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Watson Branch
Excerpted from: Watson Branch, Reparations for
Slavery: a Dream Deferred, 3 San Diego International Law Journal
177-206, 195-206 (2002) (143 Footnotes)
In his remarks on the occasion of his nomination as Secretary of
State in the cabinet of President-elect George W. Bush, General Colin
Powell said that he was glad that the newspaper reports about the
occasion would say that he would be the first African American to hold
the position because it would, he hoped, "give inspiration to young
African-Americans coming along . . . that no matter where you began in
this society[,] with hard work and with dedication and with the
opportunities that are presented by this society, there are no
limitations on you." If this statement were true, there would be
little need for reparations, but as Dr. Browne pointed out thirty years
ago, "[b]lacks in America have no bootstraps to pull ourselves up
by." After declaring that the "illusions of power, such as
another black in the federal administration's cabinet, are
insufficient," Dr. Browne went on to say, "[w]e start with so
few economic resources that our tactics must be to utilize cleverly what
strength we have . . . to extract some economic resources from those who
do have them." And some of those who "do have them" are
the churches and synagogues of America, the specific targets of the
demands for reparations presented in The Black Manifesto by James Forman
on Sunday, May 4, 1969, when he interrupted the service at the Riverside
Church in New York City. That was the opening salvo in the modern battle
to persuade white America to compensate African Americans for 350 years
of suffering under slavery, segregation, and discrimination.
The Black Manifesto demanded $500 million from the churches and
synagogues, prescribed the ways in which it should be spent, including a
land bank and organizations that would deal with communications,
welfare, labor, business, and education, and laid out a program for
gaining support for the demands. The response of the church's preaching
minister, Dr. Earnest Campbell, was measured and sympathetic in a radio
address a week later. To the outcries of "shame" at Forman's
behavior, Dr. Campbell said, "[t]he shame centers in the fact that
within the population of this most prosperous nation there are people
who feel, rightly or wrongly, that they have to use such tactics to draw
attention to their grievances." He went on to define
"reparations" as the "making of amends for wrong or
injury done," and condemned the "demeaning and heinous
mistreatment" of blacks at the hands of whites during and after
slavery, declaring it "just and reasonable that amends be made by
many institutions in society."
Reparations can also be defined in a more legal sense, as Elazar
Barkan does when he says the term refers to "some form of material
recompense for that which cannot be returned, such as human life, a
flourishing culture and economy, and identity." For Barkan it is
still a moral argument: although the past cannot be undone, "the
effect of this historical injustice constitutes a continuing violation.
Therefore, the descendants of slaves are themselves victims." More
broadly, reparations, as Professor Matsuda so clearly explains, are not
"equivalent to a standard legal judgment. It is the formal
acknowledgement of historical wrong, the recognition of continuing
injury, and the commitment to redress, looking always to victims for
guidance." Within this context, the purpose of reparations may be
seen as three-fold. In his article, "[t]he Economic Basis for
Reparations to Black America," Dr. Browne summarizes the
objectives: first, to punish white Americans for their ancestors' brutal
enslavement of African Americans; second, to compensate the African
American community for the unpaid labor of their slave ancestors; third,
to provide African Americans with their fair share of the national
wealth and income that would have been theirs had they had the same
opportunities and advantages that white Americans experienced over the
last 375 years.
Reparations, then, become the answer to the problem of race and
racism in America, and the question is how best to implement them. A
failure to redress the injuries caused by slavery and its aftermath is,
as Professor Matsuda says, "an injury often more serious than the
acts themselves, because it signifies the political non-personhood of
victims." Reparations declare to the victims of racism that they
exist as persons and that they are entitled to compensation for real
deprivations: "This nation and its laws acknowledge you." The
achievement of recognition is one of the most important benefits of
reparations, harbingering the socioeconomic benefits that will accrue
when a program of reparations is instituted. Recognition is linked,
Charles Taylor says, with identity,
where this latter term designates something like a person's
understanding of who they are, of their fundamental defining
characteristics as a human being. The thesis is that our identity is
partly shaped by recognition or its absence, often by the misrecognition
of others, and so a person or group of people can suffer real damage,
real distortion, if the people or society around them mirror back to
them a confining or demeaning or contemptible picture of themselves.
Nonrecognition or misrecognition can inflict harm, can be a form of
oppression, imprisoning someone in a false, distorted, and reduced mode
of being. This lack of true recognition and the resulting injury to
identity have been the fate of African Americans as individuals and as a
group, leaving them subjugated to the image of inferiority imposed upon
them by the dominant white hegemony. The granting of reparation could
work to overturn this debilitating situation and free blacks from the
prison of misrecognition, first, by the acknowledgement of their
identities as persons worthy of receiving restitution and, second, by
the positive effects on the socioeconomic conditions of blacks from an
executed program of reparations, raising them to a position of parity
within the general community. Once reparations are paid, says Professor
Westley,
[b]lacks will be able to function within American society on a
footing of absolute equality. Their chance for public happiness, as
opposed to private happiness, will be the same as that of any white
citizen who currently takes this concept for granted because the public
so utterly "belongs" to him, so utterly affirms his value, his
humanity, his dignity and his presence.
What, then, ought to be the specific nature of a program of
reparations for African Americans for the harms suffered under slavery,
segregation, and discrimination? The best place to look for guidance, as
Professor Matsuda suggests, is to the victims themselves, and the
TransAfrica Forum's "Restatement of the Black Manifesto" is an
excellent starting point. This updating of the 1969 Black Manifesto
begins with a "Statement of Facts," opening with a list of ten
points that underpin the need for reparations today. They fall into two
groups: the first five focus on the failure of the U.S. government to
acknowledge its role in the mistreatment of African Americans or to
compensate them, either by statute or in the courts, for their original
and continuing subordination; the second five assert the appropriateness
of reparations by a government that has abrogated the rights of its
minorities, citing as precedent recent state and federal payments of
reparations to injured groups for provable injuries they have suffered.
On this basis, the new Manifesto states its position: It is time for the
government--not for private individuals--to create a forum in which it
can pay the debt and heal the wounds caused by slavery, segregation, and
discrimination in order to redress the continuing harm not only of
uncompensated labor but also of the poverty and deprivations that have
persisted from generation to generation. This Manifesto concludes with a
call for Congressional hearings to establish the basis for reparations
and to determine the amount.
A bill to achieve precisely such hearings is presently before the
U.S. House of Representative. On January 3, 2001, Rep. John Conyers (D-Mich.)
once again introduced a bill that he had been proposing for more than a
decade. Appropriately numbered HR 40, it is called the "Commission
to Study Reparation Proposals for African-Americans Act," and its
intent is
To acknowledge the fundamental injustice, cruelty, brutality, and
inhumanity of slavery in the United States and the 13 American colonies
between 1619 and 1865 and to establish a commission to examine the
institution of slavery, subsequently de jure and de facto racial and
economic discrimination against African-Americans, and the impact of
these forces on living African-Americans, to make recommendations to the
Congress on appropriate remedies, and for other purposes. The commission
would examine, first, the institution of slavery and the extent to which
state and federal governments supported it constitutionally and
statutorily; second, economic, social, and political discrimination
against freed slaves and their descendants; and, third, the continuing
negative effect of slavery and discrimination on living
African-Americans and on U.S. society generally, all to the end of
recommending appropriate remedies. The bill was referred to the House
Committee on the Judiciary, where, as one might expect, it languishes.
Even a decade after it was first introduced, the bill has been able to
attract only 30 cosponsors in the 107th Congress out of the 435 members
of the House.
Still, the future of reparations for blacks may not be totally bleak.
Recent examples of reparations to groups who have suffered historical
injury, such as Japanese Americans or Jewish survivors of the Holocaust,
could set a precedent for African Americans. At the end of his
discussion of compensation for Japanese Americans and European Jews as
"victimized groups," Professor Westley quotes David Ben
Gurion's response to the Wiedergutmachung that, for the first time in
history of the oppressed European Jews, "a persecutor and despoiler
has been obliged to return part of his spoils and has even undertaken to
make collective reparations as partial compensation for the material
losses." Professor Westley adds,
[t]he principle, then, was that when a State or government has
through its official organs--its laws and customs--despoiled and
victimized and murdered a group of its own inhabitants and citizens on
the basis of group membership, that State or its successor in interest
has an unquestionable moral obligation to compensate that group
materially on the same basis. After a detailed comparison of reparations
to internees of Japanese descent and African Americans, Professor Verdun
concludes that granting reparations to Japanese Americans without
granting them to African Americans "sends to the latter yet another
message declaring that they are on the bottom of society's ladder, and
this exclusion confirms their sense of futility in the quest for justice
in the United States."
Perhaps even more important for the eventual success of reparations
in the United States may be the existence of federal budget surpluses in
the coming years after the threat of terrorism subsides. Because blacks
usually absorb the brunt of economic hard times, the prospects for any
social program that might serve them in particular are very problematic
when such a program would have to compete with projects favored by the
dominant white culture in the competition for scarce funds. Still, two
major questions must be addressed. One, should the effort to achieve
reparations be made through the courts or through the legislature? And
two, should the awards be made to individual African Americans in the
form of monetary grants, or should they be made to African Americans as
a group in the form of support for the black community?
Many proponents of reparations believe that the courts should be the
battlefield, but it is precisely in the area of litigation that the
opponents to reparations, no matter what their motives, are able to
marshal their strongest arguments. Professor Matsuda lists four standard
doctrinal objections to reparations: 1) factual objections and excuses
or justifications for illegal acts; 2) difficult identification of
perpetrator and victim groups; 3) lack of sufficient connection between
past wrong and present claim; 4) difficulty of calculation of damages.
Derrick Bell, in his generally sympathetic review of Professor Bittker's
The Case for Black Reparations, says,
[w]hether based on [42 U.S.C.] section 1983 or directly on
constitutional amendments, reparations litigation, if attempted on a
broad scale, faces an avalanche of procedural problems, including
determining proper parties, fashioning an appropriate class action, and
effecting meaningful discovery, all of which are likely to increase in
complexity as the case proceeds. In an effort to answer the objections,
Professor Matsuda develops a theory of liberal legalism that includes
reparations. She argues for the expansion of the standard legal claim so
that the plaintiffs would be members of the victim group and the
defendants would be descendants of the perpetrators and current
beneficiaries of past injustices. She seeks to overcome the traditional
legal bars of time, proximate cause, and laches by linking them to the
limiting perspective of the victims. And she finds sufficient precedent
for the awarding of damages that cannot be determined with scientific
precision.
Given the penchant of judges to stick to more traditional or
conventional applications of the law, the prospects for successful
reparations are slim. This is evident from the histories of two
unsuccessful cases: Hohri v. United States and Cato v. United States. In
Hohri, victims of the Japanese internment during WWII and descendants of
some of the deceased victims bought a class action suit for compensation
based on various theories of liability, including constitutional
violations, tort, breach of contract and fiduciary duties. Despite the
failure of the suit, Rhonda Magee sees the courts as the "most
promising starting point" for successful reparations because the
total exhaustion of legal options for reparations can bolster the
victims' claims for legislative action. In Cato, the plaintiffs'
complaint against the government "for damages due to the
enslavement of African Americans and subsequent discrimination against
them, for an acknowledgement of discrimination, and for an apology"
was dismissed by the district court. The 9th Circuit affirmed, quoting
Judge Armstrong:
Discrimination and bigotry of any type is [ sic] intolerable, and the
enslavement of Africans by this Country is inexcusable. This Court,
however, is unable to identify any legally cognizable basis upon which
plaintiff's claims may proceed against the United States. While
plaintiff may be justified in seeking redress for past and present
injustices, it is not within the jurisdiction of this Court to grant the
requested relief. The legislature, rather than the judiciary, is the
appropriate forum for plaintiff's grievances.
Considering this predilection on the part of judges to defer to the
legislature as the proper forum for the redress of grievances based on
slavery, segregation, and discrimination, perhaps the proponents of
reparations ought to concentrate their efforts on Congress. But even
then, reparations measures would not escape the scrutiny of the courts,
which would decide on their constitutionality. Professor Bittker made a
strong argument for the constitutionality of reparations, an argument
that has been updated by Professor Brooks in light of the current
Supreme Court's decisions in the area of affirmative action. By applying
the "non-subordinating principle" rather than a
"colorblind principle," Professor Brooks can justify the
constitutionality of laws that seek to correct the injustices of the
continuing effects of slavery and discrimination through a benign race-
consciousness. After tracing the history of Supreme Court opinions, from
Bakke decided in1978, to Adarand decided in1995, that deal with
constitutional challenges to racial preferences and that display a
movement toward the strict scrutiny test for governmental actions based
on race, Professor Brooks concludes that "Adarand would seem to
sound the death knell for black reparations, unless they can be tendered
as compensation for the government's racial discrimination against
blacks."
But, asks Professor Brooks, will the blacks who benefit from
reparations legislation be seen by the Supreme Court as the actual
victims of governmental misconduct, and thus be deserving of
compensation under tests the Court will most likely apply? From the
myopic viewpoint of those who oppose black reparations, such as Stephan
Thernstrom, the answer is definitely no: "Most Americans today are
not the descendants of anyone who lived in the United States in the
period in which slavery existed." Professor Matsuda tries to deal
with this problem, as discussed above, by broadening the definition of
the class of victims of slavery and its aftermath to include present day
African Americans. Professor Brooks deals with this problem by proposing
two bases of legal support for reparations for nonvictims. The first is
constitutional, growing out of the Supreme Court's affirmative action
cases, which allow present-day remedies for past discrimination. When
the discrimination precedes by many years the enactment of the remedy,
the beneficiary need not be the same person as the victim. The second is
statutory, developing in a manner comparable to 706(g) of Title VII of
the 1964 CivilRights Act, which gives the courts wide discretion in
fashioning equitable relief upon a finding of unlawful discrimination.
Taking this statute as a model, Professor Brooks says, "Congress
could pass legislation designed to atone for past discrimination rather
than to compensate actual victims." But in the end, he says,
judicial resolution of legal problems surrounding black reparations
"might well turn on public policy considerations, as is usually the
case."
Also turning on public policy considerations is the question of the
best method for distributing reparations. The purpose of reparations is
to compensate African Americans so that they can assume the place in
American society that they would have reached had it not been for their
unjust treatment during the periods of slavery, segregation, and
discrimination. Based on all the historical facts discussed above, there
is no doubt that blacks are entitled to compensation. The question,
then, is how to compensate them in a way that will best accomplish the
public policy purpose of socioeconomic and political parity.
Dr. Browne suggests four possible methods for payment of reparations:
1. A per capita cash payment to each African American on a designated
date, based on a pro rata share of the finally agreed on reparations
debt.
2. Investment of the reparations payments in income-producing assets,
with the income allocated annually on a per capita basis.
3. Use of the payment to fund massive government-sponsored programs
to raise educational and skill levels, provide housing, and generally
improve overall economic status.
4. A collective payment to the "community" to create
conditions necessary for "takeoff" in the Rostovian sense.
Distributing individual reparations by presenting each African
American a certain sum of money, as the first two of Dr. Browne's
methods do, raises major problems beyond the mere question of exactly
how much money should be given. For one thing, how would the recipients
be chosen? Who would qualify as an "African American" ? Even
if the reparations program avoided the whole question of privity by not
requiring that a beneficiary be someone who had suffered injury or be
the descendant of such a person and even if the awards were intended for
blacks as a group, there would still be the problem of determining who
was black. Professor Bittker raises this as a problem in his book, but
in his review of it, Professor Bell finds the fears about false claims
not borne out by experience: whites have shown little interest in
declaring themselves to be black in order to benefit from affirmative
action programs.
Dr. Browne's methods 3 and 4 offer a better solution. Making cash
grants to individuals would temporarily improve their standard of
living, but it would do little to solve the large, long-term problems
that plague many blacks today. However, large transfers of money to the
black communities would enable them to make major improvements in the
areas of education, housing, employment, business, finance, police and
fire protection, health maintenance, and general infrastructure. Over a
period of years, such improvements would make a real and long-lasting
change in the lives of African Americans, moving them toward a position
of social equality.
The kinds of programs that are needed are self-evident to anyone who
takes the time to examine honestly the lives of African Americans in
this country, and scholars, many of whom are cited throughout this
paper, have made promising and practical proposals for what can be done
if money were to become available. But no matter what the program, it
must be African Americans themselves who design and implement it. House
Judiciary Committee hearings on Congressman Conyers' HR 40, if the
Republican leadership ever allows them, will provide African Americans
with the opportunity to testify about the history and present reality of
racism in this country and will create a factual record as a basis for
governmental programs to help black communities. The hearings will bring
to the forefront those organizations and individuals who can be
instrumental in implementing those programs. The voices of African
Americans must be heard and attended to. One important voice is that of
Randall Robinson:
There is much new fessing-up that white society must be induced to do
here for the common good. First, it must own up to slavery and
acknowledge its debt to slavery's contemporary victims. It must, at long
last, pay that debt in massive restitutions made to America's only
involuntary members. . . . It must open wide a scholarly concourse to
the African ancients to which its highly evolved culture owes much
credit and gives none. It must rearrange the furniture of its national
myths, monuments, lores, symbols, iconography, legends, and arts to
reflect the contributions and sensibilities of all Americans. It must
set afoot new values. It must purify memory. It must recast its lying
face.
It is a matter of vision. Whites must first see blacks, see them as
fellow human beings and not treat them as if they were, in Ralph
Ellison's term, "invisible." Then, whites must see blacks as
equals. For Professor Alienikoff, this revisioning has two parts:
"First, whites must see blacks in positions of power, authority,
and responsibility . . . Second, whites must begin to recognize and
credit self-definition by subordinated groups." It is the purpose
of reparations to allow blacks to achieve these positions. It will take
time not only to institute changes but also for the changes to have an
effect on the perceptions that whites have of blacks and that blacks
have of themselves. African-American children are the ones who will most
benefit from reparations, but it will probably take two generations for
the black community to benefit as the children move up through improved
schools where they will receive a first-class education, live in
adequate housing in decent neighborhoods, eat healthful foods, get
excellent medical care, and be protected by highly professional and
sympathetic fire and police forces. When these children grow and mature
and enter the wider world of the American society, they will do so not
as deprived or injured or oppressed or subordinated adults but as equals
to anyone. The old stereotypes will be destroyed by the very numbers and
abilities and accomplishments of these new generations of African
Americans. Those seen today by the white society as being
"exceptions"--the African Americans who have gained positions
of honor and success in the white American culture--will become the
"rule." Racial equality will be a massive and undeniable
reality.
As Gwendolyn Brooks wrote:
The White Troops Had Their Orders But the Negroes
Looked Like Men
They had supposed their formula was fixed.
They had obeyed instructions to devise
A type of cold, a type of hooded gaze.
But when the Negroes came they were perplexed.
These Negroes looked like men. Besides, it taxed
Time and the temper to remember those
Congenital inequities that cause
Disfavor of the darkness. Such as boxed
Their feelings properly, complete to tags --
A box for dark men and a box for Other --
Would often find the contents had been scrambled.
Or even switched. Who really gave two figs?
Neither the earth nor heaven ever trembled.
And there was nothing startling in the weather |
