IV. Slavery as a Taking

A. Purpose of the Takings (Just Compensation) Clause
It has long been difficult for constitutional lawyers to distinguish between valid exercises of "police power," valid even though a person may be less well off than before the regulation, and governmental "takings" that are not permitted unless monetary compensation is paid. A related problem, albeit one not discussed in this Note, is how much compensation is due when property is taken. Despite its complexity, the Fifth Amendment has become the central constitutional restriction on government confiscation of private property and nearly all state constitutions contain similar language.

According to one preeminent legal scholar, there are at least five recognized compensable takings: 1) any physical occupation of real property, even if for only a limited period; 2) regulations that deny the owner all economically beneficial use of the property; 3) conditional approval of improvement to property, where the conditions are unrelated to the development or when the conditions for approval relate to the development but are disproportionate to the scope or degree of the problems any development could cause; 4) expropriation of cash; and 5) regulations that greatly impact the economic situation of the owner, the regulation's consistency with reasonable investment-backed expectations, and the general character of the government's action.

There are a number of theories regarding the purpose of the Takings Clause. The two theories discussed here qualify slavery as a taking, mandating compensation.

1. Frank Michelman
Frank Michelman has argued that the Takings Clause offers a way to adjust transactions that increase societal wealth but decrease the wealth of particular parties, creating transactions that benefit all parties. He argues that takings should be evaluated under a utility or a fairness analysis, both of which support compensation for slavery.

a. Fairness

Compensation for the involuntary transfer of property is appropriate if redistribution is unfair. Michelman suggests that compensation is required to achieve fairness under certain circumstances, including ones in which one party suffers an unusually great harm. This analysis dictates that compensation is appropriate where a societal taking has unequally impaired liberties, where harm is disproportionately focused on certain individuals or where "visible reciprocities of burden and benefit" are not present.

Slavery meets each of these compensable alternatives. The taking of the slaves' property interest in their self-ownership concentrated harm (loss of identity, decision-making power, lack of physical mobility) on certain individuals (African-Americans) with no reciprocity (uncompensated labor). The benefits accrued affected only one group (the slave owner and arguably, Whites generally), while the other suffered immense harms. The result has been long term inequities, including the impairment of liberties with respect to education, property ownership, and employment opportunities. The fairness analysis therefore provides a takings claim for slavery.

b. Utility
Under Michelman's utilitarian analysis, compensation is appropriate where the negative effect of an action is greater than the cost of compensation. Michelman argues that it is just to compensate victims because the risk of exploitation by the majority creates a greater disincentive for minority parties to contribute to society. This compensation is due where societal actions cause disproportionate burdens to fall on particular parties, where actions tend to channel benefits and burdens to different groups, and where there has been capricious behavior on the part of the majority.

Slaves, in the sense that they were a powerless minority, had their self-ownership confiscated by the exploitive majority. This confiscation of property caused a disproportionate burden to fall on this particular group of people. Once confiscated, this property created benefits to one group, the slave traders and slave owners, while harming another group. The fact that the slaves were grouped together and identified as aninferior race is evidence of the majority's capricious behavior. The utilitarian analysis, like the fairness analysis, also provides for takings compensation for slavery.

2. Richard Epstein

Richard Epstein asserts that the Takings Clause exists "to guarantee a proportionate distribution of gains among the parties from whom the government took private property." Like any private actor, the government should be held accountable for the harms it inflicts on parties for its own benefit. Epstein further argues that the greater the number of takings, the greater the wrong.

According to Epstein's approach, the taking of slaves' property interest in their self-ownership is a compensable taking. If the Takings Clause was designed to equitably distribute gains from confiscated property, then slaves should receive compensation to offset the fact they received none of these gains. The result of this confiscation culminated in a taking. Epstein's belief that the greater the taking, the greater the wrong, suggests that slavery ought to be compensable, considering the mass confiscation of property.

B. Takings Clause Violations

The Takings Clause states, "nor shall private property be taken for public use, without just compensation." A Takings Clause violation claim has four prerequisites: 1) private property must exist; 2) this property must be taken by the government; 3) the taking must be for public use; and 4) the original owner must not have been compensated for the taking.

Elements one and two will be discussed in detail below. Elements three and four however, are not discussed as thoroughly since their existence is of little doubt. Clearly the reason for the utilization of slaves was for the performance of manual labor. This labor ultimately made it possible for the public to use raw materials that otherwise would not have been produced as quickly, abundantly, or as cheaply as they were as a result of this "peculiar institution." The public reaped the benefits of slavery in their daily lives. The results of slavery manifested themselves in cheaper prices at the market for individuals and an increased availability in raw materials that allowed Southern planters to expand their market beyond that of the industrial North, and into Europe. In addition, the returns allowed plantation owners to continue to reinvest and expand their production capabilities.

Economic studies have demonstrated that the Southern economy was driven by slave labor; one estimate places the slave contribution to the U.S. economy at $40 million. This sum is in addition to the revenue raised as a result of the federal and state property taxes on the slaves themselves. Indeed, one source states that between the colonial era and the Civil War, slave taxes raised more revenue than any other source.

Just as clearly, slaves were not compensated for the taking of their self-ownership. Although there were promises of "Forty Acres and a Mule" during the Civil War, by and large, the land and beasts never materialized. Even if they had, it was for payment for the slaves' loyalty and participation in military regiments, not for the illegal taking of their property. Further, although it may be tempting for opponents of reparations to argue that emancipation was in and of itself compensation, restoration of the taken property is insufficient compensation. After all, what was taken cannot be given back with the owner restored as new, as is evident by both the blatant and subtle racism directed toward African-Americans today. The taking continued for too long, resulting in effects too devastating to ignore.

Physical and regulatory takings can be permanent or temporary, but courts have been reticent to find a temporary invasion of property to be a taking. They have nevertheless, even if the taking has been only partial, allowed compensation. Permanency, in terms of the length the government has occupied the property, does not mean literally forever in the sense that most people would understand it. What has been permanently taken is not the property itself, but the value of the property for the term of the invasion. In at least one case, the Supreme Court has found the length of the occupancy to be irrelevant if the purpose of the taking was for the benefit of the owners. In YMCA v. United States, fairness and justice did not require compensation. This is not the case regarding the physical, regulatory, and derivative takings from African-Americans throughout early U.S. history. The result of this confiscation culminated in a taking. Epstein's belief that the greater the taking, the greater the wrong, suggests that slavery ought to be compensable, considering the mass confiscation of property.

1. Physical Taking

In first year property law courses, law students are instructed to think of property as a "bundle of sticks." Physical takings involve the appropriation of the title to property of one or more of these sticks that comprise the property owner's interest. Governmental imposition of an easement will trigger the Takings Clause, for example. Title remains with the owner, but the government has nonetheless taken a valuable stick from the bundle.

The property right of self-ownership is inalienable. Unlike other property rights, it may not be freely traded, bought, sold, or otherwise treated as a transferable commodity. To be able to do so would undermine personal identity and violate our deepest understanding of what it means to be human. This inalienable nature is not the same as a person's property right in removed body parts, deemed by at least one court to be an alienable property right.

One obstacle to recovering for a taking is the possibility that slavery was not an institution involving property at all, but was merely a system of contractual agreements between employers and employees. For this to be true, however, slavery would have to be the same, or at the very least, similar to indentured servitude or peonage.

However, unlike slavery, peonage and indentured servitude involve rights enforceable against specific persons. These rights have traditionally been associated with contracts. Indentured servants obligate themselves to another person for a specified length of time. The master's rights of enforcement were against the person contractually subject to the obligation. The relationship was often defined based on a debt owed.

Likewise, peons were subject to contractual obligations. No such contract existed between slaves and slave owners. The slaves' existence was solely at the mercy of the owner. History explains that slave owners dictated the amount and character of the slaves' food, clothing, and housing. They decided whether the slaves learned to read and write, were permitted to marry, and the conditions of their "employment"-whether they were to be a field or house slave. Slave owners, as a result of the absence of positive law prohibiting the murder of slaves, quite literally held the slaves' lives in their hands.

Slavery, unlike peonage, is a right enforceable against a large group of undetermined persons. These rights have been associated with property, not contracts. In fact, in most jurisdictions, slaves were prohibited from owning real property, entering into contracts, inheriting property, voting, marrying, or obtaining an education since all of these required signatures and the ability to direct one's destiny. Not even the inclusion of slaves into the political representation debate can change the fact that slaves were property.

A second obstacle is the court system itself. Courts have clung to the idea that the government is required to pay compensation only when it has confiscated the entire bundle of sticks. This narrow interpretation would allow the government to regulate away nearly all individual property rights, without having an obligation to compensate the owner, even though the owner now possesses only an empty title. This cannot be consistent with the core purpose of the Just Compensation Clause. In fact, the principles behind the Clause suggest that if property is a bundle of sticks, then taking merely one stick lessens the property's value and something has been taken from the owner. The inquiry that remains is not whether the taker owes the owner for his loss, but how much the owner is owed for the appropriation of his property. In regard to slavery, the federal government appropriated the entire bundle, completely extinguishing the slaves' property interests.

In addition, given the inalienable nature of the property right, and the purpose of the Just Compensation Clause, it is unlikely that title to the slaves' property right of self-ownership was transferred to the government. Since the interest in the property was not voluntarily transferred, yet clearly was taken, a taking resulted: the government confiscated all of the sticks including life, liberty, and the benefit of one's labor.

2. Regulatory Taking

The regulatory takings doctrine allows compensation for regulations that deprive an owner of a substantial amount of property value. First recognized in Pennsylvania Coal Co. v. Mahon, compensatory recovery requires a regulation that affects property interests. Until Mahon, federal courts only recognized physical takings claims. The Mahon Court restates the general rule that although property may be regulated by the government, regulations that go "too far" will be deemed a compensable taking. The focus on going "too far" indicates the Court's intent to recognize partial takings as opposed to complete appropriation. The Court's effort to expand takings goes beyond that intended by the Framers. The drafters of the Bill of Rights intended the Takings Clause to be limited only to the government's physical seizure of private property. The Court has admitted as much, but has nonetheless continued to entertain regulatory takings claims.

The Supreme Court more clearly defined the issue in the Penn Central Transportation Co. v. NYC test as it attempted to distinguish partial takings from government action that confiscates private property in its entirety. The factors required to establish a complete taking are more difficult to overcome given that the potential award will be more costly than the award such a plaintiff could receive under a partial takings claim.

In allowing for compensation according to the Penn Central analysis, the Court created a three part test for measuring regulatory takings: 1) the economic impact of the regulation on the claimant; 2) the extent to which the regulation has interfered with distinct, investment-backed expectations; and 3) the character of the governmental action. The regulatory framework that facilitated slavery is one that qualifies as going too far, fulfilling the requirements of the Mahon test, and producing a partial taking. The government's actions, however, also fulfill the requirements of the Penn Central test, producing a complete taking of the slaves' property interest in their self-ownership.

Considering that slaves never have been compensated for the loss of their property, the economic impact of the taking was and is currently devastating. One can only imagine if a slave had been paid a mere fraction of the value of her labor, it may have been feasible to buy freedom or at least pay a slave owner to prevent the owner from selling members of a family. Likewise, if slaves had been compensated and been able to save their money, passing it from generation to generation to ensure the survival and well being of their family members as Whites did, it is possible that modern vestiges of slavery, discrimination, and cultural, political and economic destruction of African-Americans at large, may have been prevented.

The government's activities speak directly to the character of the government's action throughout the time period. In Penn Central, the Court noted that in deciding whether a particular governmental action has affected a taking, courts focus both on the character of the action and on the nature and extent of the interference. From the act of capturing and shipping the slaves to the daily control of their activities and the restriction of their rights, the federal government paid only lip-service to the treaties and laws that made the transportation of slaves from Africa illegal. In fact, only the British committed substantial naval and political resources to stamping out the illegal trade. The United States did little and, until the Civil War, actually obstructed the suppression of the slave trade by refusing to allow the British to board and search American ships. Slave traders, whether American or not, routinely used the American flag as a cover for their crimes.

The federal government's conduct toward African-Americans constituted extreme behavior that sanctioned the enslavement of a race. The beatings and lynchings, and threats of being beaten and lynched, were prevalent throughout the slave era. These acts caused irreparable physical harm and imminent apprehension of bodily harm and death. In addition, the government perpetrated repeated acts of false imprisonment when it intended to and did confine the slaves within fixed boundaries, directly confining them while they were conscious of the confinement and were harmed by it. The beginning of this imprisonment began with the initial capture and transportation of Africans to the United States. This control over the slaves' movement continued throughout plantation life.

This manner of treatment is facially outrageous, but even more so beneath the surface because the government knew, or should have known, that this treatment would cripple African-Americans socially and politically thereafter for generations to come. Even after emancipation the federal government allowed the states and private individuals to make concerted efforts to deprive African-Americans of opportunities relating to education, employment, voting,property ownership, and personal mobility. This treatment was intended to, and had the ultimate effect of, subordinating African-Americans to permanent second-class citizenship. African-Americans have been indoctrinated with the belief that their culture, their religion, their language, their political influence, and their basic existence are inferior to that of Whites. The U.S. government created and continually perpetrated the feeling of hopelessness.

Reconstruction was the government's first attempt to correct the wrongs it actively participated in creating and maintaining. This short-lived, feeble effort was replaced with decades of "separate but equal" facilities and Jim Crow laws, effectively destroying any benefits of Reconstruction. Affirmative action, a system of being able to consider race in areas such as higher education and job opportunities, took the place of legislated discrimination, but has run into problems as well. Regardless of whether there were successful attempts to level the playing field, they cannot substitute for the property already taken.

In his dissent in San Diego Gas & Electric Co., Justice Brennan refuted the proposition that once a regulatory taking has been established, mere invalidation or amendment of the regulation is a constitutionally sufficient remedy. Recognizing that the concept of just compensation is to place the property owner in the same position monetarily as he would have occupied if the property had not been taken, Justice Brennan declared that invalidation or amendment of the regulation, unaccompanied by payment of damages, does not compensate the owner for any economic loss suffered during the time the invalid regulation was in effect. He proposed that once a court finds that a regulation has effected a taking, the government entity must pay just compensation for the period commencing on the date the regulation first effected the taking and ending on the date the government entity chooses to rescind or amend the regulation.

The government-sponsored regulations destroyed all value that the slaves originally held in their property; the magnitude of the taking and the involuntary transfer of the ownership right to another rendered self-ownership worthless by removing all beneficial economic use.

3. Derivative Taking

Though the Supreme Court has never endorsed this particular theory, a derivative taking occurs whenever a partial or complete taking diminishes the value of surrounding property. Derivative takings allow third parties, not directly affected by the regulation but harmed by the original taking nonetheless, to recover damages. A derivative taking, a hybrid of both the regulatory and physical takings, results from either a physical or regulatory taking. Proponents of derivative takings argue that a policy of not compensating damage to third parties cannot be justified on either efficiency or fairness grounds. Courts however, have consistently rejected derivative takings claims, despite the fact that the federal and state governments would be encouraged to exercise what is in essence eminent domain power only when such use would enhance social utility.

In the case of slavery, the taking has led to institutionalized racism, causing harm to subsequent generations of African-Americans. According to recent census figures, 24.3% of Blacks lived in poverty in 2003, compared with 10.3% of Whites. Education statistics show that where only 78.7% of Blacks have a high school diploma, 88.7% of Whites have obtained this level of minimal achievement. Likewise, only 17% of Blacks have obtained a bachelor's degree or more, compared to 29.4% of Whites. Black per-capita income in 2001 was a mere $14,953 compared with $24,127 for Whites. The percent of Blacks below the poverty level has more than doubled that of Whites for the last 26 years. As would be expected given the previous numbers, the percentage of unemployed Blacks more than doubles that of Whites. More telling, however, is the difference between those who do and do not own homes. In 2002, 47.3% of Blacks owned their own homes. This does not begin to compare to the 74.5% of Whites who owned their own homes. Yet more disturbing are the incarceration statistics. As of the year 2000, there were only 132 more Black males in college than in prison. While the number of Black males attending college has risen only slightly, the number going to prison has increased dramatically over the years. In addition, Black males are more than six times more likely than White males to go to prison. The Department of Justice notes that in 2000, Blacks had a 18.6% chance of going to prison, compared with a 3.4% chance for Whites.

Blacks trail Whites with regard to every social yardstick including education, life expectancy, income, and homeownership. These disparities are linked to the legacy of slavery. It is of no consequence to argue which came first, slavery or racism. The result has been the reinforced presumption that African-Americans are inferior, unintelligent, and prone to violence and crime. These disparities stem from the original taking.