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Lee A. Harris
Excerpted from: Lee A. Harris, Political Autonomy as a
Form of Reparations to African-Americans , 29 Southern University Law
Review 25, 28-29, 50-56 (Fall 2001) (169 footnotes omitted)
. . .
To this end, a true reparative remedy to African-Americans has three
elements. First, it attempts to eliminate racism against
African-Americans. The point here is intuitive. Since the past
injustice, or harm, done to African- Americans is based on race--the
imposition of slavery, segregation, and seemingly permanent underclass
status--the remedy must target racism against African-Americans.
Second, a true reparative remedy should be backward looking.
Reparations not only recognize an unjust distribution of resources and
redistribute resources accordingly, but also assign blame to the
perpetrator of the wrong. Policies, like the Earned Income Tax Credit,
that are designed to improve the condition of poor people as a matter of
course, including poor African-Americans, are not necessarily
reparative. Put differently, a social policy program that aids the
conditions of African-Americans vis-a-vis whites, but does not
acknowledge the basis for such programs (racism), is remedial, and not
reparative. Such policies are distributive, not corrective.
Third, a reparative remedy to African-Americans need be group-based.
The "real" victims of slavery are long dead; therefore, it is
impossible to recompense them on an individual basis for injustice
during slavery. For the same reasons, it is equally impractical to try
to distribute individual reparations to their descendants based on their
ability to "prove" injury, as in traditional tort claims.
Group-based reparations are the only sound mechanism for reparations. As
such, reparations must be extended to African Americans as members of a
group.
. . .
In addition to arguing that affirmative action is an inadequate
reparative remedy, I have also made the case that cash payments, if
pursued, would similarly be wrong-headed. I have discussed three fatal
problems (1) the problem of design; (2) the problem of public opinion;
and (3) the problem of the courts. As I have shown, these same problems
have been present throughout the history of reparations for
African-Americans. At the same time, I have suggested that statehood for
African-Americans is a third alternative. That said, it is only fair to
test political autonomy against these problems in order to ascertain its
usefulness to supporters of reparations for African- Americans.
A. Design
The first problem seems to be completely resolved by a resort to
political autonomy. To summarize, both monetary transfersand nonmonetary
transfers seem to have had little effect in terms of eradicating
institutional racism, or improving the condition of the majority of
African-Americans.
To a certain extent, the problem of effectiveness is made nearly
inapplicable by resorting to political autonomy. Today much of the
racism against African- Americans
is embedded in the structure of U.S. institutions.
Affirmative action and monetary transfer can do little to ameliorate
this state of affairs. Unlike anything tried before, political autonomy
calls for a separate nation and, of course, completely new institutions.
New institutions would not be handicapped by a legacy of racism, like
that present in U.S. institutions. These new institutions would be
controlled by African-Americans, and, therefore, could hardly operate to
entrench white wealth. Some may argue that political autonomy may create
all new institutions plagued by the same kind of racist ideologies.
Along these lines, one author writes:
Those who argue that the blacks in America are an oppressed nation
(and therefore favor the establishment of a separate black state) miss
the point that a class based, private property capitalism system is the
material base of oppression--of well as race--and that a separate black
state is likely to contain the same base of oppression.
Admittedly, African-American controllers of all-new institutions may
distribute social services and contracts as unevenly among themselves as
the mal-distribution observed in the United States. There is no reason
to believe that an African-American state would not manifest
discriminatory practices very similar to those found in the United
States. The few African-Americans who made it to Liberia, for instance,
dominate that country in virtually every measurable sphere and
completely out of proportion to their size.
And there is no reason to believe
that in a new nation for African-Americans, a similar situation would
emerge.
Certainly, in large part, this contention would depend on what types
of institutions were set up in an African-American state. If American
institutions were transplanted to the new state lockstep, than perhaps
these fears have some basis. Even then, however, an African-American
state with African-American institutions would not have the kind of
institutional racism that stems from a history of slavery as in the
United States. By definition, an African-American state would have all
new institutions that do not include a history of slavery, or permanent
underclass status. The citizenry would be able to start with clean
slates, and create a system that afforded opportunities equally.
B. Public Opinion
Secondly, although in certain ways political autonomy may exacerbate
race- relations, in other ways it seems likely to resolve some of the
problems associated with other forms of reparations. In a nutshell, the
problem of public opinion has been that: first, the public loathes
preferences based on race; and, second, race-based preferences
stigmatize African-Americans.
Indeed, the public has been increasingly in favor of race-neutral
policies and political autonomy seems, at first blush, to cut exactly
the other way. Still, affirmative action has dragged on for decades, has
not improved the condition for the
masses of African-Americans, and there does not appear to be an end to
it in sight. Part of the American belief system is a belief in finality.
Thus, to the extent that there is a perception among white Americans
that affirmative action has entered the land of virtual perpetuity, this
certainly causes some resentment. Political autonomy, by contrast,
promises a 'once-and-for-all' solution. Moreover, political autonomy
would in all likelihood bring to an end programs like affirmative
action, set asides, and quotas that many Americans criticize.
Furthermore, other forms of reparations may actually hurt
African-Americans by engendering a victim-status and inducing a backlash
from whites. Much of the public opinion problems results from the
perception among whites that reparative remedies are reverse
discrimination; i.e., that these type of remedies reward
African-Americans (and, in most cases, other minorities) at the expense
of whites who feel they have played no role in oppressing African-
Americans. In contrast political
autonomy does not suggest that whites should compete against
African-Americans who might have an advantage based on race. On the
contrary, political autonomy suggests separate nations: it suggests, in
other words, that whites should compete against whites; and
African-Americans should compete against other African-Americans.
Finally, political autonomy would significantly alter the victim
status of African-Americans that other policies perpetuate. As I have
shown, other types of remedies,
notably affirmative action, may cause African-Americans to be seen as
victims. In contrast, necessary byproducts of political autonomy are
Black Nationalism and black autarky. Black Nationalism will go a long
way in countering some negative images of African Americans.
C. The Legal Arena
In significant part, the legal problems, which other remedies have
faced, stem from the fact that there are no tight legal precedents for
the courts to follow with regard to the other remedies. In contrast, in
the case of political autonomy, there is at least one precedent: the
creation of Israel.
Following World War II, the Jewish community began pushing for a
nation of their own. This drive in many ways resembles the backdrop for
a potential African-American nationalist movement. For one thing, the
discrimination the Jews suffered at the hands of Hitler parallels in
significant respect to the discrimination African-Americans have faced
throughout the history of the United States. A Crisis editorial,
comparing the discrimination faced by the Jews before the War, declares
the similarity between Jews in Central Europe and African-Americans in
the United States.
The Jews were disfranchised; so were Negroes in the South. Both were
discriminated against in education and employment. Jews were either
excluded from beaches, playgrounds and parks or were restricted to
recreational facilities
specifically designed for them. Jim Crowism humiliated Negroes in a
similar fashion. Propaganda of the vilest variety calculated to incite
hatred for Jews characterized the German educational system from
kindergarten to university. In white America the school system
buttressed society's pejorative image of the Negro. Lastly, both Jews
and Negroes were treated with great cruelty.
African-Americans did not miss the irony in the treatment of Jews in
Europe at the hands of Hitler, and their own persecution at home. In
fact, the plight of African-Americans has been aptly referred to as
"American Nazism." At least
one impetus to the Jewish momentum to create an autonomous separate
state was the treatment of Jewish persons during the war. Jewish
immigrants fleeing from Hitler were refused refuge by many Western
powers, and that refusal feeds a latent sense of Jewish nationalism.
The African-American community, likewise, has suffered at least as
much because of discrimination. African-Americans have been oppressed by
centuries of slavery and endured seemingly permanent secondclass status.
Moreover, the Jewish community felt that Western powers owed them
something for loyalty, their service, and their suffering at the hands
of Hitler during the war. The
commitment to reparations throughout history, despite countless failure,
may be construed as testimony of a similar sentiment among African-
Americans.
Thirdly, the Jewish community has exemplified a culture synonymous
with nationalism. Some might argue that, in contrast to the Jewish
community, there is no such thing as Black Nationalism as an ideology to
begin with, and, therefore, discussions of political autonomy are ill
conceived. However, in much the same
way as there is a Jewish culture, there is a distinct African-American
culture. Certainly, the
African-American culture is on display in music, literature, language,
and many other mediums. Historically black colleges and universities
have become an important representative feature of the black culture.
Finally, the Jewish community was able to stage a major lobbying
effort in the United States, which had something to do with their
success before the German courts and in the legislature.
While it is true that the African-American lobbying effort has not been
nearly as effective throughout U.S. history as the effort staged by
members of the Jewish community right after the war, there is plenty of
potential. African-Americans, after all, represent a sizeable minority
within the United States, have a relatively resourceful middle class,
and are represented noticeably in the legislatures and on the courts.
. . .
Reparations could have a moral impact on the African-American community
and the U.S. community as a whole. In the case of Germany, for instance,
the reparations programs "transformed Germany's social and
geopolitical landscape, providing some measure of closure for a most
shameful period of history." On
reparations to Japanese Americans, one author has it, "redress
cure(s) the soul." The same author
continues, redress demonstrates "that America does the right thing,
(and) that the Constitution works."
For many Americans, and despite its
obvious shortcomings, it is important to believe that our constitution
is infallible, protects its citizens equally, and stands for justice.
Reparations may improve the condition of African-Americans in real
terms. As discussed above, in comparison to whites, African-Americans
are underrepresented in terms of education, income, and good housing;
and, at the same time, African-Americans are over-represented in U.S.
prisons, the number of AIDS cases, and murder rates.
Reparations might do something to close the gap.
Yet, despite the precedents set by other groups in receiving
compensation for injustices, reparations for African-Americans has not
be given serious deliberation. One of
the problems is that the supporters of reparations have centered their
arguments on affirmative action, group entitlements, or other race-based
preferences, exclusively. As I have attempted to demonstrate this type
of myopia has failed in the past and is unlikely to lead
to any significant coups in the future.
The public has been increasingly resistant to race-based preferences;
other cases involving other groups are too dissimilar to create
precedential value for African-Americans; and other forms of reparations
are not up to the task of improving, in real terms, the condition of the
majority of African- Americans. Therefore, supporters of reparations to
African-Americans should look to alternative forms of reparations,
including political autonomy. As a start the U.S. government might
explore ways to gauge African-American sentiment on the topic. A
referendum, for example, could give African-Americans an opportunity to
express their opinion on future debate. In the end, never let it be said
that the author here contemplates that a majority of African-
Americans--or even a significant proportion of African-Americans--would
express support for political autonomy as a form of reparations even if
given the chance. But, more
importantly, never let it be said that the momentum for reparations died
because of unfeasibility, futility, or lack of creativity on the part of
this author.
. The author is a law student at Yale
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