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fauxlaw

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Topic

#2934

Resolution: The US Congress cannot merely legislate reparations for descendants of slaves

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fauxlaw

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Publication date: 03.20.2021 10:07PM
Last updated date: 05.15.2021 02:03PM
Type: Standard
Number of rounds: 3
Time for argument: One week
Max argument characters: 12,000
Voting period: One month
Point system: Multiple criterions
Voting system: Open

Contender / Con

PoliceSheep

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Description

Resolution: The US Congress cannot merely legislate reparations for descendants of slaves.

Description: The notion of reparations payments to descendants of slaves in the U.S. has been a political discussion for generations. As initiator, I contend, and my BoP is that Congress cannot enact ordinary law to authorize and mandate such payment. Con will take the opposing view, and BoP, that Congress can enact such legislation.

Definitions:

US Congress: The legislative body of the U.S. government, consisting of the Senate and House of Representatives.

Legislate: The function of US Congress to enact federal law

Reparations: Proposed authorized payment by the U.S. Government in cash or tax credit to descendants of black and indigenous tribal slaves for actions caused by the U.S. Government of obvious mistreatment up to, and including death of ancestors.

Slaves: Any black and indigenous tribal persons sold into slavery by slave traders to U.S. citizens during the 17th to 19th centuries, inclusive, from 1619 and ending by act of Congress by the passage and ratification of the 13th Amendment in 1865. Slavery being understood to be the act of imposed labor with no compensation to slaves while profiting slave owners, and which had the added shame of physical, mental, and spiritual abuse of slaves in many cases.

Indigenous: [Relative to the parameters of this debate] People who populated the North American continents before the arrival of European [predominantly] immigrants. I hesitate to use the term “Native American” because that term is not accurately descriptive of the definition “indigenous.” “American,” and "America" are European terms not created by the indigenes.

Tribes: Names of indigenous tribes established by themselves, such as: Cherokee, Iroquois, Crow, Navajo.

Debate protocol

Three-round debate.

R1, R2: Argument, rebuttal, defense

R3: No new argument; rebuttal, defense, conclusion only

All argument, defense, rebuttal, and sourcing will be listed within the context of the debate argument rounds only, except sourcing may also be listed within comments within the debate file to conserve maximum space for argumentation, but only during the argumentation’s three rounds. Neither participant may consult with any person associated with DART to serve as a sourced citation as a feature of participant’s argument.

No waived rounds. No more than one round may be forfeited, or forfeiture of entire debate will result. Concession in any round is a debate loss.

No declaration of victory will be made but in the 3rd round. No declaration of assumption of the opponent’s concession or forfeit in any round. These conditions will be obvious to voters only by either participant’s own declaration.

Arguments, rebuttals, defenses, or conclusions may not address voters directly for voting suggestions beyond statement of validity for arguments, et al, made in all rounds. Participants may encourage voters/readers to read/examine any portion of, or entire rounds.

Round 1

fauxlaw

03.29.2021 04:45PM

Pro

Thank you, PoliceSheep, for accepting the debate. Best wishes for a lively and productive debate.

Resolution: The US Congress cannot merely legislate reparations for descendants of slaves.

I Argument: Constitutional law:I refer, specifically, to Article I, section 2, clause 3 of the U.S. Constitution: “No Bill of Attainder or ex post facto Law shall be passed.”[1]. This will require definition of terms, as understood in 18th century English syntax [the language of the Constitution], for which I will offer the Oxford English Dictionary [unabridged] [hereafter, “OED”] definition of terms due to the exhaustive effort of the OED to include etymological detail. All definitions are considered within the scope of the United States, Tt wit:

I.a Bill: In the United States, a document of legal standard created by Congress for the purpose of passing into law [passed by both houses of Congress, and subsequently signed by the President].

I.b Attainder:the action or process of effecting the legal consequence of judgment of death or outlawry in respect of treason or felony, viz, forfeiture of estate real and personal, corruption of blood, so that the condemned could nether inherit nor transmit by descent, and generally, extinction of all civil rights and capacities.

I.c Ex post facto:done after another thing, and operating retrospectively, esp. in ex post facto law.

I.d Therefore, no law may be passed in Congress that imposes attainder or ex post facto conditions. There is no conditional allowance in the constitutional clause; it exists in clear opposition to the proposal of reparations, particularly in the latter case; ex post facto law, which, by definition, imposes retroactive effect; i.e., law imposing its enforcement before the enactment of the law.

I.d.1 In the case of reparations, such a law would impose a requirement on the current Government of the United States to pay descendants for humanitarian flaws imposed by that government on its historic counterparts by the imposition of slavery upon residents of the country as constituting Colonies of Great Britain [because such slavery was also imposed by Great Britain in that era. Thjis began in the American Colonies of Great Britain in 1619 with the arrival of the first peoples sold to slave traders in Africa to be transported to some of the Colonies of Great Britain, and subsequent enslavement of some indigenous tribal members abiding on sovereign Colonial land when British, and other nations’ emigrants, first came to the British Colonies of what would become the United States of America, and a sovereign nation. This practice of slavery would continue until slavery’s abolition in 1865.

I.d.2 Potentially, even in the case of attaint, the Constitution is clear in the prohibition of such law because those who would obtain reparations would, in fact, obtain monetary inheritance, and not even from their ancestors, and not even from the Government that allowed the mistreatment of their ancestors, but from a current Government, which never imposed such mistreatment. This defined infraction thus fits the forbidden act of attainder, which is unconstitutional to impose by the reference [1].

I.e Further, because section 9.3 of Article I describes a constitutional law in its simplicity, there has never been a constitutional challenge to it in the Supreme Court, at least. For Congress to attempt and pass a demand for reparations, and for a President to then sign it, such actions would be swiftly followed by an unconstitutional charge from any number of lower court litigants.

II Argument: The only path to legalizing reparations

II.a The Constitution of the United States is unique in its standing as the root of all law in the United States because it cannot be changed by simple legislation, and subsequently by signature of the President, as can effect all laws established by Congress that have root in the Constitution. The Constitution can only be altered in its verbiage as originally composed and ratified by the 13 British Colonies originally creating the sovereign nation of the United States by the Continental Congress in 1788, and as amended by the means described in Article V, in total, of the Constitution to wit:

II.a.1 “The Congress, whenever two thirds of both Housesshall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States,shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof,as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”[2]

II.a.1 Ordinarily, Congress is enjoined by Article I, section 8, to legislate in 18 separate categories of law, all of which must pass constitutional muster. These are the numerous federal statutes, all contained within the enlarging collection of the United States Code. However, by means of employment of Article I, section 8, Congress cannot amend the Constitution. Such action is more specific, selective, and complicated than mere legislation by said Article I.

II.a.3 Article V defines the only means of constitutional amendment. Without such Amendment to the Constitution, composed and passed by 2/3 of both Houses of Congress, or by 2/3 of all States by convention, and ratified by ¾ of all States, no act of Congress, alone, can qualify the payment of reparations. Period.

II.b It is mandated by Article III of the Constitution that the final arbiter of constitutional muster of all statutes passed by Congress is by decision of the Supreme Court, if not successfully adjudicated in lower courts of appeal, should such legal cases arise challenging legislative action by Congress.[3]

[1]Constitution of the Unites States, Article I, section 2, clause 3

[2]Constitution of the Unites States, Article V

[3]Constitution of the Unites States, Article III

PoliceSheep

03.31.2021 05:17PM

Con

Introduction

Thank you very much for this debate. I always enjoy getting into the technical detail of legislation and legislative processes both in the US, of which this debate is concerned, and also of the British Parliament.

I will refrain from any rebuttal during this argument to give each competitor an equal chance to to grapple with each argument.

Definitions

I do not challenge any of my opponent’s definitions that they outlined at the beginning of his argument. I will be challenging their interpretation and application to this argument, however as I said in my introduction, I will not be doing this here but in my next argument.

Precedent

There are numerous precedents of legislation passed by Congress concerning reparations for past mistakes and actions which would later be deemed wrong or even criminal by the United States government.

Japanese-American Claims Act of 1948 and Civil Liberties Act of 1988

Between both these acts, they paid reparations to Japanese American that were put in internment camps during the Second World War. The first act resulted in $38 million being paid out to settle claims of loss of property, belonging and business. [2] [3]

The US Government enforced this law and was later seen to be so abhorrent that it took just over half a century to be deemed to be so shameful that further reparations were made under President Reagan.

This example is not exclusive. There have been many times in American history where there has been a law, policy or other action by the United States government which has subsequently been deemed immoral to the extent reparations are seen as needed by the Congress of the day - either monetary or even land as in the case of the Alaska Native Claims Settlement Act as signed by President Richard Nixon.[4]

Case Law

In reality, the question of the constitutionality of reparations for slavery will be decided the Supreme Court; the ultimate arbiter of the constitution. Looking at their past decisions is a justified way to determine what may be decided in a hypothetical judgement. [5]

Based on precedents from positive discrimination, or ‘affirmative action’ - which is comparable due to their shared aims of correcting historical disadvantages based in race. The result of those policies being challenged over many years is the ‘strict scrutiny’ standard. This means any affirmative action policies must be “narrowly tailored to meet a compelling government interest, through the least restrictive means available.” as decided in Fisher v. University of Texas (2013) and upheld in subsequent decisions. [6] [7]

Reparations for slavery clearly meets that standard and would not be struck down based on discriminatory grounds due to the fact the reparations would be based on the historical disadvantage the descendants of slaves have suffered, not based on their race itself.

Conclusion

Therefore, based on past SCOTUS decisions and the past acts of Congress it is clear that Congress does have the power to legislate reparations for descendants of slaves. As stated in my introduction, I will refute PRO’s misguided arguments in the next round.

Sources

[2] https://www.loc.gov/classroom-materials/immigration/japanese/rebuilding-a-community/

[3] https://history.house.gov/Exhibitions-and-Publications/APA/Historical-Essays/Exclusion-to-Inclusion/Redress/

[4] https://ancsaregional.com/about-ancsa

[5] https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about

[6] https://www.oyez.org/cases/2012/11-345

[7] https://www.oyez.org/issues/155

Round 2

fauxlaw

04.01.2021 03:31AM

Pro

Resolution: The US Congress cannot merely legislate reparations for descendants of slaves.

I, II Arguments: in my R1.

III Argument: The correlation between law and human behavior

III.a Law and behavior are derived from separate needs and motivations. Society needs law to sustain the society, otherwise that society will collapse.[1] The basis of that thought is that our inclination to be social animals is acute. However, our equally natural tendency is to resist restriction of thought and action, thus, an inclination to rebel against law, to be unfettered, even in our association with one another in a civil society. We are social animals, and simultaneously driven to be individuals. Thus, the conflict between being a law-abiding society, and behaviorally individualistic.[2] For most of us, these separate motivations are controllable; for some, it is a difficult path to maintain consistency. Quite simply, the law cannot compel us to be law-abiding; to be so is by our choice, accepting the consequences of lawlessness individually.

III.b This relates to the issue of reparations because the above conflict is seen in the social variables in play considering the historic slavery issue Americans suffered in our early history, and even after slavery was abolished 156 years ago. Some Americans still suffer the consequences of that early history by a concept known as intergenerational trauma: “…inter-generational trauma is a traumatic event that began years prior to the current generation and has impacted the ways in which individuals within a family understand, cope with, and heal from trauma.”[3]

III.b.1 Slavery was traumatic, exacerbated by the imposed generations of its practice upon black and indigenous slaves, let alone the effect had on their descendants, in some cases, having an intergenerational effect, psychologically, if not physically, and imposed by individuals’ discrimination if not systemically by the government and its agencies. This “intergenerational trauma” is, today [and since the 1980s], recognized as a clinical diagnosis affecting individuals and families even though slavery as a direct traumatic effect was ended over 150 years ago.

III.b.1.A The issue of systemic vs. individually-driven racism is an issue that has seen several debates just on this debate site, by several opposing debaters, including me. Though the issue is relevant, it seems to me outside the scope of this debate and ought not be entertained further in this debate. Therefore, I will not undertake the debate in that realm, though will, if argued by my opponent, rebut.

III.b.2 However, related to the correlation of the law and human behavior, this argument may appear to be an argument supporting Con’s BoP. I acknowledge the potential, but I argue against it for the following reason: the argument offered above, I.a, that law and behavior, being individual motivations, even though affecting society as a whole, are solved individually, one person at a time, confronting the conflict and saying, “No, not today, not for, or by me” as in making the personal decision to not fall into the trap of feeling victimized, or the cause for a governmental consequence that ended, after all, over one century ago. That it required that government another 100 years to enact the watershed Civil Rights Act of 1964 is testament to the difficulty the allowance of slavery in this nation’s history has caused, but, the response of congressional lawmaking by reparations is inappropriate, not only due to the constitutional disruption that is the result as argued in my R1, but because of the irrational expectation that human behavior is automatically compliant with lawmaking. It is the reason why democracy is not the easiest, if, still, the most equalizing form of government on Earth.

III.b.2.A Further, an individual cannot point to any other living person and demand reparation for events that occurred long before either was born. That is, the feeling of need of reparation has no basis in current society to which one who feels victimized is, in fact, victimized by the current society. By individuals, yes, but not by the society’s system. “Systemic,” in this instance, implies societal legal statutes imposed by government by legislation, or by government departmental policies.

III.b.2.B Further still, no individual who is descendant from a Black or Indigenous tribe, even if able to demonstrate descent from a slave, cannot for certain demonstrate victimization by another whose ancestors were on American soil at the time of the imposition of slavery. The modern descendant of that, then, lawful, though despicable imposition, may have only recently arrived on American soil, having naught to do with the imposed slavery condition. By what right is reparation demanded of such a newly naturalized citizen?

IV Rebuttal: Con arguments [“Precedent”] outside the scope of the debate

IV.a Con’s R1 reference to “reparations to Japanese Americans” is outside the scope of this debate for two reasons, and, therefore, needs no rebuttal:

1. The Resolution specifies the scope as consideration of “reparations from descendants of slaves,” the which term, “slaves” is further defined in Description as it is therein defined by limitation.

2. Con’s reference is to extant U.S. citizens of Japanese descent, whereas no slaves in scope of the “slaves” definition were of Japanese descent, and, therefore, do not fall within the Resolution’s scope.

IV.b Con’s reference to the plight of land use/ownership by Alaskan aboriginals subsequent to the U.S. purchase of Alaska from Russia in 1867 by the Treaty of Cession was entirely due to the failure of Congress to act with regard to recognition of land claims by Alaskan aboriginals [aboriginals being, be definition, peoples inhabiting land from early history before the arrival and claim of sovereignty by colonials] is a separate issue also not fitting the scope of the resolution for the same two reasons as noted above, IV.a. Alaskan aboriginals were never involved in the issue of U.S. government imposed slavery, and were never subject to U.S. law until 1884 by the First Organic Act for Alaska.[4] The referenced source [4] is Con’s own R1 source. By this time in U.S. history, slavery was abolished for 19 years.

V Rebuttal: Con’s argument, “Case Law”

V.a As there has yet to be any case law that has risen to the level of the Supreme Court with regard to any proposed reparations within the scope of the debate [descendants of slaves, as defined], Con is incorrect in assigning constitutionality to the jurisdiction of the Supreme Court. Congress, alone, will remain the responsible branch of government regarding this issue until there exists a SCOTUS case to test constitutionality of reparations, specifically. We have yet to see a citation by Con in this regard. SCOTUS has no jurisdiction on any possible constitutional challenge whatsoever until it has, itself, decided to take on a case to adjudicate [Article III, section 1], either by original jurisdiction, as defined by the Constitution [Article III, section 2, clause 2], or by appellate jurisdiction [Article III, section 2, clause 2].

V.b Con’s own source [R1, [5]] stipulates, “The Supreme Court plays a very important role in our constitutional system of government. First, as the highest court in the land, it is the court of last resort for those looking for justice.”[5] When no potential litigant has a case that may, by acceptance by SCOTUS, reach the Supreme Court, there is no jurisprudence to be had. In effect, Congress has the necessary responsibility to review constitutionality of all legislation, and, as passed, and dated for initiation of the law[s] passed, all legislation is assumed constitutional until such is challenged by subsequent litigation. In that light, and that light only, as Con expressed, the Supreme Court is “the ultimate arbiter of the constitution.”

V.c However, SCOTUS is not, until such a case reaches them, “Looking at their past decisions [as] a justified way to determine what may be decided in a hypothetical judgement.” [sic] Such is a misread of their function, as stated by Con’s source in “Judicial Review,” to wit, “The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803).”[6] [Con’s source [R1, [5]] What Marbury does not say is that the Court may, upon its own recognizance, render precedent on any matter that is not before it in either original or appellate jurisdiction. Further, the primary holding in Marburywas that, “Congress does not have the power to pass laws that override the Constitution, such as by expanding the scope of the Supreme Court’s original jurisdiction.”[7]

V.d Con’s first referenced “case law” was Fisher v. Texas [2013],which was not a reparations case at all, and further, was brought by a single individual and which had naught to do with U.S-sanctioned slavery from 1619 to 1865; the stated scope of the debate. Further, neither the Syllabus, nor the Opinion, nor either Concurrence make mention of the term, “reparations.”[9]. [Note: this is Con’s source [R1, [6]] This was a case of 14th Amendment rights. Being outside the scope of the debate, this argument requires no rebuttal.

V.e Con’s second reference “case law” was a list of Supreme Court cases regarding, not “reparations,” but “affirmative action.” No case had relevance to the Resolution’s topic, and, therefore, was outside the scope of the Resolution. Further, no case had mention of “reparations” in the syllabus, nor opinions. Lacking relevance, this argument requires no rebuttal.

VI Rebuttal” Con’s Conclusion

VI.a Con stated, “Therefore, based on past SCOTUS decisions and the past acts of Congress it is clear that Congress does have the power to legislate reparations for descendants of slaves.” Having demonstrated that Con’s arguments, rebutted above in IV, V that the entire Con R1 is outside the scope of the debate Resolution. Further, all case laws noted by Con have naught to do with reparations. I declare Con’s stated conclusion as failing to meet the standard BoP requirement against the resolution. The target subject is Congressional legislation specifically regarding reparations for descendants of 2.5 centuries of slaves in America, not individual seekers of affirmative action, aboriginal Alaskan land claims, or Japanese Americans seeking to recover property and position as lawful and rightful U.S. citizens.

VII Conclusion

Con’s misdirection to affirmative action, et al, has failed to dismantle the Resolution. I caution Con to stay on point

[1]https://core.ac.uk/download/pdf/33737735.pdf

[2]ibid

[3]https://www.acamh.org/blog/intergenerational-trauma/

[4]https://ancsaregional.com/about-ancsa

[5]https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about

[6]ibid

[7]ibid

[9]https://supreme.justia.com/cases/federal/us/570/297/#tab-opinion-1970747

PoliceSheep

04.08.2021 12:45AM

Con

Now to address my opponents arguments.

Rebuttal I: Constitutional law

1d: Therefore, no law may be passed in Congress that imposes attainder or ex post facto conditions. There is no conditional allowance in the constitutional clause; it exists in clear opposition to the proposal of reparations, particularly in the latter case; ex post facto law, which, by definition, imposes retroactive effect; i.e., law imposing its enforcement before the enactment of the law.

I shall split my opponent's argument into two:

Ex post facto
My opponent is mistaken on the application of the constitution between civil and criminal law. In the Supreme Court decision of Calder v. Bull, a case which has been upheld many times in subsequent decisions, the ruling is clear that it only applies to criminal law, and not civil law. Reparations for slavery fall into the realm of civil law and therefore, the section of the constitution referred to by my opponent does not apply to this situation. [8]

My opponent and I agree that the Supreme Court is the ultimate interpreter as to the meaning of the Constitution thus it is clear that as the current interpretation of that clause stands, there is nothing unconstitutional about reparations for slavery.

Bill of Attainder

The 'Bill of Attainder', however, does apply to civil law and thus requires a different rebuttal. The issue with PRO's argument here is that it is required that there requires a specific intent in the Act to 'punish'. [9] As decided in Nixon v. Administrator of General Services (1977), a court when deciding such a case must look “to its terms, to the intent expressed by Members of Congress who voted its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect,”. A slavery reparations act is not intended to punish the current United States Government, but to help the decedents of slaves who were victims of a historical Government's actions. The US Government supports victims of other Government's historical and current misdeeds, such as supporting asylum seekers, which is not seen as a punishment.

Additionally, in the case of South Carolina v. Katzenbach (1966), when argued that the Voting Rights Act was a Bill of Attainder against the state of South Carolina, ruled that only a person may be victim of a Bill of Attainder, and as such the State of South Carolina, nor the US Government are recognised as people in the wording of the Constitution and thus this argument does not apply to this situation. [10]

Rebuttal II: The only path to legalizing reparations

PRO's Argument II isn't really an argument as it relies on the predicate that their Argument I is correct, which I have now shown to be false. PRO goes on to describe the process of a constitutional amendment. I fully agree with PRO that if a constitutional amendment is required, then that is not 'mere legislation' and that in that scenario, the motion would be correct. However, as PRO's first argument fails, so does this one making no constitutional amendment required.

Rebuttal III: The correlation between law and human behavior

PRO's argument here is that there is no 'right to reparation' and that there is not a justifiable reason for Congress to decide to legislate for reparations over slavery. They refer to it as an 'inappropriate' decision for Congress to make. This is irrelevant to the power of the elected representatives in Congress to legislate for slavery reparations.

For the record, I'm quite neutral on the idea of slavery reparations, with no strong feelings either way. But both mine and PRO's political opinions are irrelevant to the constitutionality.

Response to Rebuttal IV: Precedent
PRO takes issue with me bringing in other cases of similar effect that have not been struck down by the Supreme Court. PRO argues that the Japanese-American internment camps example is irrelevant and out of the scope of the debate due for two reasons (IVa 1&2). These reasons are that Japanese-Americans are not decedents of slaves and therefore fall outside the resolution's scope.

I agree that this case does not prove my point, but was simply supporting evidence to the fact that a Bill passed that paid out to the decedents of a victimised group of individuals for an event that was lawful at the time. This would have the exact same constitutional implications as any slavery reparations and the fact the Supreme Court has upheld this Act of Congress is a further proof as to my Rebuttal I in which the 'ex post facto' clause only applies to criminal, not civil law.

Response to Rebuttal V: Case Law

I agree with PRO that the Supreme Court has no power to initiate cases or to rule on cases not put forward by litigants. I also agree with PRO on the role of Congress in ensuring laws passed by them are within the bounds of the Constitution.

PRO misunderstands the argument I was making. I was using those affirmative action cases as a speculation as to the precedent SCOTUS may take into account when making a hypothetical judgement on a case on the constitutionality of an Act of Congress granting reparations to decedents of slaves.

As I believe this is no longer a point of contention, nor an argument one way or the other on the resolution a hand, I will drop this argument.

Response to Rebuttal VI: Conclusion

After dropping my previous 'Case Law' argument, I will as well drop my R1 conclusion.

R2 Conclusion
I have proven that my opponent's argument on a bill of attainder (doesn't punish and doesn't apply to Governments) and ex post facto (doesn't apply to civil law) are irrelevant to the motion and thus have "dismantle[d] the Resolution"

Sources

[8] https://web.archive.org/web/20061101152523/http://www.michaelariens.com/ConLaw/cases/calder.htm#

[9] https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/bills-of-attainder

[10] https://supreme.justia.com/cases/federal/us/383/301/#tab-opinion-1945951

Round 3

fauxlaw

04.08.2021 02:03PM

Pro

Resolution: The US Congress cannot merely legislate reparations for descendants of slaves.

I, II Arguments: in my R1.

III – VI Arguments / Rebuttals: in my R2

VII Statement: In keeping with Description, I have concluded argument with submission of R2. R3 will offer defense of my R1, R2, rebuttal to Con’s R2, and conclude. Further, I submit that Con has committed a tactical error in avoiding rebuttal of my R1 arguments in his R1, leaving available words, and time, on the table that are not now recoverable, thus crowding a Con R2 and, potentially, an R3 playing now restricted catch-up [no new arguments allowed].

VIII Rebuttal/Defense: My R1 I, II Arguments

VIII.a My Argument I: Constitutional law: Con made no rebuttal in his R1 of my R1, arg. I. It was dropped.

VIII.a.1 My defense against Con’s R2 rebuttal is as follows: Con cited Supreme Court case Calder v. Bull [1978][1] as evidence that ex post facto and Bill of Attainder laws do not apply to civil suits, such as was Calder. However, that case cites the U.S. Constitution, Article I section 10, which addresses State legislatures, whereas my reference to the constitutional prohibition of ex post facto and Bill of Attainder laws is a clause directed to Congress; clause 9. Calder makes no reference to Article I, section 9 in its decision. The two Articles are speaking to two different bodies of legislature. Section 10 does not apply to this debate since the Resolution clearly designates Congress as the legislative body of concern, and not State legislatures.

VIII.a.2 Further, in Calder,the Syllabus makes reference to several other States [CT is the State of concern in Calder] similar to CT, saying: “In the declaration of rights by the convention of Massachusetts, part 1st, sec. 24, ‘Laws made to punish actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust. . . .’”[2] In the instance of creating Reparations, no suggestion has ever been made that any current citizen of the United States would be punished for the crime of imposing slavery on anyone; just that the government would pay reparations. Where no punishment is applied, no violation of the precedent set by Calder will have occurred.

VIII.a.3 Con raises two additional Court cases, Nixon v. Administrator of General Services [1977], and South Carolina v. Katzenbach [1966], however, both cases are as above in VIII.a.1, and VIII.a.2: they miss the mark. They each deal with punishment of crimes involving Bill of Attainder, but, again, these cases are not relevant since there has been no suggestion of punishment that would be applied to the creation of Reparations. Therefore, Con’s rebuttal fails to assail the Resolution.

VIII.b. My Argument II: Legalizing reparations: Con made no rebuttal in his R1 of my R1, arg. II. It was dropped.

VIII.b.1 My defense against Con’s R2 rebuttal is as follows: Con projects that since his rebuttal against ex post facto and Bill of Attainder is successful, this Arg. II is not applicable. Since I have negated all Con’s Court case references as not applicable, this rebuttal drops my Arg. II. The matter is settled since Con cannot provide new argument in R3. Con’s rebuttal against the Resolution fails.

IX Rebuttal/Defense: My R2 III Argument

IX.a Argument III: Human behavior and law: Con’s R2 rebuttal fails to turn away this argument of relation between the law and human behavior. Con, in effect, agreed with the argument, saying, “For the record, I'm quite neutral on the idea of slavery reparations, with no strong feelings either way. But both mine and PRO's political opinions are irrelevant to the constitutionality.” However, I have not stated political opinion in my Arg. III; I cited the science behind the dilemma of inter-generational trauma, relative to this specific argument, and that even science does not justify Reparations.

IX.b Further, Con rebuts Arg. III in his R2 that “This is irrelevant to the power of the elected representatives in Congress to legislate for slavery reparations.” On the contrary, it is clearly given by my Arg. II, and my defense of it above, VIII.a & b and all sub-paragraphs, that Con’s rebuttal using Article I, section 10 as a rebuttal by Supreme Court precedent only applies to State legislatures. Con cited no Supreme Court case precedent applied to Article I, section 9, the which discusses the prohibition of Congress “…to legislate for slavery reparations,” clearly defeating Con’s rebuttal.

X Defense: My R1 Rebuttal to Con R1 “Precedent”

X.a Con insists that his R1 arguments of “Precedent” fit the paradigm of the Resolution as cited above. No, they do not. Con stated, “This would have the exact same constitutional implications as any slavery reparations…” No, it would not for the simple reason that the Japanese-American people directly affected by the WWII internment camp misery were compensated, not descendants of generations later.

X.a.1 The Resolution clearly establishes the scope of the debate to “descendants of slaves.” Con’s precedents cite the Japanese-American Evacuation Claims Act [1948][3] and the Civil Liberties Act [1988],[4] neither of which address descendants of slaves, and do not contain the subjects of “reparations,” “slavery,” or “descendants” by reference anywhere in their respective texts.

X.a.1.A There is one additional rebuttal on this matter affecting the Alaskan aboriginal land claims: even had Congress acted to resolve those land claims within the context of the 1884 First Organic Act for Alaska, Congress was prohibited from doing so by way of a Bill of Attainder, or ex post facto law; the Constitution forbade as of 1788, by 1884, and still forbids it by virtue of the U.S. Constitution, Article I, section 9.

X.a.2 Therefore, Con’s precedent arguments of R1, nor his defense of them in R2, do not successfully assail the Resolution.

XI Defense: My R1 Rebuttal to Con R1 “Case Law”

XI.a Further, Con insists his R1 arguments of “Case Law” fit the paradigm of the Resolution. No, they do not.

XI.b Con’s first “case law” argument[5] misinterprets the Supreme Court’s jurisdiction and power of judicial review, as I demonstrated in my R1, V.b.

XI.b.1 Con’s second “case law” argument[6] lists court cases, none of which adjudicate the concerns, and contain no verbiage regarding “reparations,” “slavery,” or “descendants” by reference anywhere in their respective syllabi. Con accused that I misunderstood the intent of his argument defense in his R2. No, I did not. Since these quoted terms do not exist in any of Con’s referenced case law in his R2 defense, the Supreme Court cannot invent them into any case presented by Con as evidence that SCOTUS could then use them as precedent in some imagined future Supreme Court precedent. The Court would be making the same error of designation of precedent as Con made in his R2 rebuttal, citing section 10 of Article I, which says nothing regarding Congress as a legislative body, but rather, only State legislative bodies. [See my R3, IX Defense, above]

XI.c Therefore, Con’s claim in R2, “As I believe this is no longer a point of contention, nor an argument one way or the other on the resolution a hand, I will drop this argument.” Con, has, indeed, dropped the argument and I stand on my rebuttal of his Case Law argument of R1, as stated in my R2, and above of R3. Con’s case law arguments/rebuttals of R1 and R2 do not successfully assail the Resolution.

XI Rebuttal: Con’s R2 rebuttal of my R2, VI Rebuttal [Conclusion]

XI.a Con's R2 concluded, “I have proven that my opponent's argument on a bill of attainder (doesn't punish and doesn't apply to Governments) and ex post facto (doesn't apply to civil law) are irrelevant to the motion and thus have ‘dismantle[d] the Resolution.’” Not at all, since Con’s entire rebuttal rested upon the Supreme Court precedents of Calder v. Bull [1978], Nixon v. Administrator of General Services [1977], and South Carolina v. Katzenbach [1966]. Since Calder based its precedent against Article I, section 10, and not section 9, the case reference is invalid. Further, the trailing two Court cases refer to punishment precedent, but since punishment is not a feature of proposed abolition of the E.C., but only Reparation payments by government, these case references are also invalid. The Resolution stands.

XII Conclusion:

XII.a My R1, arg. II introduced the crux of this debate; that Congress must propose and pass/ratify a constitutional amendment, and then the States must also ratify in order to legitimize any effort to legislate reparations for descendants of slaves. There exists no other path to do so. The Constitution allows no other path as demonstrated by Article I, section 9, clause 3.[7] This clause must be changed by amendment to allow otherwise. Con attempted to reverse this argument by citing case law that refers to Article I, section 10, which misapplies the Con argument completely.

XII.b On the strength of the three primary arguments I have presented, with Pro offering only misdirection instead of an appropriate contrary BoP, I declare that my arguments, rebuttals and defense justifications are sufficient to carry the debate in my favor. I pass R3 to Con for a final rebuttal, reminding that no new arguments may be made, such as possible reference to still more Supreme Court cases as precedent, since all Con’s case law references to date have failed. I ask for your vote. Thank you.

[1]https://supreme.justia.com/cases/federal/us/3/386/#tab-opinion-1935354

[2]ibid

[3]https://www.govtrack.us/congress/bills/84/hr7763/text’

[4]https://www.congress.gov/bill/100th-congress/house-bill/442/text

[5]https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about

[6]https://www.oyez.org/issues/155

[7]U.S. Constitution, I,9,3.

PoliceSheep

04.15.2021 02:03PM

Con

Forfeited

fauxlaw

05.06.2021 03:43PM

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@Barney

Thank you for voting. Much appreciated

fauxlaw

05.03.2021 03:24PM

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@Barney

Yeah, if anyone bothers to vote. Since I lead the pack, at least in the top ten, in no-vote ties [4 of my 10 - and I wish like hell the last update to voting policy took care of that], I'm not just a little concerned.

Barney

05.03.2021 01:46PM

At a casual glance, that forfeiture almost certainly seals it.

fauxlaw

04.02.2021 03:56PM

Pls note that my R2, cited source [8] was deleted, along with its commentary due to word-count restriction, thus the gap between [7] and [9].

fauxlaw

04.01.2021 02:19AM

Notice: As an effort to improve reader reference to my arguments in this and future rounds of this debate, and in subsequent debates, I am using a continuous running count of argument/rebuttal/defense sections by roman numerals from round to round, to wit: R1 contained arguments I, II. R2 commences with III, IV, and so on, through all succeeding rounds in order avoid repeating numbers in rounds. Formerly, I started each round with I, then II, etc. I'm hoping a continuous run of numbering will help keep consistency and flow of argument.

fauxlaw

03.21.2021 12:09AM

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@Theweakeredge

Correct. CANNOT, as said. Should not does not apply. Will not carries a similar, but not identical weight as cannot, but I chose cannot as the decisive alternative. Yes, I understand there is wiggle room between can and will, or the negation of same, but the wiggle room is not acceptable for this debate. PM for further explanation if you're interested in taking the debate.

Theweakeredge

03.20.2021 11:49PM

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@fauxlaw

I just want to be crystal clear - you mean CAN NOT not SHOULD NOT - or WILL NOT - CAN NOT? Because if so I think I have a guess at your aim here - and woo boy - I'm good right now. Perhaps if nobody else accepts the debate I'll give it a shot - we'll see.

fauxlaw

03.20.2021 11:14PM

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@gugigor

It is sufficiently descriptive. Do you want that I give away my arguments? Sorry, no bite on that hook. I will allow that this is not politics, but law. As there is no categorical discretion dedicated to law, politics must serve as the basis of topical discussion.

gugigor

03.20.2021 10:27PM

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@fauxlaw

cannot merely? Then what is your plan? Can you give more detail?

Barney

05.06.2021 12:08PM

Criterion

Pro

Tie

Con

Points

Better arguments

3 point(s)

Better sources

2 point(s)

Better legibility

1 point(s)

Better conduct

1 point(s)

Reason:

Arguments: Pro
In short, too complex and requiring constitutional changes accepted by the states before it could be attempted.

Sources: Tie
They both appear to have done well on their research.

Legibility: Tie
No issues.

Conduct: Tie
Both stayed professional.

R1:
Pro builds a good case for the constitution prohibiting it ("Ex post facto"), and how muddled it all is anyway with Britain. Additionally to attempt it they would have to change the constitution (very hard).
Con argues that Japanese americans sent to concentration camps were given reparations, as were Alaskan Natives for their maltreatment. He further argues that the supreme court would decide, but makes an appeal that it would be justifiable due to historically suffered disadvantages.

R2:
Pro talks about intergenerational trauma, and ties it into reparations at the cost to the current generation (including immigrants from after slavery) being unwarranted for non-systemic issues. He also rebuts issues of scope creep (even making a point of property returns/replacements to still living people within the cases raised).
Con attacks the Ex post facto as not applying to the type of law to be imposed. And that Bill of Attainder would only play into it if it was individuals being sued. He backtracks his evidence as something to show a theme rather than it being directly comparable.

R3:
Pro defends his opening with a good quote from a similar case "‘Laws made to punish actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust. . . .’" This is slightly pre-defended with talk of the point of reparations not being to punish anyone, but that defense is likewise preempted with the talk of newly naturalized citizens who would then have to pay. Finally pro attacks more on the scope of cases in relation to this issue, and reiterates his main points from earlier.
Con drops (while it makes the decision easy, they were already struggling).