June 04, 2005

Slavery Apology Statutes Are Unconstitutional

All right, before I get into this I want to first say that I have no bone to pick with abolitionism, the Civil War or anything else. I don't have any interest in mimicking the values of the CSA or in trying to lionize those proto-fascists into historic heroes. In fact I would say that my interest in the antebellum GOP and the 19th century abolitionist movement are two of my strongest inspirations for political involvement. What I say, though, is mandated by the Constitution and civil justice: punishing people for actions committed that were legal at the time is not kosher. This is a general rule, and it does not apply to other countries or governments (the Nazis couldn't use the same excuse that they had legalized genocide).

It screams against our basic sense of natural justice, but civil justice is a totally different animal. Persons may not be punished for actions committed that were legal under the Constitution and laws of the US at the time. That's the prohibition on ex post facto laws. Persons must have an expectation that what they do legally will not come back to haunt them later. That's the tyranny of the future, and a tyranny of fear. Imagine if you spent your life worried that at some point a perfectly legally action could come back and be punished later. Again, I am not referring to foreign dictators who manipulate the civil law and egregiously abuse natural law; they can have no expectation of protection for what they've done.

Since slavery was legal, tragically, it was an activity protected by the US government. If somebody stole your slaves or killed your slaves, you had recourse through police and courts to seek redress and compensation. By the same token,

The very nature of a diverse, individualist society requires that people have a right to do as they wish. If present conduct might one day in the future be illegal, then it totally undermines individualism. The safest activities are ones accepted by the majority, and thus least likely to involve serious future punishment. After all, punishing 60% of the population would be unwieldy and unpopular. Ex post facto laws dampen civil freedom and attack the very idea of a society founded individual free choice and diversity of action and belief.

(On a libertarian doctrine point: If we were going to let natural law rule, and punish without using civil law the businesses that once owned slaves, then we'd be free under natural law to ignore these slavery apology statutes, which exist only in civil society.)

Of course, all the people who committed the bad acts of slavery are long since dead, as are their grandchildren. Nobody alive was a slave or a slaveowner. It's therefore awkward to decide just who deserves punishment. After all, banks and insurance concerns that might have dealt with slaves don't have consciences or memories, only assets and bottom lines. How can you ask an accounting mechanism or a business agreement to express remorse? This is just a way to say 'slavery was wrong' forty years after the 1960s Civil Rights Acts and 140 years after Appomattox; there's not really a lot to do about slavery and black issues, so they go into unconstitutional stuff like these apology statutes. It's well-meaning but ultimately doesn't really help anything and isn't constitutional.


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