Redemption song: An analysis of the reparations movement

University of Memphis Law Review, The, Winter 2003 by Jones, Christopher C

In addition to a contracts theory, Special Field Order #15 could potentially open the door to a 5th Amendment claim. The potential claimant could assert that President Johnson's order to return the land to its pre-Civil War holders, which effectively destroyed the efforts of Special Field Order #15, constituted a "taking" in violation of the Fifth Amendment of the Constitution. The Fifth Amendment of the Constitution reads in relevant part: "[N]or shall private property be taken for public use, without just compensation."107 The claimant would assert that the capturing of land from the newly freed slaves and its return to its pre-Civil War owners was an unconstitutional taking.108

Though this appears to be a sound theory of recovery, opponents would point out problems with implementation. First, only those persons who could establish a direct familial link to the ex-slaves who were deprived of this land would have standing to bring this claim. Opponents would note that this probably would represent only a scintilla of the African-American population. Second, as the records of slaves and slave owners are sparse at best, opponents would point to the extreme difficulty of establishing a relationship between a claimant and an ex-slave who was the victim of an unconstitutional taking.

B. Unjust Enrichment

Another way to potentially reach the federal government would involve, as in the Farmer-Paellman action, a claim for restitution or unjust enrichment.109 Restitution is the "[r]eturn or restoration of some specific thing to its rightful owner or status."110 The reparations claimant would assert that specific defendants, such as American corporate actors and the United States government, profited unjustly from the use of slave labor.111 Additionally, the claimant would assert that insurance companies, such as Aetna, have been unjustly enriched by profiting from providing insurance to plantation owners and slave ship builders.112

Potential defendants in such an action would argue that they cannot be fairly said to have participated in any activity that at the time was illegal. While the horrors of slavery are well documented, they will point out that the reality was that slavery was very much a legally permitted practice. Further, opponents will note that many of these companies are several corporate incarnations removed, through mergers and acquisitions, from the original companies that participated in the slave trade, thus making the line of responsibility even more tenuous. In addition, they might argue that many of these companies now employ thousands of African Americans, provide valuable services to African Americans, and/or have made great strides in implementing affirmative action programs in their industries.

C. Tort Actions

The hypothetical reparations claimant would also likely bring a variety of tort claims.113 These would include actions for battery, assault, false imprisonment, and intentional infliction of emotional distress. Unlike contract actions, these tort actions would require more specificity in the pleadings concerning specific victims and incidents. This would also place a greater burden on the claimant to identify specific culpable parties.