- The Washington Times - Thursday, August 30, 2001

Should America adopt a scheme of rewards and a great transfer of wealth from one group of citizens to another based solely on bloodlines? Pressure to do just that is emerging from the international community. The United Nations convenes a World Conference against Racism in Durban, South Africa this week, and its agenda will be roiled by a discussion of compensation to the descendants of slaves.

Human Rights Watch recently called for the establishment of a panel in the United States to assess the effect of slavery and supported compensating the descendants of its victims. Moreover, some state legislatures and influential scholars have pressed for analyzing such a scheme. The Bush administration has stated its opposition. Estimates of the amounts warranted, based on damage done, labor, pain and suffering and interest run into the trillions of dollars.

Lost in the charged atmosphere of such a debate is whether the Constitution of the United States would allow for such a measure. Recently, the Supreme Court ruled against the state of Hawaii's practice of allowing only "native Hawaiians" as determined by blood rather than tribal affiliation, to participate in a state trust. Any congressional allocations of funds by the Congress to the descendants of slaves would have to contend with equal protection claims, just as the native Hawaiians did. Nonetheless, Congress could claim that the so-called "Civil War" Amendments specifically gave it the power to enforce the 13th and 14th Amendments in any way it saw fit. In other words, the very amendments the Supreme Court would use to strike down such reparations would also be the very source of Congress' power to remove the badges and incidents of slavery.

Should the equal protection claim fail however there is a far older source of Constitutional prohibition against the type of plan pressed by reparation's greatest supporters. Article I of the Constitution provides that "No title of Nobility shall be granted by the United States." In other words no matter what your ancestor accomplished you receive no hereditary benefits from the state.

The Founders believed this prohibition was vital to a "Republican form of government." James Madison wrote in Federalist 39 that the strongest guarantee of a government by the people was found in the Constitution's "absolute prohibition of titles of nobility." Later in Federalist 44, Madison notes the salutary effects of the prohibition against hereditary benefits is so obvious to the form of the new government that it "needs no comment."

Alexander Hamilton, in Federalist 84, argued that this prohibition, which New York's Constitution lacked, provided a greater security to liberty and republicanism than anything in New York's own Constitution. Moreover, he repeated, "Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the cornerstone of republican government." Hamilton went on to call this prohibition "absolute and universal" and necessary to prevent one small group of people from dominating the government and taking advantage of the mass of the people.

The entire structure of the Constitution is designed to prevent a class of persons from emerging distinguished only by blood, whom their fellow citizens owe tithes, duties or fealty precisely because of that line of descent. Moreover, in the modern age, no title is more sought after than that of "victim." A congressional award of money to persons who have done nothing to merit it, but have the proper ancestors, would award not only money but also distinction. Those few would be deemed by the government as special and owed a duty by their fellow citizens.

Any scheme for providing citizens benefits based on blood runs afoul of this important constitutional prohibition. The problem worsens if the benefits are doled out in a manner other than cash. Some reparations proposals put forth a perpetual affirmative action in schools, housing, and employment to repair the damage of slavery. Imagine an America where one class of persons, based solely on descent, had a right to certain schools or jobs denied others. Such a place would soon look more like medieval Europe than modern America.

The Constitution also prohibits the ancient punishment for treason, "corruption of blood." Under this punishment a man's very blood was considered corrupted and no property could pass to his heirs. Those descendants suffered punishment for the father's crimes. The theories backing reparations seem based upon the "corruption of blood" of the descendants on non-slaves in America. Were it the case that 21st century America contained only the sons and daughters of slaves and the sons and daughters of slave owners, the two never mixing nor joined by other persons, the proposals now circulating among academics and U.N. officials would be anathema to the Constitution. Given the great influx of immigration since the Civil War the current proposals are worse.

Reparations would work a far more horrible "corruption of blood" than ever imposed by Henry VIII or George III. An entire class of Americans, being the great majority, are assumed to carry in their veins the sins of the fathers, their blood corrupted through 6 generations. Another group of citizens, ennobled by their blood, would lay claim and right to trillions of dollars of the nation's wealth either in cash payment or special civil rights denied all others.

Such a result when put starkly before the American people will be rejected by them. Their Constitution rejects it already.

John Vecchione is an attorney with Ludwig & Robinson.

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