| Richard A. Epstein, The Case Against Black Reparations,
24 Boston University Law Review 1177-1192 (December, 2004)(68 Footnotes
Omitted)
Introduction
The legal case for black reparations has been rejected. The political
struggle for black reparations continues. The purpose of this short
essay is to indicate my views on both the legal and political sides of
the current sputtering campaign. Section I talks briefly about some of
the legal issues raised by the recent claims for reparations. Section II
addresses the political movement, with some reference to events taking
place by close to Boston, namely the self-study on the complicity of
Brown University in slavery and regulation organized by Ruth Simmons,
the President of Brown and herself a black woman of much distinction.
I. The Legal Position
Quite by chance, I recently picked up a copy of Boris Bittker's The Case
for Black Reparations, published in 1973. Its elegant text is obviously
dated, but it reflects the open wound that slavery and segregation
continued to inflict on American society even after Brown v. Board of
Education had been on the books for almost twenty years. The memory of
Plessy v. Ferguson remained stuck in the craw of this distinguished
American liberal whose main area of expertise was taxation and not civil
rights or race relations. (The joke at Yale when I was a student was
that Bittker, with his relentless intellectual rigor, was able to make
his civil rights course resemble his courses in taxation, when most
people hoped for the opposite result). In his book, Bittker offers a
merciless dissection of the claims for and against judicially-imposed
reparations. He makes it clear that he prefers some kind of legislative
program, perhaps one modeled on the German compensation program for
victims of the Holocaust, which included payments to Israel. He
entertains the possibility of bringing action under Section 1983 against
various officials who had enforced segregation while acting under color
of state law. In evaluating the remedial alternatives, Bittker is
genuinely troubled about whether the distribution of the cash in a
program of reparations ought to be paid to individuals for their
personal grievances, or paid over to black organizations for use in
promoting various social programs. He is further troubled by the charge
that the introduction of a race-specific reparations program could
undermine the color-blind norm of state action that animated Justice
Harlan's famous dissent in Plessy. The pain of past injustices runs very
deep.
I mention these materials because the passage of thirty years has not
put all of these questions to rest, particularly in light of the recent
flurry of action over this question. Bittker's elegant exposition of his
case reveals the difficulties that have dogged the various claims for
black reparations, all of which Judge Norgle firmly rejected recently in
African American Slave Descendants Litigation. That case addressed the
possibility of judicially created remedies, and did not discuss the
legislative route that has been used, for example, in the award of
limited reparations to the Japanese who were interned in the United
States during the Second World War. In this regard, the most impressive
feature of the Norgle opinion is that he spent very little time
discussing the substantive merits of the individual cases, and instead
focused much more on the bewildering array of procedural and
constitutional objections to the plaintiffs' cases.
Here I shall consider three of those procedural points: standing,
political question, and the statute of limitations. Under received law,
Norgle was right to think that each of these obstacles could not be
overcome. As a matter of principle, however, I think that the last
objection is the only one that works. But in law, generally one good
argument is enough, and this argument is indeed sufficient to carry the
day. In the course of dealing with that last issue, I will discuss some
of the substantive issues that it necessarily raises. These cluster
largely about the question of what should be done when the individual
perpetrators of past wrongs are beyond the reach of the law, and the
plaintiff must ground its claims on a theory of vicarious liability.
A. Standing
The initial obstacle to the plaintiff's case was the doctrine of
standing, which in its accepted modern form requires that any plaintiff
show that his injury is separate and distinct from that of the public at
large, and that the harm in question be traceable to some wrongful
action of the defendant. In Norgle's view this test was not satisfied
when the descendants of past slaves could only state a derivative claim
for injuries rather than one personal to themselves. In rejecting a
claim for historical injustice, he chided the plaintiffs for presenting
a claim that was "contrary to centuries of well-settled legal
principles requiring that a litigant demonstrate a personal stake in an
alleged dispute." In this particular case, unlike others, I do not
have any deep conceptual objections to the definitions of standing that
Norgle applied here. I think that these tests of discrete injury are
wholly inappropriate, however, for those claims that seek to enjoin the
government from the commission of actions that are ultra vires a
particular branch of the federal government. As I have argued elsewhere,
the judicial power extends to cases in equity, and one standard tenet of
equitable remedies, such as those crafted to deal with derivative
actions against the officers of corporations and voluntary associations,
is that all members of the relevant class stand in the same position to
the wrongdoer, such that one individual may become the virtual champion
of the entire group.
In cases that take this form, the object of the lawsuit is to protect
against actions - such as the appointment of a national bishop or the
refusal to publish the budgets of our intelligence agencies - that may
be conducted in violation of structural limitations contained in the
Constitution. These violations will go largely unredressed unless one
person can bring the case for everyone. The insistence on a separate and
discrete injury in these cases necessarily results in an odd truncation
of the doctrine of judicial review established in Marbury v. Madison.
Hence I think that there is a strong case for citizen or taxpayer
standing, which means that the chief task for the court is to decide
which case should be allowed to go forward when multiple challenges are
made.
None of the plaintiffs' claims in African American Slave Descendents
Litigation fall into this class. These actions sought damages for
conversion and restitution against private corporations who allegedly
profited from the forced labor of black slaves, or from insurance or
lending businesses relating to the slave trade. These are not claims for
citizen standing which I would allow, even if the current law allowed
for citizen or taxpayer standing. Rather, these claims are straight
claims for compensation for past wrongs, or for the performance of
particular acts, such as opening corporate books to inspection or for an
accounting. Whatever the merits of these suits, their form is far from
exotic.
Regarding a different justification for denying standing, the damage
claims should not be dismissed solely because they are not brought by
the persons directly injured but by their descendants. Derivative
actions are routinely allowed in other contexts. For instance, the
normal action for loss of consortium when brought by the disappointed
spouse or child is actually a derivative action because the real victim
in the case is the party who was physically injured in the accident. The
same could be said about any action for wrongful death brought by a
descendant under a tort theory that would have been available to the
decedent had he lived.
The plaintiff's cases are sharply distinguishable, moreover, from the
full range of tort cases in which standing doctrine does bar actions
that might be allowed if the only tools in the defendant's war chest
were duty of care and proximate cause. I refer here to situations in
which the pollution of public waters is said to generate a cause of
action for fishermen, but not for the packers who are dependent on their
catch. The defense of the result in these cases is that the inner tier
of plaintiffs will satisfy the need for deterrence, so that the huge
administrative costs associated with the second tier of actions can be
safely avoided. In reparations cases, on the other hand, there is no
inner circle of claims that are allowed: all actions for reparations
fail even if the standing objection is allowed.
In light of these considerations, it is therefore a real puzzle why
standing should be such an obstacle when the case is so similar to those
where standing is routinely allowed and so different from those where it
is routinely denied. A finding of standing does not announce to the
world that the claim is sound. It only signals that the plaintiffs
should have the opportunity to show that it is sound, both on the law
and the facts. What has happened in this case is little more than a
disguised ruling on the merits.
B. Political Question Doctrine
The court also dismissed African American Slave Descendants for running
afoul of the political question doctrine. The court conceived of the
doctrine in the standard formulation of Baker v. Carr, and reasoned that
judicial power is restricted because the entire matter of reparations
had been committed to the legislative branch. The basic elements of the
political question doctrine have been expressed as follows:
[1] A textually demonstrable constitutional commitment of the issue
to a coordinate political department; or [2] a lack of judicially
discoverable and manageable standards for resolving it; or [3] the
impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or [4] the impossibility of a
court's undertaking independent resolution without expressing lack of
respect due coordinate branches of government; or [5] an unusual need
for unquestioning adherence to a political decision already made; or [6]
the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
I confess a genuine difficulty in seeing how this doctrine should apply.
Starting from the top, there is little reason to think that reparations
are committed to any other branch of government apart from the
judiciary. The usual cases in which the political question doctrine has
real legs arise in connection with claims brought by foreign individuals
in the United States, when the executive branch, often with
Congressional backing, has sought to work out some accommodation with
foreign governments and foreign nationals. The argument in these cases
is that the domestic litigation works at cross purposes with our
diplomatic objectives. Exactly how these two goals should be reconciled
is an issue far beyond the scope of this short essay. Regardless of the
right resolution, however, I do not think that we should express the
political question doctrine as a limitation on the judicial power. If we
do, then it is hard to see how that power could ever be conferred, even
if the executive branch waived objections to the suit on the ground that
the suit did not impede the nation's own diplomatic initiatives. The
better way to think of the doctrine is as an exercise of inter-branch
comity, which recognizes that international problems are often better
solved by political rather than judicial means, even if it results in
the loss of individual claims.
Many of the claims for reparations in which the political question
doctrine has been used take place in international contexts. With
respect to domestic situations, I am again hard pressed to understand
why an ordinary claim for restitution or conversion should be thought of
as raising the political question doctrine simply because the matter is
politically explosive. No one raised such an objection in Brown v. Board
of Education, and I see no reason why the reparations issue should be
bounced out of court on the ground that it is too hot to handle. One
might as well say that all current asbestos litigation should be brought
to a halt because Congress is hard at work in a quixotic endeavor to
fashion some claim facility that will deal with these issues. Nor is
there any difficulty in discovering the underlying legal principles to
govern these cases. After all, it is quite permissible at common law to
deny a cause of action on the ground that it has been barred by the
statute of limitations or that the plaintiff has not pleaded or proven
sufficient acts that will allow for a definitive determination of
damages. The entire body of law that relates to the indefiniteness of
certain promises proceeds on exactly these grounds. It is not as though
a court is asked to rule on a declaration of war, or even to act to
undermine a compensation scheme already in place. Here again the
political question evasion seems to make little sense, and indeed has
the appearance of being an opportunistic doctrine used to put aside
political hot potatoes that raise standard legal issues.
C. Statute of Limitations
The statute of limitations defense, however, seems to be impregnable in
these cases. These statutes can raise individual issues of immense
complexity, but the basic outlines are tolerably clear. As a basic
matter, a statute of limitations has two major purposes. The first
purpose is to make sure that the cause of action is brought when the
evidence is fresh so that a trial can conclude with tolerable accuracy.
Second, and equally laudable, these statutes allow parties to bring to
closure past disputes so that everyone can get on with the business of
life. These considerations also rationalize the doctrines of adverse
possession and prescription developed in connection with claims for real
property. In general, the statute of limitations starts to run when the
cause of action accrues, that is, when plaintiff suffers the harm.
As a first approximation, therefore, the individual causes of action for
slavery and segregation accrued when the injuries were inflicted, so
that the statutes in question have long run unless some tolling
exception applies. Tolling refers to those equitable circumstances that
"toll," or stop, the statute of limitation from running. In
the simplest case, the statute is tolled during the minority of an
individual who lacks the capacity to bring suit on his own behalf. It
takes little imagination to accept that the statute should be tolled
when the injured person is prohibited by law from bringing any legal
action at all, which occurs when a slave is a nonperson. But even if we
allow this tolling defense, it only gets us up to around 1865. Much of
the wrongs inflicted in the United States took place after the civil war
during the period of official segregation. But segregation does not toll
the statute of limitations because segregation did not limit the right
to bring suit, even if the climate of opinion made it impossible to win
on these cases. That happens in countless areas of life. For example,
the privity limitation relevant to product liability law once made it
impossible for an injured person to sue a remote supplier of goods in
New York unless certain limited exceptions applied. Although MacPherson
v. Buick undid this limitation in 1916, a tort cause of action barred in
New York in 1866 could still not be revived fifty years later. The same
is true with reparations. The hostile legal climate surrounding a cause
of action for reparations, or for anything else, does not prevent the
statute from running.
Furthermore, this case is not one where the individual plaintiff does
not suffer an injury until years after the defendant has acted. In
contrast, in cases where someone inhales asbestos fibers in 2004, under
traditional law the plaintiff has a cause of action against the
manufacturer who made the fiberboard fifty years earlier. A statute of
repose could bar actions based on the number of years since the
defendant has parted with possession of the dangerous product. This bar,
however, is wholly without regard to the time of the plaintiff's injury.
Nor is this a case of concealment or of a continuing wrong, apart from
the want of redress of the older wrong, which if allowed in any case
always makes the statute a dead letter. I think that the statute of
limitations defense should be allowed, and that the case should turn on
that ground alone, not that of standing or political question.
This result is consistent with the basic theory of the statute of
limitations because the passage of time is, in general, a reliable proxy
for the increased complexity of events. The correct view of the
substantive law allows for the descent of the action to take place on
both sides of the case. On the plaintiff's side, each passing year
results in the multiplication of the number of descendants to whom some
fractional interests have passed. The analogous problem in connection
with the possibilities of reverter and determinable fees has resulted in
a number of legislative and private initiatives whose purpose is to cut
down these actions because of the huge number of parties involved. Thus
a legislature could require that individuals reregister their interests
to keep their interests alive, or the legislature could require the
creation of trustees who are allowed to proceed on behalf of all
parties. But no such mechanism is available here, so that we see with
each passing year the numbing difficulties of trying to figure out who
is a descendant of whom, and to what fraction.
This seems to make the class action approach difficult if we were to
aggregate the individual claims, where each claim is dubious in itself
and differs in some particulars from the others. In the years since 1865
we have had at least seven generations, so that a direct descendant of a
slave is 127 parts not slave descendant, unless there is another slave
somewhere else in his or her line of ascent. The truncation worked by
the statute of limitations prevents these reparations actions from
lasting for more than a single generation. To circumvent this problem,
we have to contrive of some class-wide payment that goes to no one in
particular, but to entities who are said to represent these individuals.
But at this point, why think of the claim as one for reparations when
the program looks far more like some legislative initiative that does
not have to observe the standard constraints of corrective justice, but
simply has to command sufficient political support to pass.
Similar difficulties exist on the side of the defendant. Let us assume
that the claim really does ask for an accounting of profits that were
achieved by using black labor, by selling insurance on slaves, or by
making loans to purchase slaves. We have no idea how much of that profit
(assuming that it could be calibrated) actually descended to the next
generation. The ordinary business will reinvest some fraction of its
profits, but will declare some as dividends and pay some out in salaries
to its employees. Dividends and wages do not descend to the next
generation. Hence it becomes necessary to figure out just how much of
the current worth of any firm is related to these distant events, as
opposed to those of more recent vintage that were conducted on a far
larger scale. Any calculation that takes interest at just 2% of the full
profits, or even some fraction thereof, improperly ignores the
distributions and consumption that cause this action to fail.
The numbers generated by faulty calculations are orders of magnitude too
high. Think of the matter this way: $100 invested in 1865 at 2% interest
compounded annually equals $1600 140 years later. But if one allows a
bit for inflation and does the calculations at 5%, then we are at
$92,500. Those numbers increase exponentially to $11,589 for profits
invested in 1765 at 2%, and to $12,173,957 for that same $100 invested
at 5% interest. These calculations would suggest that huge fractions of
the net worth of the targeted firms, if not their entire value, is
attributable to the slave trade, until it is remembered that the same
dubious calculations could be used to attribute the full net worth of
the firm to virtually all of its other activities as well. None of these
calculations are accurate because they all assume that all earnings were
retained and invested, which does not happen anywhere. The use of a
statute of limitations truncates these inquiries to a smaller number of
years where it is possible to actually trace the dollars in question
through specific transactions, instead of relying on some general
statement that X institution was engaged in some activity that allowed
it to profit from slavery.
In this regard, it is instructive to note that the most common cases in
which the statute of limitations is tolled are those that seek the
return of specific works of art taken from their owners during the
Holocaust or some other cataclysmic event. But these claims present none
of the difficulties associated with the claims for reparations. First,
with art claims there is a genuine case for denying the operation of the
statute of limitations, for even though the plaintiff knows that a wrong
is committed, it may be impossible to figure out by whom, especially for
art not on public display. Second, there is no valuation problem
involved in these cases because the art work remains (precisely because
it is art) in its original condition, give or take a few levels of dirt
or varnish. And third, the plaintiffs almost always seek only the
restoration of the art in question, not recovery for the fair rental
value of the art work for the many years that it was in the hands of
others. These underlying claims are much more focused than those for
reparations, and the remedy demanded is far more limited.
In sum, the decision in African American Slave Descendants offers a full
range of reasons for denying claims for reparations. As a descriptive
matter, I think that courts will eagerly embrace all of the reasoning in
that decision in order to rid themselves of cases from which they can
see no good coming. As a normative matter, I think that the case is
rightly decided on the prosaic grounds of the statute of limitations. I
would prefer to see the matter left right there on the ground that we
could then avoid making bad law on other issues that could spill over
into cases that have little or nothing to do with reparations, or which
do not present any major time issue. That said, recall that the statute
of limitations only bars a legal right of action. It does not determine
that no right has ever existed; it is thus hornbook law that money owed
which is paid over voluntarily after the expiration of the statute of
limitations cannot be recovered, even if a suit for that same sum could
be effectively resisted. For the same reason, the running of the statute
of limitations does not block nonjudicial responses to the underlying
problem. The view that I have taken of the case therefore fairly invites
consideration of how these matters ought to proceed once litigation
against all public and private defendants is out of bounds. It is to
that question that I next turn.
II. The Political Dimension
The elimination of all legal avenues of relief will, we can be
confident, place great emphasis on political efforts to achieve the same
results. These efforts will in turn take place in two distinct arenas.
First, there will be efforts to induce the Congress of the United
States, and perhaps even individual states, to make reparations or
apologies, perhaps on the model that was done with respect to the
Japanese who were inexcusably interned during World War II. Second,
there will be efforts to reach private parties whose operations were
tainted by slavery, segregation, or both, just as in African American
Slave Descendants. I think that the political efforts at compensation
will go nowhere, but may engender a fair bit of bitterness along the
way. The private efforts will produce stranger results, as the new
initiative of Brown University is likely to show. Here are some of the
particulars. In dealing with efforts to obtain compensation from
governmental entities, the first puzzle is why the primary action takes
place at the federal level. Here the obvious culprits were the Southern
states who practiced slavery until 1865 and perhaps some of the Northern
states which had abolished it at some earlier time. With respect to
claims against the states, an obvious point is that we do not have to
enmesh in struggles those states that entered the Union only after 1865
and thus had no part in any of the earlier practices (except perhaps as
territories, which is a complication that I shall happily skip). But
here it takes a major effort to remove any of the symbols of the old
confederacy, and it seems likely that resistance to any reparations
program will be the fiercest in those situations where the case for
action is likely the strongest. It is, however, easy to see that those
who still bear grudges for the "War of Northern Aggression"
will be ill-disposed toward such claims, while the recent arrivals to
these states will think it odd that they are taxed for actions done by
others long before they arrived. The situation will get only more
complicated because other groups that believe that they have fair
grievances, such as for the horrible treatment given to Chinese
immigrants to the United States, will wonder why they are classified as
wrongdoers and not victims. It is just not possible to achieve these
efforts one state house at a time.
So we think about nationwide claims, but these too are in turn subject
to real difficulties. Over 300,000 northerners, many of whom were black,
were killed during the Civil War in the successful effort to end
slavery. Their descendants could think that they have paid reparations
in blood and do not wish to go further. Next to them stand vast numbers
of individuals who regard themselves as wholly unrelated to the wrongs
in question and are asked to foot some fraction of the bill, while their
own grievances remain largely unredressed. Such is the difficulty
whenever a claim to reparations appeals to some principle of vicarious
liability. All claims for vicarious liability necessarily affect
individuals who were not responsible for the wrong in question: think
only of the operation of the law of vicarious liability in tort. But in
many cases vicarious liability is tolerated on the ground that the
liability in question has some efficiency justification, such as the
reduction of accidents that would otherwise take place. Vicarious
liability is often approved because it eliminates the need to prove the
negligence in hiring or supervision that was present in the particular
case. But here there is no efficiency peg on which to hang the
reparations claim, so that hordes of indignant taxpayers will rise
forward asking, "why should my tax dollars go to compensate for
wrongs that I did not commit?"
The second problem arises on the plaintiff side of the equation: Who
should get the dollars in question? Any state-wide program is haunted by
the problem of migration, which makes it likely that much of the cash
would go to the wrong people. But even at the national level, the
situation is a lot different from when Bittker wrote about these matters
back in 1973. There have been generalized programs of affirmative action
and special education, so that the open wound left by Plessy has healed
somewhat, except in the eyes of those who are determined to keep any
scab from forming. A program of reparations could easily take into
account collateral payments, which is done of course in connection with
the 9/11 compensation program. The United States has committed huge
remedial resources for affirmative action programs and for general
social welfare programs to aid the needy, and there is no doubt that a
substantial fraction of those expenditures have gone to help individual
African Americans. Do these programs count as reparations when they were
originally understood as social welfare measures? Do they count as a
credit against any reparation claim that could be asserted? The answer
is hard to say, one way or the other. But unless someone comes up with a
convincing explanation of why all the positives since 1954 should be
disregarded, the claims for reparations will stall on the obvious ground
that many political steps have already been taken in that direction. It
would be a tragedy of national proportions if claims for reparations to
all or some blacks were to interfere with other programs that tend in
the same direction but lack such a divisive social quality. There is too
much water over the dam for this reparation claim to have any traction,
even in a Democratic administration. There is much that could be done in
individual cases, such as when President Clinton apologized to the human
subjects who were mistreated at Tuskegee. But the most likely upshot is
that the arguments for reparations will be used as bargaining chips to
maintain the level of affirmative action programs that were found to
meet a compelling state interest in Grutter v. Bollinger.
The next question is whether there is any chance that reparations claims
could be addressed to private parties. Here it is an open secret that
just about every major private institution in the United States fears
the tarnish to its good name that comes from a credible assertion that
it is racist. I think that corporations are often so timid in how they
proceed on these questions because they fear that any revelation of
improper conduct will result in a massive loss of good will and
increased levels of regulation from Congress. They will not be willing
to undertake mea culpas that look to the past and ignore all that they
have done on affirmative action and similar topics for the last forty or
so years. I do not think that we should ask the various corporate
defendants who were unsuccessfully sued in African American Slave
Descendants to make endless mea culpas, for to do so is to start down a
road that has no endpoint at all. In addition, I don't think that it
will be easy to shame these corporations into making such declarations
in the absence of specific proof of recognizable wrongdoing to
identifiable persons. The most that can be expected are bland
declarations that X company has been a good corporate citizen that is
responsive to African American interests in the communities that it
serves. But we get that right now, even from Wal-Mart. The upshot is
that the reparations campaign will continue to sputter along. It may
generate a few more contracts, jobs, and grants than before, but it will
not crystallize into any political groundswell.
The situation with Brown University and its striking initiative is quite
different. Non-profit organizations with liberal constituencies and
University Presidents can do things that larger corporations must shy
away from. In my view, Brown is wholly within its rights as a private
institution to conduct whatever internal investigation that it chooses
into its own past and to initiate whatever corrective program that it
chooses. It is all the more admirable because this particular move is
not made in response to any external efforts. I am happy, however, that
as a member of the faculty at the University of Chicago, founded in
1891, I will not have to face the prospect of such a hearing. My fear is
that such efforts will come to little good.
The first point to note is that the initiative starts on the wrong foot.
The emphasis is too introspective. Ruth Simmons may be worried about
explaining to herself that her great-grandparents were slaves. She
should relax, or at least keep Brown out of it. The true story,
moreover, is all to the good, for it highlights the enormous capacity of
the United States to correct for its past wrongs through a tortuous
political process. How many other nations can claim that members of a
despised minority of one generation can see their great-grandchildren
rise to join its social elites? One only hopes that the Brown program
will give due credit to that enormous transformation as part of its
larger engagement with the issue. But here I fear that this will not
happen. The announcement made to the Brown community notes that
President Simmons asked the committee "'to organize academic events
and activities that might help the nation and the Brown community think
deeply, seriously, and rigorously about the questions raised' by the
emerging national debate over slavery and reparations." It notes
further that "[a]t the time of Brown's founding, Rhode Island was
the epicenter of the North American slave trade," which seems odd
given the prominence of Charleston, South Carolina in that business in
1764, the year of the founding.
It is fine to sponsor lectures on an issue that should be discussed and
debated anyhow. But the entire committee process suggests that Brown is
to some extent complicit in these activities and ought to do something
to purge itself of the wrong. To me, that course of action is a mistake,
for the business of universities is teaching and research, and I just
don't believe that actions that concentrate on the Rhode Island slave
trade will have such results. The great fear is that the efforts at
absolution will magnify the relative level of wrong and understate the
powerful forces at Brown and elsewhere that opposed slavery in all its
forms and worked fearlessly and with great effort to stop its
activities. It is worth remembering that there was no single national
position on slavery during the period of its existence. In our efforts
to give prominence to the institutions that supported slavery, there is
the danger that we shall overlook the individuals who were able to bring
the issue to a halt.
So why do we have these efforts at self-examination? Here I think that
they say as much about the present as they do about the past. Until the
passage of the Civil Rights Act of 1964, the Civil Rights Movement
marked the single most heroic achievement of the American past. Its
great accomplishment was to make sure that all individuals had equal
rights and liberties under law. That is a result that can be applauded
by people of all political persuasions, and it does us well to remember
that it took the better part of two centuries to end practices that were
unalloyed disasters. But since 1965 the Civil Rights Movement has
suffered from "the March of Dimes" problem. Once you have rid
the nation of polio, what do you do for an encore? The civil rights
equivalent is that the fall of segregation ended the struggle against
obvious human rights violations. In its place came complex debates over
antidiscrimination laws, affirmative action programs and the like. The
old allies could no longer hold together the coalition, for some people
believed in the colorblind principle and opposed affirmative action,
while others (like me) believed in the importance of liberty and private
voluntary associations, and accepted affirmative action but were hostile
to the enforcement of many of the civil rights laws as an unwarranted
limitation on freedom of contract. Brown, it should not be forgotten,
took a heroic but futile role in its modest attack on Title IX,
involving matters of sex discrimination in interscholastic sports.
Against this fractured background, we can see in the movement for
reparations more of a political than a financial cause. It is an effort
to reinvigorate the old struggle for civil rights by appealing to an
issue on which it is possible once again to assert a profound moral
unity. But this campaign to relive the present through the past will
surely fail. We do not face slavery or segregation. There is no support
anywhere in this nation for a return to either practice. The effort to
place reparations front and center ignores that time has shifted the
locus of our current concerns to a new set of issues that will not be
resolved by reliving the horrors of an early generation in some
collective or official capacity. We have to live life going forward. We
cannot make collective amends for all the wrong in the past. But we can
create new and unnecessary hurts by trying to remedy past wrongs. A
divisive campaign for reparations will undercut the efforts that we all
want to make a stronger, more vital, more productive and more caring
nation.
[1]. James Parker Hall Distinguished Service Professor of Law University
of Chicago Law School, Peter and Kirsten Bedford Senior Fellow, The
Hoover Institution
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