Reparations [7]: Global Accountability – Part 2

Proposals for reparations for American slavery often focus on centuries-old circumstances, legal issues, and cultural attitudes, proposing compensation to the descendants of slaves for ancestral harm suffered. This view treats slavery as something that ended at the Civil War and ignores its de facto persistence for another century until the 1960’s Civil Rights movement and for yet another 60 years of normalized cultural racism since then. Further, it misses the opportunity that reparations offer:  a chance to cleanse the past and create an inspired future. The global community offers a framework for this kind of opportunity — international human rights law, but the USA has long resisted global accountability, asserting instead its “rugged individualism” version of national sovereignty.

Rugged Individualism Sovereignty

Herbert Hoover introduced the term “rugged individualism” into the American lexicon in a 1928 campaign speech. [1] He began by acknowledging the need for federal control of the WWI mobilization, but rejected it as a standard for going forward, demonizing it as “European” and advocating a return to the Republican Party’s decentralized agenda.

“[At the end of World War I], the most vital of issues both in our own country and around the world was whether government should continue their wartime ownership and operation of… production and distribution. We were challenged with a… choice between the American system of rugged individualism and a European philosophy of diametrically opposed doctrines ­ doctrines of paternalism and state socialism. The acceptance of these ideas would have meant the destruction of self-government through centralization… [and] the undermining of the individual initiative and enterprise through which our people have grown to unparalleled greatness.”[2]

Hoover’s perspective was untimely and off the mark. Rugged individualism didn’t pull the nation out of the 1930’s Great Depression. For that, the country needed another wave of massive federal investment in the New Deal, followed by another centralized war effort. After the second world war, federal guidance shepherded three decades of post-war recovery, but in time the nation returned to rugged individualism as politicians continued to demonize democratic socialism until it became synonymous with Soviet Communism — a characterization both intellectually and historically false.

Sovereignty Without Accountability

Rugged individualism applied to the issue of national sovereignty results in a lack of accountability which 20th Century political theorist Hannah Arendt identified as the identifying hallmark of totalitarianism, since it results in “the possession of all instruments of governmental power and violence in one country.”[3]

The historic roots of this outlook lie in a Biblical hierarchical worldview in which God reigns uncontested at the top, and national charters derive directly from the supreme divine source. God enjoys absolute sovereignty unaccountable to anyone for anything, and is therefore free to enforce divine will by any means, including holy war, genocide, temporal chastisement, and eternal torture. The derivative sovereignty of nations is similarly unrestrained. In this scheme, “the divine right of kings” protected the English monarchs with its declaration that “the king can do no wrong,” and the concept was imported into the Colonies as ”sovereign immunity,” which protects state and federal officials. The divine right of kings and sovereign immunity, like God’s rule, are therefore ultimately totalitarian.

“Many of us see the term [totalitarianism] primarily as polemical, used more to discredit governments than to offer meaningful analyses of them. Scholars often prefer the much broader term authoritarianism, which denotes any form of government that concentrates political power in the hands of an unaccountable elite.”[4]

International Accountability – The Nuremberg Trials

The Nazis in control of Germany operated under their own totalitarian version of national sovereignty, possessing “all instruments of governmental power and violence” which concentrated “political power in the hands of an unaccountable elite.” To hold them accountable after the end of the war, the victorious allies convened the Nuremberg Trials under the authority of a unilaterally-imposed instrument known as the London Charter.[5] The resulting trials defied traditional notions of national sovereignty, as described in a 1946 article in The Atlantic, written by a Federal judge.

“The Nuremberg War Trial has a strong claim to be considered the most significant as well as the most debatable event since the conclusion of hostilities. To those who support the trial it promises the first effective recognition of a world law for the punishment of malefactors who start wars or conduct them in bestial fashion. To the adverse critics the trial appears in many aspects a negation of principles which they regard as the heart of any system of justice under law.

“This sharp division of opinion has not been fully aired largely because it relates to an issue of foreign policy upon which this nation has already acted and on which debate may seem useless or, worse, merely to impair this country’s prestige and power abroad. Moreover, to the casual newspaper reader the long-range implications of the trial are not obvious. He sees most clearly that there are in the dock a score of widely known men who plainly deserve punishment. And he is pleased to note that four victorious nations, who have not been unanimous on all post-war questions, have, by a miracle of administrative skill, united in a proceeding that is overcoming the obstacles of varied languages, professional habits, and legal traditions. But the more profound observer is aware that the foundations of the Nuremberg trial may mark a watershed of modern law.”[6]

The Nuremberg Trials thus initiated an unprecedented accountability for transnational crimes:

“There were many legal and procedural difficulties to overcome in setting up the Nuremberg trials. First, there was no precedent for an international trial of war criminals. There were earlier instances of prosecution for war crimes, such as the execution of Confederate army officer Henry Wirz (1823-65) for his maltreatment of Union prisoners of war during the American Civil War (1861-65); and the courts-martial held by Turkey in 1919-20 to punish those responsible for the Armenian genocide of 1915-16. However, these were trials conducted according to the laws of a single nation rather than, as in the case of the Nuremberg trials, a group of four powers (France, Britain, the Soviet Union and the U.S.) with different legal traditions and practices.

“The Allies eventually established the laws and procedures for the Nuremberg trials with the London Charter of the International Military Tribunal (IMT), issued on August 8, 1945. Among other things, the charter defined three categories of crimes: crimes against peace (including planning, preparing, starting or waging wars of aggression or wars in violation of international agreements), war crimes (including violations of customs or laws of war, including improper treatment of civilians and prisoners of war) and crimes against humanity (including murder, enslavement or deportation of civilians or persecution on political, religious or racial grounds). It was determined that civilian officials as well as military officers could be accused of war crimes.”[7]

“I was only following orders.”

National policy is carried out by individuals, and the Nuremberg Trials eliminated the defense that the accused were merely following the orders of the state. This was an unprecedented evidentiary innovation that, like the London Charter, defied historical notions of state sovereignty, particularly with respect to the actions of military personnel.

“In connection with war crimes of this sort there is only one question of law worth discussing here: Is it a defense to a soldier or civilian defendant that he acted under the order of a superior?

“The defense of superior orders is, upon the authorities, an open question. Without going into details, it may be said that superior orders have never been recognized as a complete defense by German, Russian, or French law, and that they have not been so recognized by civilian courts in the United States or the British Commonwealth of Nations, but they tend to be taken as a complete excuse by Anglo-American military manuals. In this state of the authorities, if the International Military Tribunal in connection with a charge of a war crime refuses to recognize superior orders as a defense, it will not be making a retroactive determination or applying an ex post facto law. It will be merely settling an open question of law as every court frequently does.”[8]

“Slavery was legal at the time” and the International Statute of Limitations for crimes against humanity.

A corollary of the “only following orders” defense is the assertion that slavery was legal at the time. General Lee’s surrender at Appomattox[9] presented a question of lingering guilt to former Confederates that was quickly resolved by Presidential pardons.[10]

International human rights law presents a similar problem. The Rome Statute was created by treaty, to be enforced by the International Criminal Court, effective in 2002.[11] It established four core transnational crimes similar to those applied at the Nuremberg Trials: genocide, crimes against humanity, war crimes, and crimes of aggression. “Enslavement” is included in the Rome Statute’s list of crimes against humanity, [12] and there is no statute of limitations. Therefore it is no defense under international law that American slavery was the law of the times.

“Under international law, crimes against humanity, war crimes, and genocide have no statute of limitations, according to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity and Article 29 of the Rome Statute of the International Criminal Court.”[13]

“In the international arena, the non-applicability of statutory limitations pertains to crimes that are extremely difficult to prosecute immediately after they were committed. This is particularly true of war crimes, crimes against humanity, or genocide. Given the context in which such crimes tend to be carried out, it is often necessary to wait for a change in the situation—an end to the conflict or a change in regime—for it to become possible, in practice, to initiate judicial proceedings. The non-applicability of statutory limitations prevents the most serious crimes, and those most difficult to prosecute, from going unpunished.”[14]

As long as a nation refuses the jurisdiction of international law, and absent an extraordinary unilateral enforcement such as the London Charter, a nation can remain shielded by its own self-declared sovereignty. And since there is no international statute of limitations, the nation has every incentive to keep it that way. No surprise, then, that the United States quickly repudiated the International Criminal Court immediately after the effective date of the Rome Statute. The USA’s main concern:  to protect its military personnel from guilt associated with following orders.

“One month after the International Criminal Court (ICC) officially came into existence on July 1, 2002, the President signed the American Servicemembers’ Protection Act (ASPA), which limits US government support and assistance to the ICC; curtails certain military assistance to many countries that have ratified the Rome Statute establishing the ICC; regulates US participation in United Nations (UN) peacekeeping missions commenced after July 1, 2003; and, most controversially among European allies, authorizes the President to use ‘all means necessary and appropriate to bring about the release’ of certain US and allied persons who may be detained or tried by the ICC.”[15]

The same issue was behind the Trump Administration’s recent ICC sanctions:

“On Thursday, the president followed through on the longstanding threats by his foreign policy team, issuing new sanctions against the ICC over its provocative effort to investigate and prosecute American military, intelligence, and perhaps even former political officials for alleged war crimes in Afghanistan.”[16]

Reparations for American Slavery Under International Law

A recent The Wall Street Journal editorial argued for slavery reparations under international law.

“The prohibition against slavery has now achieved jus cogens—a peremptory norm, from which no derogation is permitted. This is the highest legal status in international law, and it means retroactive responsibility may be imposed on those who violated that norm. This is how the Nazis were prosecuted at Nuremberg: retroactively—for the jus cogens of crimes against humanity. On that basis alone, the U.S. may be held legally responsible for the historical enslavement of Africans and the consequences for their descendants.”[17]

The editorial asserts without qualification that “the U.S. is bound by international law and must be guided by the precedent set by many other countries that have recognized reparations as a means to redress injustice.” But as we’ve seen, even if the USA is accountable for slavery and there is no statute of limitations under international law, the nation can continue to shield itself from global accountability by asserting its rugged individualism sovereignty.

Interference in “Internal Affairs.”

The USA routinely vilifies the world’s dictatorial strongmen for telling us (and the rest of the world) to stop meddling in their internal affairs, failing to notice that this attitude matches our own concept of national sovereignty.

A Google search of “interference with internal affairs” turns up a fascinating look at the futility of international diplomacy on this topic. Invariably, one nation’s “interference in internal affiars” is another’s “crime of aggression.” The U.N.’s Charter tried to find a way through this conflict, but the result raises more questions than answers. Here’s a sample:

“To what extent does the UN Charter permit legitimate violation of the sovereignty of another state, in the absence of international armed conflict or acts of national self defense? Should moral imperatives override legal authority? Even assuming the mandate was soundly based in law, was it breached by the coalition and NATO in the manner of its execution?  While the mandated authority to protect civilians was interpreted most liberally, some might say it was used as a smoke screen for an intent which was subsequently revealed, that of regime change, for which there is no lawful authority under the Charter.”[18]

The USA bypasses this legal sparring by resisting international interference. The Trump administration’s recent sanctions against the ICC replay this familiar theme, as evidenced by editorial commentary from his media supporters:

“In essence, the ICC is the plaything of the European left, post-sovereign technocrats, and progressive legal elites — one-worlders who won’t provide for their own security and dream up schemes to delegitimize actions that sovereign states, especially the United States, take in their national interests.”[19]

“This sanctions regime is fundamentally misguided. It will do little to stop the ICC’s investigation, erodes the U.S. longstanding commitment to human rights and the rule of law, and may undermine one of the most powerful tools in the U.S. foreign policy arsenal — economic sanctions.”[20]

The counterpoint to this commentary is the recognition of the USA’s historical preference for unilateralism.

“Last week, U.S. President Donald Trump signed an executive order imposing sanctions on several individuals associated with the International Criminal Court (ICC). The order is the latest salvo in an ongoing battle against the ICC, which the Trump administration has long sought to undermine in order to avoid accountability for itself and its allies. The move is also part of a broader disengagement with the multilateral system.”[21]

This political preference for “disengagement with the multilateral system” did not deter Trump’s recent call for the U.N. to impose global accountability against China with respect to the pandemic.[22] Chinese leader Xi Jinping responded by citing the USA’s historic unilateralism and isolationism:

“We will continue to narrow differences and resolve disputes with others through dialogue and negotiation. We will not seek to develop only ourselves or engage in zero sum game. Unilateralism is dead.”

“Burying one’s head in the sand like an ostrich in the face of economic globalization, or trying to fight it with Don Quixote’s lance, goes against the trend of history. Let this be clear: the world will never return to isolation.”[23]

Aside from a history of slavery and following orders in Afghanistan, the USA has further issues with human rights law, as evidenced by recent accusations from the last-surviving Nuremberg Trials prosecutor. We’ll look at that next time.

Also coming up, we’ll also look beyond the legal issues of global accountability to the non-legal case for reparations and the opportunity they offer for a national reset.


[1] World History Facts, American “Individualism” Is Shallow and Immoral, Medium Dialogues and Discourse (Sept. 15, 2020).

[2] Full text at Digital History.

[3] Arendt, Hannah, The Origins of Totalitarianism (1951)

[4] Huneke, Samuel Clowes, An End to Totalitarianism, Boston Review (April 16, 2020). Samuel Clowes Huneke  “is an assistant professor of modern German history at George Mason University. His research focuses on Germany after World War II….”

[5] Wikipedia – Nuremberg Charter.

[6] Wyzanski, Charles, Nuremberg: A Fair Trial? A Dangerous Precedent, The Atlantic (April 1946) 

[7] Nuremberg Trials, History.com (updated June 7, 2019, original Jan. 29, 2010)

[8] Wyzankski, op cit.

[9] History.com – Robert E. Lee Surrenders.

[10] Wikipedia – Pardons for Ex-Confederates.

[11] Dag Hammarskjöld Library, Jan 8, 2020. See also Wikipedia – Rome Statute International Criminal Court.

[12] The Rome Statute, Article 7.

[14] The Practical Guide to Humanitarian Law, Médecins Sans Frontières (Doctors Without Borders).

[15] US Policy Regarding the International Criminal Court (ICC), Congressional Research Service (July 9, 2002 – August 29, 2006).

[16] International Court V. Trump: A Case Of Politics, Not Justice, The Hill (June 15, 2020)

[17] International Law Demands Reparations for American Slavery, The Wall Street Journal (June 9, 2020).

[18] Paphita, Anthony, Intervention in the Internal Affairs of States, E-International Relations (Oct 25 2011).

[19] International Court V. Trump: A Case Of Politics, Not Justice, The Hill (June 15, 2020)

[20] The Danger Of Trump’s New Sanctions On The International Criminal Court And Human Rights Defenders, Brookings Institute (June 11 2020)

[21] Trump’s Chilling Blow To The ICC With International Criminal Court Sanctions, Foreign Policy (June 17, 2020)

[23] Trump Attacks China Over Covid ‘Plague’ As Xi Urges Collaboration In Virus Fight, The Guardian (Sept. 22, 2020).

Reparations [4]:  The Essential Doubt

And so you see I have come to doubt
All that I once held as true

I stand alone without beliefs
The only truth I know is you.

Kathy’s Song[1]
Paul Simon

We saw last time that the U.S. government could waive its legal defense of sovereign immunity to pave the way for slavery reparations. It would take more than a legal reckoning for that to happen. Law lies on the surface of society, readily visible, but it has deep roots in history and ideology, national identity and mission, values and beliefs, ways of looking at the world and how life works.[2] These ancient root systems invoke fierce allegiances deeply embedded in human psyche and culture. Because the legal doctrine of sovereign immunity is grounded in Biblical doctrine,[3] laying it aside requires doubt and dissent of the highest order – national treason and religious apostasy in a single act.

Doubt of that magnitude is rare beyond description but not without precedent. Consider, for example, Germany’s reparations for World War II, which required not only the international banishment of Nazism, but also the German people’s moral renunciation of Nazism’s philosophical and political roots stretching back to the 19th Century.[4]; In comparison, the USA”s roots of slavery (and hence racism) extend back to the earliest New World settlements, which imported English common law, including the divine right of kings and its nationalistic version, sovereign immunity. Renouncing the latter to pave the way for slavery reparations would require a similar American moral renunciation of centuries of related social, economic, and political ideology and set new terms for a post-racism American state.

That, in turn, would require a reckoning with the “first cause” roots of the divine right of kings and sovereign immunity.

The First Cause Roots of Sovereign Immunity

A “first cause” satisfies the human desire for life to make sense by assigning a cause to every effect. Trouble is, as you trace the cause and effect chain to its remotest origins, you eventually run out of causes, leaving you with only effects. That’s when a first cause comes to the rescue. A first cause has no prior cause – it is so primary that nothing came before it but everything came after it. Since knowledge can’t reach that far back, a first cause is a matter of belief:  you take it on faith, declare the beginning into existence, and go from there.

Western civilization’s worldview historically identified God as the ultimate first cause.

“The classic Christian formulation of this argument came from the medieval theologian St. Thomas Aquinas, who was influenced by the thought of the ancient Greek philosopher Aristotle. Aquinas argued that the observable order of causation is not self-explanatory. It can only be accounted for by the existence of a first cause; this first cause, however, must not be considered simply as the first in a series of continuing causes, but rather as first cause in the sense of being the cause for the whole series of observable causes.

“The 18th-century German philosopher Immanuel Kant rejected the argument from causality because, according to one of his central theses, causality cannot legitimately be applied beyond the realm of possible experience to a transcendent cause.

“Protestantism generally has rejected the validity of the first-cause argument; nevertheless, for most Christians it remains an article of faith that God is the first cause of all that exists. The person who conceives of God in this way is apt to look upon the observable world as contingent—i.e., as something that could not exist by itself.”[5]

God is the ultimate Sovereign from which all lesser sovereigns – the king, the national government — derive their existence and legitimacy. God’s first cause Sovereignty justifies God’s right to rule as God sees fit. The king and the state, having been set into place by God, derive a comparable right of domination from God. The king and the national government are to the people what God is to them.

The Divine Right of Kings

When kings ruled countries, their divine line of authority took legal form as the Divine Right of Kings.

“The divine right of kings, divine right, or God’s mandate is a political and religious doctrine of royal and political legitimacy. It stems from a specific metaphysical framework in which the king (or queen) is pre-selected as an heir prior to their birth. By pre-selecting the king’s physical manifestation, the governed populace actively (rather than merely passively) hands the metaphysical selection of the king’s soul – which will inhabit the body and thereby rule them – over to God. In this way, the ‘divine right’ originates as a metaphysical act of humility or submission towards the Godhead.

“Consequentially, it asserts that a monarch (e.g. a king) is subject to no earthly authority, deriving the right to rule directly from divine authority, like the monotheist will of God. The monarch is thus not subject to the will of his people, of the aristocracy, or of any other estate of the realm. It implies that only divine authority can judge an unjust monarch and that any attempt to depose, dethrone or restrict their powers runs contrary to God’s will and may constitute a sacrilegious act.”[6]

The Divine Right of Kings was a favorite doctrine of the first King James of England, who commissioned what would become the King James Version of the Bible partly in response to Puritan challenges to the Church of England’s doctrine of an ordained clergy that could trace its lineage to the original Apostles.

Divine right of kings, in European history, a political doctrine in defense of monarchical ‘absolutism,’ which asserted that kings derived their authority from God and could not therefore be held accountable for their actions by any earthly authority such as a parliament. Originating in Europe, the divine-right theory can be traced to the medieval conception of God’s award of temporal power to the political ruler, paralleling the award of spiritual power to the church. By the 16th and 17th centuries, however, the new national monarchs were asserting their authority in matters of both church and state. King James I of England (reigned 1603–25) was the foremost exponent of the divine right of king….”[7]

“While throughout much of world history, deified potentates have been the rule, in England, absolute monarchy never got a solid foothold, but there certainly was the attempt. Elements of British political theory and practice encouraged absolutism—the idea and practice that the king is the absolute law and that there is no appeal beyond him. Several movements and ideas hurried along the idea of absolute monarchy in England. One of those ideas was the divine right of kings,

“In England, the idea of the divine right of kings will enter England with James VI of Scotland who will come and rule over both England and Scotland as James I in 1603 and will commence the line of several ‘Stuart’ monarchs. James had definite ideas about his role as monarch, and those ideas included the divine right of kings. Here are just a few of James’ statements that reflect his view that he ruled by divine right:

      • Kings are like gods— “…kings are not only God’s lieutenants upon earth, and sit upon God’s throne, but even by God himself are called gods.”
      • Kings are not to be disputed— “… That as to dispute what God may do is blasphemy….so is it sedition in subjects to dispute what a king may do in the height of his power.”
      • Governing is the business of the king, not the business of the subjects— “you do not meddle with the main points of government; that is my craft . . . to meddle with that were to lesson me . . . I must not be taught my office.”
      • Kings govern by ancient rights that are his to claim— “I would not have you meddle with such ancient rights of mine as I have received from my predecessors . . . .”
      • Kings should not be bothered with requests to change settled law— “…I pray you beware to exhibit for grievance anything that is established by a settled law…”
      • Don’t make a request of a king if you are confident he will say “no.”— “… for it is an undutiful part in subjects to press their king, wherein they know beforehand he will refuse them.”

“James’ views sound egotistical to us today, but he was not the only one that held them. These views were held by others, even some philosophers. For example, the English philosopher Thomas Hobbes wrote a work called Leviathan in 1651 in which he said that men must surrender their rights to a sovereign in exchange for protection. While Hobbes’ was not promoting the divine right of kings per se, he was providing a philosophy to justify a very strong absolute ruler, the kind that the divine right of kings prescribes. Sir Robert Filmer was a facilitator of the divine right of kings and wrote a book about it called Patriarcha (1660) in which he said that the state is like a family and that the king is a father to his people. Filmer also says that the first king was Adam and that Adam’s sons rule the nations of the world today. So, the King of England would be considered the eldest son of Adam in England or the King of France would be Adam’s eldest son in France.”[8]

King James, Witch Hunter

King James had no impartial academic interest in a Bible translation that supported his divine right:  during his reign, the “Cradle King” accumulated a long list of covered offenses that included mass murder, torture, injustice, tracheary, cruelty, and misogyny.

“The witch-hunts that swept across Europe from 1450 to 1750 were among the most controversial and terrifying phenomena in history – holocausts of their times. Historians have long attempted to explain why and how they took such rapid and enduring hold in communities as disparate and distant from one another as Navarre and Copenhagen. They resulted in the trial of around 100,000 people (most of them women), a little under half of whom were 
put to death.

“One of the most active centres of witch-hunting was Scotland, where perhaps 
4,000 people were consigned to the flames – 
a striking number for such a small country, 
and more than double the execution rate in England. The ferocity of these persecutions can be attributed to the most notorious royal witch-hunter: King James VI of Scotland, who in 1603 became James I of England.

“Most of the suspects soon confessed – under torture – to concocting a host of bizarre and gruesome spells and rituals in order to whip up the storm.… James was so appalled when he heard such tales that he decided to personally superintend the interrogations… while the king looked on with ‘great delight’.

“James’s beliefs had a dangerously misogynistic core. He grew up to scorn – even revile – women. Though he was by no means alone in his view of the natural weakness and inferiority of women, his aversion towards them was unusually intense. He took every opportunity to propound the view that they were far more likely than men to succumb to witchcraft…. He would later commission a new version of the Bible in which all references to witches were rewritten in the female gender.

“Most witchcraft trials constituted grave miscarriages of justice…. If the actual facts of a case were unsatisfactory, or did not teach a clear enough moral lesson, then they were enhanced, added to or simply changed.”[9]

When the new King James Bible substantiated the King’s divine right to carry on these activities, and when the USA imported the king’s divine right into its legal system as sovereign immunity, both acknowledged God as the first cause of these legal doctrines. Like the King, the U.S. government also has a long list of covered offenses:  the treatment of slaves during the reign of legal slavery mirrors King James’ obsession with brutalizing, lynching, and murdering witches.

In the U.S., where a 2019 Gallup Poll found that 64% – 87% of Americans believe in God  (depending on how the question was asked), there remain many ”Christians [for whom] it remains an article of faith that God is the first cause of all that exists.[10] As a result, we see in the USA’s current social and political climate both explicit and implicit affirmation of the following Bible passages (which the online source appropriately expresses in the King James version) to substantiate the ability of national leaders to avoid accountability for acts of governance that sponsor this kind of horrifying treatment of citizens.[11]:

“Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.” Romans 13:1-5, KJV

“Lift not up your horn on high: speak not with a stiff neck. For promotion cometh neither from the east, nor from the west, nor from the south. But God is the judge: he putteth down one, and setteth up another.” Psalms 75:5-7, KJV

“Daniel answered and said, Blessed be the name of God for ever and ever: for wisdom and might are his: And he changeth the times and the seasons: he removeth kings, and setteth up kings: he giveth wisdom unto the wise, and knowledge to them that know understanding:” Daniel 2:20-21, KJV

“This matter is by the decree of the watchers, and the demand by the word of the holy ones: to the intent that the living may know that the most High ruleth in the kingdom of men, and giveth it to whomsoever he will, and setteth up over it the basest of men.” Daniel 4:17, KJV

“I have made the earth, the man and the beast that are upon the ground, by my great power and by my outstretched arm, and have given it unto whom it seemed meet unto me.” Jeremiah 27:5, KJV

“The king’s heart is in the hand of the LORD, as the rivers of water: he turneth it whithersoever he will.” Proverbs 21:1, KJV

“For rebellion is as the sin of witchcraft, and stubbornness is as iniquity and idolatry. Because thou hast rejected the word of the LORD, he hath also rejected thee from being king. And Saul said unto Samuel, I have sinned: for I have transgressed the commandment of the LORD, and thy words: because I feared the people, and obeyed their voice. Now therefore, I pray thee, pardon my sin, and turn again with me, that I may worship the LORD. And Samuel said unto Saul, I will not return with thee: for thou hast rejected the word of the LORD, and the LORD hath rejected thee from being king over Israel.” 1 Samuel 15:23-26, KJV

“And upon a set day Herod, arrayed in royal apparel, sat upon his throne, and made an oration unto them. And the people gave a shout, saying, It is the voice of a god, and not of a man. And immediately the angel of the Lord smote him, because he gave not God the glory: and he was eaten of worms, and gave up the ghost.” Acts 12:21-23, KJV

The Ultimate Focus of Doubt:  God

In “Abrahamic” cultures — Jewish, Muslim, and Christian – the Biblical God is the first cause of the divine right of kings and sovereign immunity. The full force of patriotic nationalism and religious zeal therefore originates with God – which explains why a surprising number of European nations had blasphemy laws on the books until not that long ago, and why some nations still do.[12]

“Blasphemy is the act of insulting or showing contempt or lack of reverence to a deity, or sacred objects, or toward something considered sacred or inviolable.”[13]

God, it seems, like kings and sovereign nations, has much to be excused from. Aside from the Biblical God’s sponsorship of war, genocide, mass murder, rape, torture, and brutality to humans and animals, a list of modern labels would include misogynist, homophobe, and xenophobe. But of course you don’t think that way if you’re a believer, because that would be blasphemy, often punishable by death, often after the infliction of the kind of cruel and unusual punishment reserved for the faithful and unfaithful alike. As for the latter, the Bible makes it a badge of honor for the faithful to suffer in the name of God:

“Some were tortured, refusing to accept release, so that they might rise again to a better life. Others suffered mocking and flogging, and even chains and imprisonment. They were stoned, they were sawn in two, they were killed with the sword. They went about in skins of sheep and goats, destitute, afflicted, mistreated—of whom the world was not worthy—wandering about in deserts and mountains, and in dens and caves of the earth. And all these, though commended through their faith, did not receive what was promised,” Hebrews 11:  35-39.ESV

Transformation Made Possible by Doubt

Nonbelievers not vexed with these kinds of rights of the sovereign and duties of the governed are free to doubt God’s first cause status and its derivative doctrines, laws, and policies. In the USA, doubt embraced on that level would open the door to any number of contrary beliefs – for example:

    • The state does not enjoy superior status — historically, legally, morally, or otherwise – that gives it a right to act without consequence.
    • The people governed are therefore not bound – theologically, morally, or otherwise – to submit to government that is not responsible for its actions.

Once you’re no longer worried about breaking faith with God as the first cause of your national institutional structure, a while new “social contract” (also discussed last time) between government and the people becomes possible – a contract that would, in effect, not be satisfied with paying only descendants of slaves “damages” for past harm, but would look to establish a fresh national vision of the duties of those who govern and the rights and freedoms of the governed. The result, it would seem, is the possibility of ending the USA’s institutionalized racism for good.

[1] Who was Paul Simon’s Kathy? And whatever happened to her? See this article from The Guardian.

[2] See the Belief Systems and Culture category of posts in my Iconoclast.blog.

[3] The Founding Myth: Why Christian Nationalism Is Un-American, Andrew L. Seidel (2019). Although the USA was not founded as a Christian nation, its core values and beliefs, like those of other Western countries, are Classical and Biblical in origin.

[4]  See Alpha History and The Mises Institute on the historical origins of Nazism.

[5]  Encyclopedia Britannica. See also New World Encyclopedia and the Stanford Dictionary of Philosophy.

[6] Wikipedia – The Divine Right of Kings.

[7] Encyclopedia Britannica and Wikipedia.. See also the New World Encyclopedia

[8] Owlcation

[9] Borman, Tracy, James VI And I: The King Who Hunted Witches,  History Extra (BBC Historical Magazine)  (March 27, 2019)

[10]  Encyclopedia Britannica. See also New World Encyclopedia and the Stanford Dictionary of Philosophy.

[11]Bill’s Bible Basics.”

[12]  Wikipedia – Blasphemy law.

[13]  Wikipedia – Blasphemy.

Reparations [3]: The Airtight Legal Case Against Them, and the Moonshot That Would Make Them Possible

“We choose to go to the Moon in this decade… not because [it is] easy, but because [it is] hard; because that goal will serve to organize and measure the best of our energies and skills because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one we intend to win….”

JFK, Sept. 12, 1962[1]

It was 1962 and the Cold War was raging. Soviet leader Nikita Khrushchev gave his “we will bury you” speech to 1956[2] and his shoe-banging speech in 1960[3]. Meanwhile, the competition had turned skyward[4], and the Soviet Union had gotten a leg up.

“History changed on October 4, 1957, when the Soviet Union successfully launched Sputnik I.

“That launch ushered in new political, military, technological, and scientific developments. While the Sputnik launch was a single event, it marked the start of the space age and the U.S.-U.S.S.R space race.

“As a technical achievement, Sputnik caught the world’s attention and the American public off-guard… the public feared that the Soviets’ ability to launch satellites also translated into the capability to launch ballistic missiles that could carry nuclear weapons from Europe to the U.S.”[5]

Astrophysicist Neil deGrasse Tyson compares Sputnik’s impact to the furor that ensured when, on January 11, 2007, China blasted one of its own weather satellites out of the sky:

“The hit put tens of thousands of long-lived fragments into high Earth orbit, adding to the already considerable dangers posed by debris previously generated by other countries, notably ours. China was roundly criticized by other spacefaring nations for making such a mess: twelve days later, its foreign ministry declared that the action ‘was not directed at any country and does not constitute a threat to any country.’

“Hmm. That’s a little like saying the Soviet Union’s launch of the world’s first satellite, Sputnik, in October 1957 was not a threat — even though Sputnik’s booster rocket was an intercontinental ballistic missile, even though Cold Warriors had been thirsting for a space-based reconnaissance vehicle since the end of World War II, even though postwar Soviet rocket research had been focusing on the delivery of a nuclear bomb across the Pacific, and even though Sputnik’s peacefully pulsing radio transmitter was sitting where a nuclear warhead would otherwise have been.”[6]

JFK announced the USA’s comeback with his “we choose to go to the moon” speech[7] to 40,000 people packed into the stadium at Rice University.[8] It was visionary in concept and triumphant in tone. The USA wasn’t going to go to the moon just because the Soviets were trying to beat us there, not just to win a celestial derby for a grand prize of bragging rights, and not just to gain the ultimate battlefield high ground. We were going to do it to further America’s mission of bringing peace to the nations, including the new frontier of outer space.

“Those who came before us made certain that this country rode the first waves of the industrial revolutions, the first waves of modern invention, and the first wave of nuclear power, and this generation does not intend to founder in the backwash of the coming age of space. We mean to be a part of it–we mean to lead it. For the eyes of the world now look into space, to the moon and to the planets beyond, and we have vowed that we shall not see it governed by a hostile flag of conquest, but by a banner of freedom and peace. We have vowed that we shall not see space filled with weapons of mass destruction, but with instruments of knowledge and understanding.

“Yet the vows of this Nation can only be fulfilled if we in this Nation are first, and, therefore, we intend to be first. In short, our leadership in science and in industry, our hopes for peace and security, our obligations to ourselves as well as others, all require us to make this effort, to solve these mysteries, to solve them for the good of all men, and to become the world’s leading space-faring nation.

“We set sail on this new sea because there is new knowledge to be gained, and new rights to be won, and they must be won and used for the progress of all people. For space science, like nuclear science and all technology, has no conscience of its own. Whether it will become a force for good or ill depends on man, and only if the United States occupies a position of pre-eminence can we help decide whether this new ocean will be a sea of peace or a new terrifying theater of war. I do not say the we should or will go unprotected against the hostile misuse of space any more than we go unprotected against the hostile use of land or sea, but I do say that space can be explored and mastered without feeding the fires of war, without repeating the mistakes that man has made in extending his writ around this globe of ours.

“There is no strife, no prejudice, no national conflict in outer space as yet. Its hazards are hostile to us all. Its conquest deserves the best of all mankind, and its opportunity for peaceful cooperation many never come again. But why, some say, the moon? Why choose this as our goal? And they may well ask why climb the highest mountain? Why, 35 years ago, fly the Atlantic? Why does Rice play Texas?

“We choose to go to the moon. We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.

“It is for these reasons that I regard the decision last year to shift our efforts in space from low to high gear as among the most important decisions that will be made during my incumbency in the office of the Presidency.”

The speech didn’t focus on the bad guys, didn’t accuse or blame them, didn’t spout media-speak about protecting our national interests. Instead, it was aspirational. It seized the high ground. We were going to the moon because that’s the kind of thing Americans do — we willingly test ourselves to see how good we are. We routinely “organize and measure the best of our energies and skills because that challenge is one that we are willing to accept.” We do hard things, we take on huge challenges because that’s who we are. We stand on the high ground – on Earth, and in space.

It’s hard to imagine someone making a speech like that today. It feels hokey in the unforgiving hindsight of all that’s transpired in the past 60 years, and especially recently. No, I’m not nostalgic for the 60’s — those were not “the best days of my life.”[9] And no, I’m not beatifying JFK or waving the flag of American superiority – a myth I’ve long since had disillusioned out of me. It’s just that I miss living in a culture, nation, and world where leaders think and act and talk like that. And in particular, if we’re going to talk about reparations for slavery, we need to do so with the kind of attitude and outlook that permeated JFK’s speech. Otherwise, the legal technicalities will shut it down.

The Open-and-Shut Case Against Reparations

Here is the insurmountable legal case against reparations:

  • Slavery wasn’t illegal. There are and never have been criminal penalties or civil remedies against those who carried it out — all of whom are long since dead anyway.
  • The only possible responsible party is the government itself, which sponsored slavery in the first place.
  • But even if there were legal grounds to prosecute or sue the government (there aren’t) you can’t do it anyway. That’s because the government is protected by the legal doctrine of “sovereign immunity,” which means it can’t be held to account for administering its own law.
  • The only tribunal with authority to override the doctrine of sovereign immunity is international law, but submitting to international law is voluntary, a matter of each nation’s willingness to give up some of its sovereignty to its national peers, and that is a choice the U.S. has not made.

“Law and order” adherence to the legal case against reparations instantly shuts down the idea. The legal case against reparations is exemplified in what Senate majority leader Mitch McConnell said about the topic:

“I don’t think reparations for something that happened 150 years ago for whom none of us currently living are responsible is a good idea. We’ve tried to deal with our original sin of slavery by fighting a Civil War and passing landmark civil rights legislation. We’ve elected an African-American president. I think we’re always a work in progress in this country, but no one currently alive was responsible for that. And I don’t think we should be trying to figure out how to compensate for it. First of all, because it’s pretty hard to figure out who to compensate.”[10]

McConnel’s comments make it clear that he views reparations in the conventional way of suing for “damages”– money –to recompense a victimized party for past losses.

I wasn’t there. Nobody who’s alive now was there. Everybody who was there is dead now. It’s not my fault. It’s nobody’s fault. The law doesn’t hold anybody accountable.

He was right about all that. The rest of what he said was legally unnecessary, a resort to the kinds of rationalization and platitudes we reach for when what we really mean is “over my dead body.”

Slavery was bad, but why dwell on the past? We’ve been trying to move on, put it behind us. We’re a work in progress. We need to let bygones be bygones.

He didn’t need platitudes. He could have gone straight to the ultimate legal defense:

The Ultimate Defense: Sovereign Immunity

“Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune to civil suit or criminal prosecution.”[11]

Sovereign immunity came over on the boat with the rest of English common law.

“Sovereign immunity finds its origins in English common law and the king’s position at the ‘apex of the feudal pyramid.’ In that pyramid, lords could not be sued in their own courts, ‘not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.’ Thus, lords could only be sued in the courts of their superiors, but, for the king, ‘there was no higher court in which he could be sued.’” [12]

Where Sovereign Immunity Came From: The Divine Right of Kings

Sovereign immunity is a carryover from the “Divine Right of Kings” – a legal doctrine formulated in the days when monarchies were more than ceremonial. The doctrine was derived from the Biblical worldview that underlies law and culture in America, Europe, and the U.K.

“The theory of the divine right of kings lent support to the proposition that the king was above the law-that he was in fact the law-giver appointed by God, and therefore could not be subjected to the indignity of suit by his subjects…. To Bracton the maxim ‘the king can do no wrong’ meant simply that the king was not privileged to do wrong, but to Blackstone the phrase was not so restricted, and in his Commentaries the following is to be found: ‘Besides the attribute of sovereignty, the law also ascribes to the king in his political capacity absolute perfection… The king, moreover, is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness.’”[13]

The divine right of kings and non-monarchical sovereign immunity both mean that government –i.e., the people in it who determine and enforce its laws — get the same hands-off treatment as God. God can do no wrong — neither can the king or the President or their emissaries.

I still recall sitting in a law school class when I learned about this. How could it be, that government would not be held accountable for how it treats the governed? “Government needs to be free to govern,” my law professor explained.

There is, however, one powerful way through this legal barrier:

Sovereign Immunity Can be Waived.[14]

The government can volunteer to make things right – it can waive its own sovereign immunity. (It has in fact done so on other occasions, which we will also look at another time.)

Viewed solely as a legal act, a waiver of sovereign immunity would require the commitment and action of all three branches of U.S. government: an act of Congress, signed into law by the President, and upheld as Constitutional by the Supreme Court.

Beyond legalities, reparations would require a break from centuries-old notions of the right of government to govern as it sees fit. Such a break would require a new “social contract.” As one history teacher explains:

“The Divine Right of Kings represents a ‘Top Down’ approach to government, in contrast with the ‘Bottom Up’ approach of social contract theory, which claims that the people create governments for their own protection and that those governments serve the people who created them.”[15]

A New Social Contract

According to Rousseau, a social contract is the mechanism by which we trade individual liberty for community restraint. As Thomas Hobbes famously said, lack of that tradeoff is what makes life “solitary, poor, nasty, brutish, and short.”[16] Or, as a recent version put it, “For roughly 99% of the world’s history, 99% of humanity was poor, hungry, dirty, afraid, stupid, sick, and ugly.”[17] A social contract suggests we can do better. As Hobbes said:

“As long as men live without a common power to keep them all in awe, they are in the condition known as war, and it is a war of every man against every man.

“When a man thinks that peace and self-defense require it, he should be willing (when others are too) to lay down his right to everything, and should be contented with as much liberty against other men as he would allow against himself.”[18]

The USA was created out of the colonists’ desire for a new social contract when their deal with England grew long on chains and short on freedom. In response, the Founders declared a new sovereign nation into existence:

“We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

The new nation was conceived in liberty, but there would be limits. Once the Revolutionary War settled the issue of sovereign independence[19], the Founders articulated a new freedom/chains balance:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

That original social contract + revisions and amendments over the course of 250 years of history = the USA as we know it today.

Mitch McConnell was right: our nation’s history is always a work in progress – we are constantly revisiting and readjusting our social contract.

For reparations to happen, we need a new social contract that would enable a waiver of sovereign immunity. And for that to happen, the new social contract needs to explicitly reject a racial perspective articulated by none other than John Wilkes Booth:

“This country was formed for the white, not for the black man,” John Wilkes Booth wrote, before killing Abraham Lincoln. “And looking upon African slavery from the same standpoint held by those noble framers of our Constitution, I for one have ever considered it one of the greatest blessings (both for themselves and us) that God ever bestowed upon a favored nation.”[20]

Reparations Would Require Another Moon Shot

A new social contract is an idea of monumental proportions. People don’t rally behind small ideas. National transformation requires big, bold, decisive initiative — ideas like that are hard, impossible by current standards, that require voyages into uncharted territory and commitment to solve unprecedented problems. The USA would make reparations for slavery because that’s what Americans do — we willingly test ourselves to see how good we are. We routinely “organize and measure the best of our energies and skills because that challenge is one that we are willing to accept.” We do hard things, we take on huge challenges. That’s who we are. We don’t make ourselves the good guys and everyone else the bad. We don’t blame them, don’t spout media-speak about national interests, don’t hide behind legal technicalities. We do the aspirational. We stand on the high ground – on Earth, and in space.

If the USA is going to make reparations for slavery, we need a new moonshot.

 

[1] Here’s the full text. See also Wikipedia.

[2] See a previously classified CIA report on that speech here.

[3] See Wikipedia.

[4] See this timeline for the Space Race.

[5] NASA.

[6] Tyson, Neil deGrasse and Lang, Avis, Accessory to War: The Unspoken Alliance Between Astrophysics and the Military,

[7] Here’s the full text.

[8] Wikipedia.

[9] Bryan Adams, Summer of ’69.

[10] Axios.com.

[11] Wikipedia on Sovereign Immunity. See also Wikipedia on Sovereign Immunity in the United States.

[12] McCann, Miles, “State Sovereign Immunity,” National Association of Attorneys General, NAGTRI Journal Volume 2, Number 4. Although the article is technically about state – vs. federal — sovereign immunity, the quoted text applies to both. See also the following quote from this monograph from the law firm of Debevoise & Plimpton, a New York based firm with a reputation for its commitment to diversity” “At its core, the doctrine of sovereign immunity stands for the proposition that the government cannot be sued without its consent – that is, ‘the King can do no wrong.’ Sovereign immunity is simple in concept but nuanced in application.”.

[13] Pugh, George W., “Historical Approach to the Doctrine of Sovereign Immunity.” Louisiana Law Review Volume 13, Number 3 (March 1953).. Citations omitted.

[14] McCann, Miles, “State Sovereign Immunity” and Wikipedia on Sovereign Immunity in the United States

[15] TomRichey.net.

[16] Hobbes, Thomas, Leviathan.

[17] Rutger Bregman, Utopia for Realists (2016),

[18] Hobbes, op cit.

[19] In Hobbes’ terms, social contracts end the battle royale. Ironically, they often also create war as the ideals of one contract conflict with those of another.

[20] Coates, Ta-Nehisi, The Case for Reparations, The Atlantic (June 2014).