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Vernellia R. Randall
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Robert Westley

excerpted from:  MANY BILLIONS GONE: IS IT TIME TO RECONSIDER THE CASE FOR BLACK REPARATIONS? , 40 Boston College Law Review 429-476 (1998) (citations omitted)

Editor's note: This article has over 170 footnotes. The footnotes have been edited out for presentation in this forum. I encourage you to see the original article for not only the scholarly documentation but the extensive explanations that Professor Westley  provided in his footnotes.

This final part of the argument for Black reparations addresses the nettlesome objection to reparations based in concerns about distributive justice. Doctrinal objections to reparations rooted in the complex question of the identification of victims and perpetrators often serve as a proxy for concerns about re-distributive fairness. Distributive justice will not uphold the status quo in which the privileged benefit from past wrongs committed by others. When, moreover, those wrongs were committed with the assistance, support, or acquiescence of government, a claim for redress is appropriately directed to the government. However, any redress awarded by government to victims of group oppression will inevitably be to some extent overinclusive and underinclusive. In this respect, I contend, Black reparations resemble affirmative action, but the arguments in favor of reparations are more compelling than those in favor of affirmative action as a form of redress. In the course of my argument for a plan of group reparations, I consider the ways in which Black reparations avoid some of the pitfalls and drawbacks of affirmative action. Finally, I conclude that Black reparations should be considered a prerequisite to civil equality.

A. Redistributive Fairness and Black Reparations

In arguing for reparations to Blacks on the model of Wiedergutmachung, and drawing upon the precedent of the Civil Liberties Act of 1988, several issues of redistributive fairness must now be faced squarely. Both the Jewish and the Japanese-American experiences contain features that diverge from the reality of Blacks. From the Japanese and Jewish experiences it is clear that the courts are an inappropriate body before which to submit a claim for reparations. Moreover, even though reparations were paid to Japanese Americans on the basis of a group criterion, each eligible claimant received an individual payment. For their part, Jews received both individual and group compensation from the West German government.

The problem of who legitimately represented the material claims of Japanese Americans and Jews was settled in two different ways. In the case of the Japanese Americans, it was settled by structuring the legislation so that individual claimants were compensated. In the case of the Jews, it was settled by structuring the agreements so that individuals were compensated, and a recognized Jewish state, the government of Israel, was compensated on behalf of the group. Because Israel existed as a state, Jews were prepared to accept nonmonetary compensation in the form of goods and services.

The questions raised by the claim of reparations for Blacks from the standpoint of redistributive fairness are what form should reparations take, and what amount of overinclusiveness and underinclusiveness should a plan for Black reparations permit.

1. A Plan for Group Reparations

Because it is my belief that Blacks have been and are harmed as a group, that racism is a group practice, I am opposed to individual reparations as a primary policy objective. Obviously, the payment of group reparations would create the need and the opportunity for institution-building that individual compensation would not. Additionally, beyond any perceived or real need for Blacks to participate more fully in the consumer market--which is the inevitable outcome of reparations to individuals--there is a more exigent need for Blacks to exercise greater control over their productive labor--which is the possibility created by group reparations.

Most of the earlier catalogued disabilities that Black people face in contemporary America are traceable to the economic question. Blacks are unemployed or underemployed because they have insufficient Black industries to turn to for jobs when white-controlled industries discriminate against them. Black business is undercapitalized and dependent on government because Blacks have no strong financial institutions willing and able to invest in their development. Blacks are uneducated and undereducated because they cannot, as a group, afford the cost of quality education. For the same reason, inability to pay, Blacks suffer from poor quality health care or no health care at all. The Black image in the white mind cannot be changed in a direction that Blacks would prefer, so long as Blacks do not exercise significant control over the media that produce, package and market representations of Blacks. Each disability, from failure to exercise fully the franchise, to homelessness, poverty, disease, and occupational disadvantage, has an economic component and admits (at least partially) of economic solutions. But the security of these solutions depends on group reparations.

It is one of the aims of this inquiry to demonstrate that Blacks are a cognizable group for purposes of recognition of their rights as a group and group redress. Thus, the question of group status is one which cannot be answered simply. The irony posed by the very question of Black national group status is that in ordinary social and political discourse, Blacks are treated as a group for every purpose other than rights-recognition. Even as we profess the values of colorblindness, it is common and accepted usage to maintain a catalogue of "racial" firsts, failures, accomplishments and defects. The contradiction is neither accidental nor a remnant from an earlier period of "race" consciousness.

None of this is to say that the question of Black national group status is an easy matter to resolve. Ideally, however, one could settle the problem of legitimate representation for purposes of obtaining group reparations through, first of all, seeking the endorsement and support of established Black organizations, and secondly, through a plebiscite of intended beneficiaries. Given the current conditions under which the majority of Black people live, a plebiscite would be effective only if the work of educating the masses were carried out with meticulous care. Blacks, and whites, desperately need to understand the basis of the claim for group reparations, the historical precedents, and the future potential of a successful campaign.

On the issue of accepting nonmonetary compensation, it must first be pointed out that, in a sense, that is what affirmative action has been about. Affirmative action, by providing Blacks with educational and employment opportunities that they would not otherwise have due to white racism, "compensated" Blacks for the injustices they suffered. This sort of nonmonetary compensation is unacceptable for the following reasons: 1) many whites and some Blacks believe that affirmative action is a "hand-out" and not compensation, thus perpetuating discrimination against all Blacks, and not just those who benefit personally from affirmative action programs; 2) very few Blacks actually benefit personally from affirmative action, thus all Blacks are not compensated; 3) affirmative action, by its nature, must ultimately be administered by a judiciary which increasingly believes that affirmative action is "reverse discrimination," un-Constitutional if not narrowly-tailored to redress specific acts of discrimination by identified violators, and furthermore, that rights are (or should be) individual, and that "race" is the wrong basis on which to assign benefits and burdens under the law; 4) affirmative action subjects Blacks participating in it to Pettigrew's "triple jeopardy" threat; 5) the fact that affirmative action is out of line with mainstream white American values means that politically it could not be maintained for a long enough period to compensate Blacks adequately; 6) affirmative action is, or is intended to be, meritocratic; 7) affirmative action, in most cases, is discretionary, situational and sporadic, not uniform and systematic.

Compensation to Blacks for the injustices suffered by them must first and foremost be monetary. It must be sufficient to indicate that the United States truly wishes to make Blacks whole for the losses they have endured. Sufficient, in other words, to reflect not only the extent of unjust Black suffering, but also the need for Black economic independence from societal discrimination. No less than with the freedmen, freedom for Black people today means economic freedom and security. A basis for that freedom and security can be assured through group reparations in the form of monetary compensation, along with free provision of goods and services to Black communities across the nation. The guiding principle of reparations must be self-determination in every sphere of life in which Blacks are currently dependent.

To this end, a private trust should be established for the benefit of all Black Americans. The trust should be administered by trustees popularly elected by the intended beneficiaries of the trust. The trust should be financed by funds drawn annually from the general revenue of the United States for a period not to exceed ten years. The trust funds should be expendable on any project or pursuit aimed at the educational and economic empowerment of the trust beneficiaries to be determined on the basis of need. Any trust beneficiary should have the right to submit proposals to the trustees for the expenditure of trust funds.

The above is only a suggestion about how to use group reparations for the benefit of Blacks as a whole. In the end, determining a method by which all Black people can participate in their own empowerment will require a much more refined instrument than it would be appropriate for me to attempt to describe here. My own beliefs about what institutions Black people need most certainly will not reflect the views of all Black people, just as my belief that individual compensation is not the best way to proceed probably does not place me in the majority. Everybody who could just get a check has many reasons to believe that it would be best to get a check. On this point, I must subscribe to the wisdom that holds, if you give a man a loaf, you feed him for a day. It is for those Blacks who survive on a "breadconcern level" that the demand for reparations assumes its greatest importance.

2. The Overinclusiveness and Underinclusiveness of Black Reparations

Just as affirmative action has been criticized by some for rewarding undeserving middleclass Blacks at the expense of underclass or poor whites, a plan for Black reparations could be attacked on the ground that Blacks who enjoy relatively privileged and discrimination-free lives would benefit at the expense of underprivileged whites and nonBlack nonwhites. This criticism raises the issues of overinclusion and underinclusion to show that a valid concern of redistributive fairness is not satisfied in a remedial scheme based on the equality principle that excludes any segment of the poor or underprivileged and includes any segment of the privileged.

This criticism substitutes class status rather than racial group status as the proper basis for remediation. One difficulty with this approach is racially identifiable class stratification, with Blacks disproportionately absent from and whites overly represented among the privileged classes. Racial group status, therefore, cannot be simply shoved aside as irrelevant to concerns about equality among economic classes. Moreover, the class-over-race approach to redistributive fairness ignores that the central claim of Black reparations is redress for exploitation through government sanctioned white supremacy. The claim is one of entitlement, not need.

Nonetheless, it would be undeniably troubling if a relatively privileged group insisted on pressing its entitlement claims in a context in which the underprivileged and truly disadvantaged would have to pay. We can imagine a scenario in which a more powerful social group unjustly exploits a less powerful group, and then later finds itself in a less advantageous economic position than those who had been wronged in the past. Perhaps those who had been wronged, through their own industry and efforts or by windfall, managed to surpass the achievements of those who had been their oppressors. A valid claim for redress might exist among the newly prosperous group against their former exploiters, and yet it might seem unjust to pursue the claim. Because of the class differences, redress may impair the achievement of social equality between the two groups in a society where equality was a normative value.

The problem of overinclusion within the beneficiary group in a plan for Black reparations hardly approaches the level of a threat to the values of social equality among groups. Nor would a plan for Black reparations that was marginally overinclusive in the sense that some are compensated who suffered no harm seriously impair the ability of society to achieve social equality. On the contrary, the goal of social equality is enhanced when the beneficiary group is also a group such as Blacks that suffers continuing economic subordination despite advances made by some individuals.

Overinclusion within the group who must pay reparations also presents problems of the troubling but not irresolvable variety. Some might object that their ancestors had nothing to do with enslavement of Blacks or actually opposed racism and discrimination. Moreover, if reparations are drawn from general revenue, beneficiaries who are also taxpayers will pay a part of their own redress. From the standpoint of redistributive fairness, this may seem unjust. On the other hand, given the near impossibility (because of administrative costs) of obtaining redress only from those who perpetrated racism and exploitation, the focus of reparations doctrine needs to be on the role of government. This was the case with respect to both Japanese and Jewish reparations.

Reparations to Blacks is an obligation of the American government for its role in slavery and the violation of Black rights. Government obligations are paid with taxpayer funds. Taxpayers do not typically have a right to pick and choose among specific governmental expenditures they wish to support; nor should they. In order to preserve government at all, policymakers must be allowed to make allocation decisions in the best interest of their constituents and society as a whole. In my view, the alternative inexorably leads to free rider dilemmas and social fragmentation or immobilization. Thus, Black reparations, as with other government obligations, may justly be paid out of general revenue consistently with redistributive fairness.

The class-over-race approach to redistributive fairness also raises the issue of underinclusiveness. If Blacks receive reparations for wrongs done to them and their ancestors, shouldn't other poor and underprivilegedgroups, including some white ethnic groups, also receive reparations? This question becomes an objection to Black reparations when it suggests either that America has too many victims to compensate them all, and therefore should not compensate any, or that Black reparations could be paid only at the expense of harming the nonBlack poor. In other words, the former assumes zero balances and the latter zero sum.

The basis of the claim for Black reparations is not need, but entitlement. Need is not irrelevant, but it is by no means central to the claim. Reparations as a norm seeks to redress government-sanctioned persecution and oppression of a group. In that regard, it has been a workable norm for groups other than Blacks. Compensation of such groups need not be a zero balance endeavor given the variety of compensatory possibilities and circumstances to which groups seeking redress respond. Sovereignty, land, money transfers, tax breaks, educational scholarships, and medical and housing subsidies all lie within the compensatory arsenal of government. Their extensive use outside the context of reparations belies the assertion that their implementation within the context of reparations would overburden national revenues.

Moreover, reparations to Blacks would not inevitably harm the nonBlack poor. Racist exploitation has contributed to the persistence of poverty among Blacks and the unjust privilege of whites. Redressing these harms through Black reparations would help to alleviate part of the problem of persistent poverty. To the extent that poverty remains a problem among nonBlacks and Blacks alike, it is both just and consistent with the equality principle to demand adequate social welfare, equal educational opportunity and access to jobs. Other national goals, like space exploration or defense, may need to be downsized in order to fulfill the moral obligation of social justice.

Recognition of reparations as an enforceable legal norm, available to any similarly subordinated group, upholds justice without placing an undue burden on the valid concerns of redistributive fairness. In addition to its positive deterrent effect, payment of reparations contributes inestimably to the norm of social equality because of how it might change the lives and perspectives of the subordinated. Equal treatment is not a shibboleth but a real possibility. Injustice against groups is not tolerated or rewarded. Opportunity free from stigma and disadvantage is the norm in my country. Discrimination and racism may end. In my view, these effects alone, if realized, make implementation of Black reparations as an enforceable legal norm long overdue.

B. Black Reparations as Precondition to Civil Equality

One final argument may be advanced in defense of Black reparations. The genocidal conditions under which Black people have been forced to live during their tenure in the United States have been ameliorated but not ended by the demand for civil rights. The miserly development of that sorry and treacherous history was highlighted at the beginning of this article. A crucial but seldom considered defect of all civil rights legislation is the fact that it needs to be administered and enforced. Many Blacks (and whites, too) appear to be under some delusion that once Congress passes civil rights legislation, Blacks are protected from discrimination and white racism. Nothing could be further from the truth, as the history of Black Reconstruction clearly shows. Every measure passed by Congress during Reconstruction for the social and political equality of Blacks--with the possible exception of the Thirteenth Amendment--was subverted or made null and void before the turn of the century.

During the heyday of the 1960s Civil Rights Movement, Blacks again received legislation from Congress which, in turn, is being methodically nullified by invidious court opinions. Since President Bush vetoed the Civil Rights Act of 1990, and Congress failed to override that veto, Black people will not begin to get back the civil rights lost during the Reagan administration for some time. A pattern of gain and then loss has unquestionably revealed itself. To attribute this pattern to the fact of administration, is not to overlook or discount other ideological components of legislative failure. It is merely to acknowledge the perverse operation of that time-worn saw: the price of freedom is eternal vigilance.

Civil rights legislating is an open-ended enterprise, with no end in sight so long as such laws must be administered by those whose commitment or resources are seldom great, and enforced against those who are determined to discriminate. I fear that I am correct in supposing that Blacks will always need civil rights legislation, and there will always be "new patterns of racism," that is, until Blacks as a group obtain something approaching economic parity with whites. This, it appears to me, is the precondition of achieving autonomy and respect as a group in the United States. Also, until white people make peace with their racist and exploitative past, they will never accept the responsibility for racism and exploitation, both present and portended.

Each year the government fails to pass Black reparations legislation the debt increases rather than diminishes and the obligation to redress wrongs inflicted on the Black community becomes more difficult to satisfy. Congress' failure even to hold hearings on the need for such legislation may be attributed to selective indifference to Black social justice claims on the one hand and racial antipathy to Blacks on the other. As with the Supreme Court, a ruling majority seems to believe what Justice Bradley articulated over one hundred years ago in The Civil Rights Cases, that: When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected.

As Justice Harlan expressed then in dissent, and we today may acknowledge, "[i]t is scarcely just to say that the colored race has been the special favorite of the laws[;]" and less than twenty years out from slavery, in any event, did not mark the point in Black progress at which equality with whites no longer should have been a national concern. The maintenance of a system in which "any class of human beings" is kept "in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant[,]" marks Justice Bradley's statement as not only unreasonable, but also unjust. It is no less unreasonable and unjust today.

However, for those who long for the millennium in which Black equality with whites ceases to be the American dilemma and becomes the American reality, reparations contain within them at least the promise of closure. The closure afforded by reparations means that no more will be owed to Blacks than is owed to any citizen under the law. This is the effect of any final judgment on the merits. Once reparations are paid, Blacks 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.

 
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