The subject of reparations was back in the news recently, when presidential candidates Elizabeth Warren and Kamala Harris voiced their support for reparations for black Americans to redress the legacy of slavery.  Warren would also consider reparations for American Indians.  So I got to wondering whether reparations would be constitutional.

The subject comes up every few years and can be traced back to Martin Luther King’s call for reparations in 1963 which referred to General William Sherman’s order to give former slaves 40 acres and a mule after the Civil War.  Sherman’s order was rescinded and land that had been distributed was taken back. 

Does that mean that reparations should be made today?  Lots of legal arguments stand in the way:

• First, there is the question of standing.  Plaintiffs can’t get through the courthouse door if they can’t show that an injury has been done to them personally.  But no former slave is currently alive, so their descendants may be barred from making claims because they have not been injured themselves by slavery.
• Next, the statute of limitations has surely run.  Slavery ended over 150 years ago.  There are court cases barring racial discrimination claims that attempted to reach too far back into the past. 
• Next, slavery was legal at the time, so there is no legal basis for compensating descendants - no illegality occurred.  
• Next, some blacks were free even in colonial times, so reparations cannot be made by racial group alone; each case would have to be examined individually.
• Under current Supreme Court jurisprudence, the federal government may compensate the immediate direct victims of its own discrimination, like the Japanese-Americans held in concentration camps in World War II, but not others whose claims are more attenuated.  State governments in the South, not the federal government, were primarily responsible for slavery.  
• For the federal government to pay out money based on race for societal wrongs - not the federal government’s own discrimination - would arguably constitute special treatment and racial preferences of a kind the Supreme Court has, so far, not permitted. 
  
  

But all these legal and constitutional arguments could be swept aside by a future Supreme Court with Justices appointed by the Democrats in the majority.  If that day comes, there would still be very good reasons to think long and hard about whether we, as a nation, want to go down the reparations road.  Several commentators have observed that reparations based on race would be viewed by many as an injustice and make race relations worse, not better.  Some would view reparations as a tax on whiteness, brownness, yellowness, and - unless Elizabeth Warren gets her way - redness, perpetuating an unhealthy preoccupation with race and all manner of grievances to further divide us.

My concern is that reparations based on race breaches the principle of individual responsibility.  I didn’t do anything to the black people I encounter in my life and I should not be made to pay just because I belong to a certain group.  There are lots of white people whose ancestors weren’t even in the country in 1865.   Group responsibility - otherwise known as guilt by association - is a very dangerous game, but let’s play it anyway, for a minute.  Like a liberal friend of mine in Boston says, reparations - OK, but just wait for the counterclaim for making inner cities unlivable.  Lots of blacks don’t cause problems or live outside of inner cities, you say?  It doesn’t matter.  The principle of group responsibility has been announced, so they shall pay no matter what they do or where they live.  Here’s another claim on fairness - by the descendants of the 620,000 soldiers who died in the Civil War freeing the slaves.  Under the principle of group responsibility, it is only fair and just that present-day blacks pay that counterclaim as well.  So you see, all sorts of mischief starts when you breach the principle of individual responsibility and pit one group against another. 

Let me suggest that we all find something better to do with our time.

When Democrats took control of the House after the last election, the question many had was whether they would focus on passing legislation or spend the next two years talking about Trump’s tax returns.  The answer has become pretty clear, with the Democrats holding, announcing, or threatening hearings or investigations on Trump/Russia collusion, Trump tax returns, Trump business dealings, Trump corruption, Trump abuse of power, Trump hush money payments, Trump obstruction of justice, Trump impeachment, Trump, Trump, and more Trump.

“The Constitution ... provided no express powers for Congress to investigate, issue subpoenas, or to punish for contempt,” according to a Congressional Research Service report.  But the practice was carried over from the British House of Commons whose members were considered the “grand inquisitors of the realm”.  (id., p.1)  Congress’ power to investigate is implied from its enumerated powers and the Necessary and Proper Clause, all found in Article 1, Section 8.

The first Congressional investigation of the executive branch appears to have been in 1791, when prior business dealings of the Superintendent of Finance Robert Morris were called into question. (id., p.2) 

The Supreme Court first placed limits on congressional investigations in 1821 [Anderson v. Dunn] (id. p.4).  The Court upheld Congress’ power to hold people in contempt, but said Congress must use the least onerous means to achieve its legislative objectives and no term of imprisonment Congress imposed could extend beyond a Congressional term.  In 1881, the Court placed more limits, saying Congress could not inquire into the personal affairs of individuals without actual “valid legislation” in mind.  (id. p.5)  This was later loosened to any legislative purpose, including oversight of alleged wrong-doing in the executive branch.  (id. p.5)  Oversight could potentially result in legislation, so a later Court viewed it as fair game for Congressional hearings and investigation.

The Supreme Court has also upheld Congress’ power to issue subpoenas as “an indispensable ingredient of lawmaking.”  (id. p.6)

Congress has expanded its powers to investigate by statute on a number of occasions, notably after 1946.  Congress beefed up oversight committee staff and upgraded the Government Accountability Office - GAO.  Congress now requires more than 2,000 reports from the executive branch every year. 

It’s a pretty safe bet that specific constitutional issues will come up as the House Democrats’ obsession with Donald Trump plays out.  Will witnesses ‘take the 5th’ like Lois Lerner did?  They’re certainly entitled to.  The Supreme Court ruled that “[t]he Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action” in 1957 [Watkins v. United States].  Will Trump administration officials claim executive privilege and refuse to turn over documents?  That didn’t work out so well for President Nixon [United States v. Nixon, 1974].  A unanimous Supreme Court rejected his claim of executive privilege and he resigned 16 days later.  I’ll keep an eye out for specific issues that come up as the Democrats move forward and report back to you when I can add to your understanding of the constitutional dimensions of what is happening.