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Kyle D. Logue
Abstract of: Kyle D. Logue, Reparations as
Redistribution, 84 Boston University Law Review 1319-1374, 1319-1324 (
December 2004) (160 Footnotes Omitted)
The most controversial, and most intriguing, remedy sought by proponents
of slavery reparations involves massive redistribution of wealth from
whites to blacks within the United States. This is not to say that
reparations proponents have focused only on racial redistribution. Some
have called for an official apology from the U.S. government. Others
seek the creation of a foundation or institute, funded by U.S. tax
dollars, to be devoted to furthering the interests of African Americans,
including the funding of K-12 educational programs for black children
and the funding of general civil rights advocacy to counteract the
lingering effects of racism in American society. In a relatively new
twist, some state governments have passed laws requiring companies to
disclose the extent to which they or their predecessor companies were
involved in or benefited from the practice of slavery; and some local
governments - notably, Chicago, Los Angeles, and Detroit - have adopted
ordinances requiring companies seeking to do business with the city's
government to disclose any profits they received from slavery. A similar
slavery "accounting" was also one of the remedies sought in
the recent lawsuits brought by slavery descendants against corporations
alleged to have historical ties to slavery. Nevertheless, at the core of
most slavery reparations proposals are calls for either cash or in-kind
transfers from whites to blacks. Such redistributive programs will be
the focus of this Article.
Broad-based racial redistribution would, according to proponents,
provide a measure of compensation to the present generation and perhaps
to future generations of African Americans for the harms caused by
slavery, including the many years of unpaid slave labor. Furthermore, a
white-to-black redistributive transfer would reduce the colossal
inequality of resources between whites and blacks in America. Given the
historic scope of the injustice slavery represents, the potential size
of a fully "reparative" transfer could be astronomical.
Although most slavery reparations proponents decline to suggest specific
dollar estimates of the appropriate transfer, some are willing to
venture a guess. One researcher, for example, focusing on a stolen-labor
measure of harm and using 1790-1860 slave prices as proxies for the
value of unpaid slave labor, calculated a sum of between $448 billion
and $995 billion, which in 2003 dollars would be approximately between
$2 trillion and $4 trillion. By comparison, the entire U.S. government
budget in 2004 is projected to be just over $2 trillion. More recently,
taking a different approach to assessing the social harm associated with
slavery, sociologist Dalton Conley suggested that if all of the present
wealth gap between African Americans and whites were attributed to the
institution of slavery and related injustices, a one-time transfer of 13
percent of existing white wealth would be necessary to eliminate the
black-white wealth disparity entirely. Alternatively, Conley suggested
that a better approach might be to determine what fraction of existing
household wealth is attributable to inheritance from prior generations,
and to use that number to determine the extent to which current levels
of black household wealth lag behind those of whites because of slavery.
Following that approach, Conley arrived at a more modest one-time tax of
3.7 percent of white household wealth to be distributed among African
Americans.
Only the most radical reparations supporters would regard such a massive
wealth transfer as desirable, and few people - perhaps none - would
regard it as politically plausible. Putting aside the discussion as to
amount, the idea itself of a transfer of resources from whites to blacks
is intriguing. What would such a transfer even look like? Perhaps the
most obvious and most controversial possibility would be a program of
direct cash transfers to African American taxpayers funded by federal
tax revenues or, as suggested above, by some special tax on whites.
Indeed such a system is what many slavery reparations proponents seem to
have in mind. That type of racially redistributive cash transfer,
however, is not the only possibility. Once we broaden the notion of what
counts as a program of redistribution, it becomes clear that we already
engage in some degree of racial (white-to-black) redistribution, some of
which is controversial and some of which, apparently, is not. Thus, for
example, affirmative-action programs can be seen as a prominent
real-world example of an explicitly race-based in-kind transfer from
whites (and Asian Americans) to blacks (and some other racial and ethnic
groups, such as Native Americans). Moreover, even transfers that are not
explicitly race-based can be understood as a form of redistribution by
race. For example, because blacks are overrepresented in most inner-city
metropolitan areas, any federal or state spending programs that
primarily benefit the inner city, but that are funded by general tax
revenues would have a racially redistributive effect. Even certain types
of anti-discrimination law can be seen as having a racially
redistributive component, insofar as it such laws result in racial
cross-subsidization of blacks by whites. An example of this would be
laws against racial discrimination in insurance underwriting. The point
here is that broad-based racial redistribution, from all or almost all
whites to all or almost all blacks, can take many forms. One of the
lessons of this Article will be that all of these various program-design
issues must be taken into account by those calling for slavery
reparations in the form of white-to-black redistribution.
My main argument is straightforward. First, I contend that some level of
redistribution from whites to blacks - whether paid in-cash or in-kind,
whether explicitly race-based or only implicitly so, and whether labeled
reparations or something else - can be defended on fairly intuitive and
straightforward distributive justice grounds. The idea is that,
according to every empirical study of the issue, African Americans are
on average significantly less well off than whites. Moreover, the
inequality extends to almost every conceivable measure of well-being -
income, wealth, education, employment, health, housing, even life
expectancy. Given this fact, and given especially this country's history
of slavery and segregation, it is not difficult to argue that the
government ought to spend some resources to reduce that inequality.
Although the conclusion is not especially new, the distributive justice
angle has been largely overlooked in discussion of slavery reparations.
Second, I argue that any program to effect racial redistribution or
reduce racial inequality - again, whether labeled reparations or not -
should be informed by the basic lessons of public finance economics, a
field that has long been devoted to the problem of designing real-world
distributional programs. Drawing on that literature, I point out that
the concept of race has three qualities that make it a surprisingly
useful tool, at least in theory, for implementing an egalitarian vision
of distributive justice: (a) race is one of the best predictors of, or
proxies for, overall social and economic well-being; (b) unlike
redistribution with respect to other proxies for well-being, such as
redistribution with respect to income or wealth, redistribution on the
basis of race will not cause labor-market distortions, because race is
relatively immutable; and (c) race is relatively observable. For all of
these reasons, redistribution on the basis of race, at least in theory,
has the properties of a distributively just lump-sum transfer program.
Third, although I do not here endorse any particular racially
redistributive program, I point out the costs and benefits of several
alternative forms that programs of racial redistribution might, and in
some cases already do, take. Included in that discussion are direct cash
transfers from whites to blacks (perhaps administered through the
federal tax system), which would probably be unconstitutional but which
provides an interesting point of comparison. I also discuss a range of
in-kind redistributive programs, from race-based affirmative-action
programs to federal funding of urban housing and educational programs to
certain types of anti-discrimination law, all of which may be
constitutional, depending on their particular design details. One point
of emphasis in the Article is that, although redistributing explicitly
on the basis of race may have certain advantages, such as the absence of
labor distortions that accompany income or wealth redistribution and the
increased precision of the redistributive transfers, there are
disadvantages that have to be considered as well, such as the difficulty
of defining and policing racial categories for the purpose of
administering a redistributive program. In addition, it may ultimately
be that there are other proxies for well-being besides race (such as
geography) that can be used to produce a distributively-just lump sum
transfer, but those systems will inevitably have drawbacks as well.
Before launching into my primary argument regarding the use of race in
redistributive programs, I should point out that my focus on reparations
as redistribution is a departure from the general thrust of the slavery
reparations literature. Instead, most reparations scholars and activists
view reparations as an issue of corrective justice, of rectifying a
historic wrong. That vision of reparations, insofar as it builds on the
notion of corrective justice that is employed in the private law
context, is derived from an analogy to tort law, which says that if
person A wrongfully harms person B, A must pay compensation to B. That
view of slavery reparations has considerable appeal. Much, probably
most, of the inequality between blacks and whites today, which I
describe in some detail below, is doubtless attributable directly or
indirectly to the historical injustices of slavery, Jim Crow, and
subsequent discrimination. And it is certainly understandable that
reparations proponents would seek to link racial redistribution directly
with those past injustices. To ignore that link would itself be an
injustice, as well as perhaps a tactical political (and perhaps legal)
error. Nevertheless, because of the amount of time that has elapsed
since the end of slavery and the difficulty of assigning blame today for
what happened hundreds of years ago, a program of slavery reparations
that involved large-scale redistributive transfers from whites to blacks
would not fit neatly within the conceptual category of corrective
justice. Again, I am not arguing for ignoring the past. To the contrary,
as will become clear, my distributive justice argument has an important
historical component. Rather, my primary argument is that whether and
how society ought to structure a slavery reparations program depends on
what such a program is expected to achieve. The goal of slavery
reparations - whether it is to achieve distributive justice by reducing
the substantial inequalities between whites and blacks, or to achieve
corrective justice, which requires identifying specific wrongdoers and
assigning them blame for the harms caused by slavery - will have
important implications for the design of the program.
The Article proceeds as follows. Part I describes the private-law roots
of corrective justice and explains how the move from paradigmatic
private-law setting (the simple tort or contract case) to group-based
harm saps the intuitive strength of the corrective justice rationale.
Building on this conclusion, Part I then points out some of the
conceptual and practical difficulties with applying the corrective
justice rationale to slavery reparations that take the form of
broad-based transfers from whites to blacks. Next, Part II argues that
some level of white-to-black racial redistribution can be justified on
the basis of a modest (and fairly conservative) version of egalitarian
distributive justice, although I make no claim as to the appropriate
amount. Part III emphasizes the lump-sum (and therefore relatively
efficient) nature of racial redistribution, discusses some of the
alternative forms that racial redistribution might take, and highlights
some of the costs and benefits of those alternatives. The final section
in Part III also responds to some of the most obvious objections to the
idea of racial redistribution of any kind. As I conclude there, it may
well be that the expressive or political problems associated with racial
redistribution - such as the hostility that might be created among
non-black citizens who would be required to pay the cost of the program
and the expressive harms experienced by blacks who regard the program as
demeaning - would outweigh the social benefits of such a program. That
is an issue, I argue, for voters to decide. Indeed, insofar as
government programs that implicitly engage in racial redistribution
already exist, the voters have already decided. The question is whether
more, or less, should be done. Part IV then concludes.
[1]. Professor of Law, University of Michigan Law School. |
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