Can a Reparations Package Be a Bill of Attainder?

Article excerpt

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. …