Imagine you’re walking down a street in a small town, and you want to cross to the other side of the street. Not being familiar with the jaywalking laws, you ask a nearby police officer, “Is jaywalking allowed in this town?”
The officer replies, “Yes, sir! No laws against jaywalking here!”
So you cross over in the middle of the street.
A few months later, you get a ticket in the mail from the city government of that small town. It’s a ticket for jaywalking — a $100 fine. The ticket is dated today, but the date of your offense was that day a few months ago when you specifically asked the police officer, “Is jaywalking illegal here?” and he said, “No.”
Luckily, the small town is nearby, so you opt for a court date. Thankfully, the police officer from that day actually decides to show up, and after you ask him a few intelligent questions, the events of that day are clearly established before the judge: You asked whether jaywalking was illegal, the police officer told you no, so you jaywalked.
But then you are informed by the judge that last month the city legislature had passed a new law making jaywalking illegal, and the law was codified as retroactive for six months — i.e., anyone who had previously, legally, jaywalked in that town from seven months ago until a month ago were just as much criminals under the new law as someone who jaywalked the day it was passed.
Is that fair?
The Founding Fathers of our country didn’t think it was fair. That’s why there are specific provisions against retroactive laws in the Constitution: Article 1, Section 9, Clause C says regarding Congress, “No…ex post facto law shall be passed,” and Article 1, Section 10, Clause A says regarding the States, “No State shall…pass any…ex post facto law.” (City governments are extensions of the State governments, so the latter clause applies to them, too.)
An ex post facto law is a law like the hypothetical one above: It makes some act retroactively illegal, such that people who committed that act during the time it was legal can now be punished for that act as though it were illegal at that time.
The Constitution’s absolute prohibition against ex post facto laws made a huge impact on me when I was first taught about it. It established not only an important legal principle in my mind, but also an important principle regarding society and human nature: In order for people to co-exist in a functioning society, you have to have rules, and those rules have to be knowable.
Ex post facto laws destroy people’s ability to know what society’s rules are. Sure, you can live within the bounds of the law today, but if ex post facto laws are possible, your law-abiding lifestyle secures you no assurance that you won’t be fined or thrown in jail at some later date. Because not only are you bound by current law, which you can know, but you are also bound by the completely unknowable whims of future legislatures who might decide that, in retrospect, your law-abiding standard of behavior at the time just doesn’t cut the mustard — some amount of punishment must be levied on you for your obviously morally inferior (though legal) way of life.
Maybe some jail time is in order for your failure to conform to present standards back in the past. Maybe some community service. Maybe some…
Yes, I’m talking about reparations for slavery, the political bugaboo of the 2020 Presidential Election. Once a pipe dream to be scoffed at, like Medicare For All, there is now serious talk of compelling taxpayers to cough up cash payments for American Descendants of Slavery (ADOS), equivalent to the value of service that slaves provided during the period of U.S. history when slavery was legal.
It’s a hefty toll, too. University of Connecticut researcher Thomas Craemer puts the potential bill as high as $14 trillion, taking into account “how many hours all slaves — men, women and children — worked in the United States from when the country was officially established in 1776 until 1865, when slavery was officially abolished” and adding in some compound interest for good measure.
To put that $14 trillion in perspective, current federal government spending stands at $4.7 trillion. You could divert every single dollar the federal government spends to paying off slavery-based reparations for three years, and there’d still be more to pay.
But the amount isn’t the real issue. If paying reparations for slavery is moral, then we should pay it no matter what.
Except it is not moral. Reparations for slavery is nothing short of ex post facto punishment of behavior and practices that were legal at the time, however immoral we now deem that behavior and those practices to be.
What is moral is to admit, “Those were the rules at the time, and rules are rules.” Because without rules that a society can know, society must needs fall apart.
And under the rules of that time, ADOS aren’t owed a single cent. The work of their ancestors and all the value that was provided by their ancestors’ service was lawfully conscripted right up until the day that conscription was no longer lawful. That’s how laws work. That’s how a society works. If you don’t have that, you don’t have anything.
Was slavery horrible? Yes. Was it immoral? Yes. Did it deprive some people of the value of their labor, and make it impossible to accumulate wealth that could be passed on to their descendants? Absolutely. It was all those things.
But the one thing it was not is unlawful, and to put today’s American taxpayers under the onus of a crime for what was legal behavior at the time goes against not only an important principle clearly embedded in our Constitution but also our understanding of what living in a truly free society means.
“But wait!” you might ask. “Isn’t there a precedent for reparations? What about the $1.6 billion that was paid out to Japanese citizens and their descendants to compensate the losses they incurred from their internment in F.D.R.’s camps during World War II?”
Yes. And paying reparations for Japanese internment was immoral, too.
The same reasoning applies: At the time that reparations for Japanese internment was established, Roosevelt’s executive order establishing the camps had been held constitutional by the Supreme Court in the 1944 case Korematsu v. United States. Like it or not, traumatic or not, moral or not — Roosevelt’s policy of Japanese internment was a legal action by the United States against a portion of its citizenry, and American taxpayers ought not to have been held punishable for it.
Only after the Supreme Court overturned its earlier decision in 2018’s Trump v. Hawaii should there have been any talk of reparations for Japanese internment. Once what was thought to be legal at the time had finally been declared illegal at the time, grounds for reparations were established.
And that gives us a starting point to talk about actual, moral reparations for African-Americans in this country. Because there is a case applicable to African-Americans that parallels that of Japanese internment: Jim Crow segregation.
Starting at the end of Reconstruction in 1877 — well after the passage of the 14th Amendment making slaves and their descendants full citizens of the United States — many states passed laws enforcing segregation by race. Comparable to the Korematsu decision, the 1896 Supreme Court case of Plessy v. Ferguson upheld these segregation laws. It would be nearly sixty years before the Supreme Court held segregation to be illegal in Brown v. Board of Education.
It seems to me that to demand reparations for the injustices suffered under Jim Crow segregation — injustices that the Supreme Court had finally declared illegal at the time, the same way it had declared Japanese internment illegal at the time, is a moral demand not comparable to the imposition of ex post facto punishment.
(You might be wondering, “Why is it okay for a court to declare something held legal at one time was actually illegal, but it’s not okay for a legislature to do the same?” The difference is that the legislature is trying to go back and change the law of that time. The court, on the other hand, is declaring that the existing laws of that time forbade the action that was thought legal, and the government should have known better.)
Now, I have no idea what the dollar amount would be for segregation-based reparations (as opposed to slavery-based reparations). For all I know, we could be talking about more than $14 trillion. But at least by assigning collective punishment to the American taxpayer only for activities that were illegal at the time they were committed, all Americans can be satisfied that these reparations will serve up some measure of justice. There is no justice at all in slavery-based reparations, which would punish the American taxpayer for then-legal activities and, in doing so, violate the spirit of our Constitution.