma is considering a $33 million package to atone for the Tulsa race riot of 1921 (Yardley 2000). Unlike a state or national legislature's resolution of apology, however, the reallocation of resources as a form of apology raises pragmatic, ethical, logistical, and, as I assert here, constitutional questions.

Concentrating on the constitutional questions, we might borrow a phrase from General Douglas MacArthur: old constitutional clauses "never die, they just fade away." (4) Unlike old soldiers, however, constitutional clauses have a tendency to come back to life when you least expect them to do so. Such is the case of Article I, sections 9 and 10, of the U.S. Constitution, forbidding bills of attainder. A bill of attainder is created when a legislature, instead of a court, finds an individual or easily ascertainable group guilty of some crime and exacts a punishment. James Madison, always fearful of a legislature's susceptibility to the sudden impulses and passions of the populace, believed that the bill of attainder clauses would deny Congress the ability to punish individuals or minority groups (see his statement in Jay, Madison, and Hamilton [1787-88] 1983, 227). He and others were aware that the courts were more insulated from public passions and therefore more appropriate bodies to decide guilt or innocence and to impose punishments. The Founders hoped to avoid a repetition of the episodes in English history in which Parliament seized property from individuals who had not been convicted in court. In this article, I maintain that reparations packages do exactly what Madison feared. In my view, a legislature's use of public funds to compensate groups for "historical crimes" constitutes enactment of bills of attainder, and such acts ought to be found unconstitutional.

What Is a Reparations Package?

Roy Brooks presents a detailed typology of reparations (table 1). He first identifies the notion of remorse. If a redress includes a sense of atonement, it is considered reparations. If no atonement is expressed, the redress is considered a settlement. The reparations half of the dichotomy may be further subdivided into monetary and nonmonetary reparations. The latter include nonexclusive social programs (welfare), amnesty, and affirmative action. Monetary reparations may be classified as compensatory or rehabilitative. Compensatory reparations are given to an individual; they are intended to return an injured party to his condition prior to his victimization. Rehabilitative reparations are given to groups; they seek to "repair" a community or a culture.

This typology is helpful when one examines various proposals for slave reparations. Using Brooks's classification, we see that because redresses for slavery would be a form of apology, they would constitute reparations, not a settlement. Much of the debate focuses on how the compensation would take place. Many commentators have argued that nonmonetary reparations have already been paid in the form of Great Society social welfare programs (Smith 1999). Those who disagree and contend that monetary reparations are needed to compensate fully for the country's history of slavery disagree as to whether those reparations should be compensatory or rehabilitative. Some advocates call for individual monetary payments, others for empowerment zones, education credits, and other forms of rehabilitative compensation. Some proposed reparations blend compensatory and rehabilitative elements. For example, certain advocates have called for a publicly funded trust to be established for African Americans. Individual African Americans would be allowed to apply for business or educational grants from the trust (see Robinson 1999; Westley 1998).

All of the reparations packages I identity in table 2 in the next section are monetary reparations packages, but compensatory and rehabilitative packages are distributed roughly equally in the list. I have excluded nonmonetary reparations packages from my data set. Their number would be prohibitively large, nor is it my argument that nonmonetary reparations packages violate the Constitution's bill of attainder clause.

Reparations Packages on the Rise

The use of reparations packages to remedy historical wrongs received increased attention after the U.S. government agreed to pay $20,000 to each surviving person of Japanese descent interned during World War II. Since that time, proposals of reparations packages have increased significantly. Nor does the issue seem poised to fade from political radar screens soon. (5) Table 2 provides a brief overview of all the reparations packages that in the past twenty years have been paid, have been put into the process of being paid, or have been suggested as a potential remedy. Where dollar amounts are missing from the table, there is no agreed upon amount.

In reaction to the number of reparations proposals, a number of normative arguments have been raised to support or to oppose reparations packages. Some Jewish and African American civic leaders oppose reparations on the grounds that such transfers amount to "blood money," and they view reparations as a betrayal of the dead (Barkan 2000, 9). Others see reparations packages in a more positive light and view them as a way to "recognize and acknowledge" victims and to provide "closure" for the offending nation (Ignatieff 2000, A20).

From a different perspective, some officials worry that reparations will lead to a never-ending cycle. Representative Milacek of the Oklahoma legislature asked the obvious question, "Where does it end?" (qtd. in Yardley 2000, A1). His question illustrates the uncomfortable fact that, given the many incidents of violent wrongs committed throughout history, we would never run out of episodes from which to derive a claim for someone's compensation.

Still others, such as Hawaiian-reparations opponent Roy Benham, ask, "Who does the United States give it to?" (qtd. in Associated Press Staff 1999, A1). A variety of questions might be raised about eligibility for reparations. Would slave reparations go to millionaire African Americans? What percentage of one's ancestors would have to be African American to make him eligible? Would reparations go to African Americans who immigrated to the United States after the Civil War? The recent uproar at Brown University, where a school newspaper advertisement criticizing the idea of slavery reparations prompted students to storm the editor's office and shut down the paper, illustrates how intense the debate over these questions can be (Godbold 2001).

And, finally, one might question who is responsible for paying the reparations. David Horowitz, an ardent opponent of slavery reparations, asks, "What rationale would require Vietnamese boat people, Russian refuseniks or Iranian refugees ... to pay reparations?" (qtd. in Godbold 2001). Behind the simplistic notion that wrongs should be righted are complicated questions about who should bear responsibility for historical crimes. A long list of questions could be added to Horowitz's list. Would Americans whose ancestors immigrated to the United States after 1865 still be held responsible for the evils of slavery? What about the descendants of Union soldiers who fought and in hundreds of thousands of cases died in the war that brought about the destruction of slavery in the United States? Should they receive an exemption from liability?

Much has been written about the normative arguments related to reparations packages (for reviews of the literature, see Barkan 2000; Bergmann 1927; Brooks 1999; and Capman 1991). I do not seek to repeat or to add to those arguments. For the purposes of this article, I wish to put aside the normative debates and to focus instead on a potential constitutional restraint on the use of reparations packages--namely, that reparations packages violate the Constitution's bill of attainder clause.

What Is a Bill of Attainder?

There is little argument that the bill of attainder is an obscure aspect of the Constitution. In fact, only five acts of Congress have ever been overturned on bill of attainder grounds. The most recent case was...