Historic U.S. Court Cases: An Encyclopedia (American Law and Society), Second Edition

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As we saw earlier it can require that territory wrongfully taken from a country be returned to that country.


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Or as Thaddeus Stevens urged it could require that freed slaves be given forty acres and a mule to enable them to become independent yeomen farmers. Conceivably reparation for blacks today could require that they be according preferential treatment in the competition for jobs and places at universities or colleges. Legislators encourage rather than undermine the self-reliance of the poor when they make laws that protect them from the powerful or enable them to protect themselves from the powerful. Sycophancy not self-reliance is encouraged by being always at the mercy of the powerful.

A different challenge has had more lasting effects and has thoroughly changed the face of affirmative action. Suppose to take a straightforward case that a firm wronged and harmed a black person by denying her on account of her race a well paying position for which she was the most qualified candidate. Plausibly the firm could satisfy her claim to reparation by hiring her in preference over better qualified candidates for the same position if it became available.

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In fact when affirmative action was introduced some years ago its fiercest and most effective critics usually claimed that they would support it if it involved reparation of the sort just described. But the critics had anticipated this reply by insisting that the parents and grandparents would have to prove in court that they had suffered from unjust racial discrimination which was of course usually almost impossible for them to do.

The defenders of affirmative action tried more complicated replies, but their attempts to justify affirmative action as reparation came to an end when the Supreme Court offered a far easier and ostensibly less divisive way to justify affirmative action. Probably it would fail to do so only for young able bodied middle and upper class white males. But this essay is about reparation and not specifically about affirmative action so I will not attempt to examine the flaws of the new diversity based argument for affirmative action.

This entry focuses on making a case for reparations for contemporary blacks for the enslavement of their ancestors, partly because slavery was the most horrific experience that blacks have endured in America, and the one for which the immediate victims of the experience most clearly deserve reparation; and partly because making the case in question nevertheless presents peculiar, difficult, and interesting philosophical problems.

As we will see much of that case will depend on the argument that the injustices blacks endured after emancipation have caused some of the injuries of the slaves to persist into the present. But there is no reason to suppose that these injustices did not themselves cause damages to their victims, quite apart from causing the damages of slavery to persist, and that these damages may also deserve reparation.

In fact there is good reason to suppose that arguments to that effect may be more important politically that slave based arguments for black reparations. Andrew Valls and Jonathan Kaplan have published a stimulating essay that focuses less on slavery and more on Jim Crow segregation and systematic housing discrimination as a basis for contemporary black reparation claims.

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The issues they raise deserve more attention, but I will persist in this entry on the issue of black reparations for slavery because as I hope we will agree it retains its fascination despite its age. Today few would challenge that argument, at least publicly. The argument that many challenge today is that present day African Americans have rights to reparation from the American people or the American government because three hundred years ago the American government permitted the American people to enslave their ancestors. That argument seems to get no support from the undeniable fact that their ancestors had rights to reparations from their masters.

People do not have rights to reparation for the wrongful harms others suffer. Two arguments which I have called the harm argument and the inheritance argument attempt to circumvent that difficulty.

Johnson, John W. 1946–

The harm argument relies on the idea that the transgressions of slavery initiated an unbroken chain of harms linked as cause and effect that began with the slaves and continues among African Americans to the present day. Therefore since the transgressions of slavery harm present day African Americans they have rights to reparation against those who committed those transgressions. The inheritance argument relies on the idea that present day African Americans have inherited the rights to reparation that was owed their enslaved ancestors and was never paid. Three main objections have been urged against the harm argument.

First, that although the transgressions of slavery harmed the slaves, and present day African Americans do suffer from many disadvantages, these disadvantages may not be the result of the transgressions of slavery; they could easily be the result of vast economic and political changes that have occurred since slavery ended one hundred and fifty years ago. Third that if present day African Americans demand reparation for the harms that the transgressions of slavery caused them, then since reparation implies compensation they demand to be made no worse off than they would have been had the transgressions of slavery never occurred.

But if these transgressions had never occurred present day African Americans would not exist. Consequently the harm argument is incoherent Morris , Levin Fullinwider has reformulated the harm argument so that it avoids the first two objections.

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Consequently if present day African Americans do suffer from various aspects of the legacy of slavery, the real cause of those harms is not slavery, but the governments after , for if those governments had vigorously protected the rights of the freed people and their descendants, the legacy of slavery would have faded and present day African Americans would not be disadvantaged by it Fullinwider Boris Bittker made a similar suggestion. In other words though Bittker seems to go a little further than Fullinwider, suggesting that the legacy of slavery would have disappeared completely if the nation had protected the rights of the freedpeople and their descendants, he too concludes that any responsibility for the legacy of slavery that persists today must be attributed to post Civil War governments.

The arguments of Fullinwider and Bittker are a clear improvement on the original harm argument. But they seem to assume that post Civil war governments committed only one transgression against their black populations, namely those governments failed to protect the civil rights of the members of those populations.

In fact these governments committed another and quite distinct transgression against their black populations; they failed to make reparation to those populations. These two transgressions are not the same thing. Fullinwider seems aware that protecting civil and political rights is not the same as making reparation. He seems clear that the U. Interestingly too he seems to think that unpaid labor is the only harm the transgressions of slavery caused the slaves or that merits any mention.

This is very strange in a book titled The Case for Black Reparations for of course unpaid labor was perhaps the least of the harms that the transgressions of slavery visited on the slaves. What about reparation for the theft of their liberty? Had the federal government done nothing after except vigorously protect the civil and voting rights of blacks, the legacy of slavery would have faded considerably if not wholly by now through the industry of blacks themselves.

An obvious difficulty with this view is that large economic inequalities make it difficult for the government to protect the rights of the poor. The implication is that the freed people were sufficiently like these immigrants to justify the inference that had government vigorously protected their civil and voting rights then they too by would have blended into the larger American fabric. But the freed people and their descendants were not very much like the white immigrants arriving from Europe.

To say the obvious, slavery is very bad for people. It prevents them from developing the useful dispositions and skills that people tend to develop in freedom. Although the immigrants had had a rough time in Europe—that is why they flocked to America—they were better prepared to take advantage of the opportunities available than the slaves.

Consequently they would likely have kept well ahead of the freed people and their descendants even if the civil and political rights of each group were equally protected. The issue is debatable of course. Some black writers, Frederick Douglass, for example, seem to think that human beings are resilient, equipped as they are with an almost ineradicable love of liberty, and consequently the slaves would recover readily from the rigors of slavery if only they were given justice.

Alexander Crummell on the other hand seemed to worry about the enduring effects of slavery especially because of the tendency of its victims to remember its horrors, though interestingly Douglass thought that these memories could be bracing Crummell 18, The issue of the effects of the memory of enslavement and domination on recovery from the effects of these evils deserves further study. Whatever the results of that study however it does not follow straightaway that the wrongly injured are not owed reparation just because they are resilient enough to recover from the effects of their injuries without it.

But social equality cannot be secured by even the most rigorous protection of the civil and political rights of the freed people; on the contrary such protection can help social inequality to persist since it entitles individuals to choose their friends and associates even if their choice is determined by color prejudice. Since color prejudice remained strong after the Civil war the white immigrants would more readily associate with well placed and well educated locals and learn useful information and skills from them.

Johnson, John W. 1946–

Finally since social equals tend to marry each other rather than their inferiors, and since immigrant whites were more likely than the freed people and their descendants to become the social equals of prosperous native whites, they were also more likely to marry such individuals and thus to gain access to their wealth, much of it incidentally inherited from the spoils of slavery. Bittker seems aware that the official enforcement of civil and political rights might not nullify the effects of personal prejudice. This issue is of decisive importance for his implied contention that even without reparation blacks would have made themselves equal to whites if there had been no Jim Crow legislation.

The many and various considerations just canvassed suggest that Fullinwider and Bittker are far too optimistic in supposing that the descendants of the freed people, without reparation, would have achieved parity with the descendants of the immigrants if only their civil and political rights had been protected. In any case the issue they raise is a distraction from the central question whether African Americans are owed reparation. Achieving parity with the descendants of immigrants is not the same thing as receiving the reparation one is owed.

pt.sugydaqyno.tk The point of reparation is not to make people equal to others; reparation is not defined as making the wrongly harmed equal to others. In fact, equality has little to do with reparation. People deserve reparation when they have been harmed by transgression but a person may be harmed as a result of transgression and may therefore have a right to reparation and yet be better off than others.

Similarly a person may be worse off than others without having suffered from any harm or disadvantage for which he deserves reparation. If reparation necessarily requires compensation it requires that people be put as far as possible in the condition they would have been in had they not been wrongly injured.

This may make them equal to others, but it may not.


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  4. It can leave them worse off than others and it can also make them better off than others. Some philosophers may protest that we should not allow claims for reparation to get in the way of an ideal egalitarian society, but of course their position is as bad as the utilitarian arguments they disparage that rights may and should be violated in order to maximize utility.

    But it is now time to consider the third main objection to the harm argument. This objection let us recall is that making reparation to the present black population for the harms that slavery caused it is impossible because if slavery had never occurred the present black population would not exist. This problem is now known as the non-identity problem. This difficulty might seem to reappear in the revised harm argument I have just described. For although this argument does not call for compensating the present black population for the harms that slavery caused it, it may seem to call for compensating the present black population for the harms it suffers because of policies enacted and enforced before it was conceived.

    Given that these policies would have affected who was conceived in succeeding black populations, had they not occurred the present black population would not exist. The following discussion shows how this difficulty can be avoided. Imagine two slaves, Tom and Beulah released from slavery. They were released from slavery but the government continued to wrong them in at least two ways: First, by preventing them from exercising rights guaranteed to every citizen; second, by violating their rights to be compensated for the harms that it had caused them by supporting their enslavement.

    And both these wrongs probably harmed them. If you owe me a hundred dollars to compensate me for wrongly breaking my arm, you wrong me again by refusing to give me what you owe me, and you might owe me another thousand dollars for the harms that second wrong might cause me, for example going around for a month with the pain and inconvenience of an unfixed broken arm. Now the government wronged Tom and Beulah in the two ways mentioned as soon as it caused them to be released from slavery and before Beulah conceived any child; but it also continued to wrong them in these ways after the conception of their daughter, Eulah.

    These wrongs to Tom and Beulah almost certainly harmed them by forcing them to remain longer in the poverty and ignorance that slavery had put them in. But it is more germane to the present argument that the wrongs also almost certainly harmed their daughter Eulah. They harmed her by keeping her parents in poverty and ignorance and by therefore also keeping her in ignorance and poverty. They also harmed her by causing her to be raised by parents with the various disabilities that the experience of slavery normally causes its victims.

    If wrongdoers must make reparation for the damages their wrongdoing causes other people then the government must make reparation to Eulah. If that were the argument we would have an inheritance argument, not a counterfactual argument. And she can rightly press that claim against the government.

    It is not as though her parents could have done better by her but chose not to. They had no choice but to raise her in poverty and ignorance. The government could have given them a choice if it had compensated for their wrongfully caused harms, or allowed to recover from them.

    But it did not. Second the amount of the compensation she is owed does not depend on the amount of compensation they were owed. It depends on the harms she suffered. Though she suffered those harms because they were harmed and not compensated, compensating her for her harms may be much more, or much less , than compensating them. Third, she may have an inheritance based claim to their compensation.

    The fact that she was harmed because they were not compensated and can claim compensation for that harm does not mean that they lose their claim to be compensated for their harms. If they were never compensated she may therefore inherit a right to their compensation.