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Kim Forde-Mazrui

 excerpted from: Kim Forde-Mazrui, Taking Conservatives Seriously: a Moral Justification For Affirmative Action And Reparations , 92 California Law Review 683-753, 711-741 (May, 2004) (225 Footnotes omitted)

 

This Part considers potential objections to the case set forth above for ascribing responsibility to present society for past discrimination. As described in Part I, the elements of a claim based on corrective justice are that one has, by wrongful conduct, caused harm to another. Part II.A examines the initial elements of the case, specifically discussing whether the wrongful conduct described in Part I may be attributed to present society. Part II.B considers whether, assuming a causal connection between present conditions and past discrimination, the intervention of black people's choices and the passage of time should nonetheless serve to absolve society of responsibility.

A. Identifying Current Society with Past Discrimination

Conservatives may raise a number of objections to the claim that American society today is implicated in the wrongful discrimination practiced by past generations. First, society's past discrimination was arguably not wrongful in light of prevailing norms. That is, it may be unfair to blame society, in hindsight, for practices that were legal at the time and widely perceived as morally permissible. Second, it is arguably unfair to attribute responsibility to the nation as a whole for the slavery and discrimination practiced by only some private and governmental actors. Third, whatever responsibility past society bore for the discrimination practiced under its watch, present society did not participate in such discrimination. These objections suggest the difficulties in ascribing responsibility to present society for the practices of times past. Although such concerns may well be dispositive to some, the following sections suggest reasons to remain open to the possibility of intergenerational, collective responsibility.

1. The Wrongfulness of Slavery and Segregation

The first objection is that, because past society believed discrimination to be acceptable, it would be unfair to blame society for acting wrongfully. During the period in which state and federal laws sanctioned slavery and discrimination, a majority of Americans presumably believed these practices were not immoral, at least not intolerably so. To hold now, in hindsight, that society committed immoral acts would impose on society an obligation based on conduct that has only become widely accepted as immoral after its occurrence. It is arguably unfair to blame society based on moral standards not yet established at the time of the purported wrongdoing. As corrective justice is premised on injustice, the claim that there was no injustice strikes at the heart of the case for societal responsibility.

While this objection has some intuitive force, a number of observations undermine it. First, it cannot necessarily be inferred from the legalization of slavery that a majority of the population, much less the entire nation, believed the institution morally justified. Blacks, who comprised a substantial, disenfranchised portion of the population, did not support slavery. Were the views and votes of blacks on slavery counted, a majority of the population may have opposed slavery. Consider also that blacks comprised a particularly significant percentage of the population in those states that practiced slavery. Had blacks been able to vote, these states or Congress might have abolished slavery well before the Civil War.

Second, even if a majority of whites at least tacitly acquiesced in slavery, the nation had considerable reason to believe that its protection of and participation in the institution was morally problematic. Throughout the slavery period, abolitionist whites and blacks publicly emphasized the wrongfulness of slavery and racial subordination and the inconsistency of these practices with the egalitarian principles upon which the nation was founded. Indeed, the Founders' recognition that blacks were "Persons" and that slavery raised serious moral questions is reflected in their studious avoidance of any reference to "slave" or "slavery" in the Constitution, despite provisions squarely respecting the institution and the participants therein.

Third, although the rights of blacks to be respected as persons under the Constitution may have been in doubt before emancipation, the Civil War Amendments formally guaranteed blacks citizenship, as well as civil and political equality. The societal discrimination perpetrated against blacks for another century thereafter was thus undertaken not only against a background of moral notice, but in violation of the letter of the Constitution. Society thus cannot plausibly claim unfair surprise at being charged with having violated the moral rights of blacks for the hundred years following the Civil War.

Fourth, that a majority of society believed slavery and discrimination were morally permissible only negates society's responsibility if the morality of racial oppression depends solely on the views of the society that practices it. Such a position would immunize a societal practice against moral criticism whenever the society that supports the practice believes it morally tolerable. The Nazi Holocaust would not be wrong, for example, if German society endorsed or acquiesced in it. Such a defense would hardly negate the evil character of that murderous episode. Moreover, present-day opponents of affirmative action do not rely for the validity of their position on current society agreeing that such policies are wrong. Rather, they contend that racial preferences violate fundamental principles of colorblind equality--principles that were violated by past discrimination against blacks and which ought not again be violated by present discrimination against whites.

Finally, if the legal toleration of a practice protects it from moral condemnation, then affirmative action policies cannot be judged immoral. Forty-seven of fifty states permit affirmative action under state law, and the federal government permits, indeed requires, affirmative action in a variety of contexts, including higher education and government contracting. Accordingly, if legal abolition is required before a societal practice can be deemed immoral, then opponents of affirmative action must await a substantial change in American public policy before challenging affirmative action as immoral and unconstitutional. In any event, as previously noted, conservatives have not waited for such developments, but instead argue that affirmative action is inherently immoral, and have made such arguments since the late 1960s and 1970s, when national support for affirmative action was at its height.

The claim that morality is no more than a question of popular consensus is not without adherents. However, for those who believe that morality is more enduring than current public opinion--as conservatives generally do--and that crimes against humanity transcend time and national borders, slavery and discrimination against black people did not become wrong only when American society came to recognize it as such. The American institutions of slavery, segregation, and discrimination were egregiously wrong and inhumane from their inception.

President George W. Bush, a prominent conservative and national leader, defends the fairness of judging slavery as unjust in hindsight. Despite America's acquiescence in the institution of slavery during its practice, Bush condemned slavery as violating the "natural rights of man," and further observed:

At every turn, the struggle for equality was resisted by many of the powerful. And some have said we should not judge their failures by the standards of a later time. Yet, in every time, there were men and women who clearly saw this sin and called it by name. We can fairly judge the past by the standards of President John Adams, who called slavery "an evil of callosal [sic] magnitude." We can discern eternal standards in the deeds of William Wilberforce and John Quincy Adams, and Harriet Beecher Stowe, and Abraham Lincoln. In Bush's view, "[t]he rights of African Americans were not the gift of those in authority." Rather, "[t]hose rights were granted by the Author of Life, and regained by the persistence and courage of African Americans, themselves." Those who failed to recognize the injustice of slavery had lost sight of divine truth: "Christian men and women became blind to the clearest commands of their faith and added hypocrisy to injustice. A republic founded on equality for all became a prison for millions." Thus, for President Bush at least, the wrongfulness of slavery transcends the moral choices of society at a particular point in history.

2. The Collective Responsibility of Past Society

Assuming past societal discrimination was immoral, there remains the difficulty of attributing responsibility for the sins of past generations to current society. The first objection to such an attribution is that America as a whole was not responsible for individual acts of past discrimination. The second, discussed in Part II.A.3, is that the responsibility of past society does not pass to the current generation.

For purposes of this argument, the term "societal discrimination" refers to the myriad individual instances of discriminatory decisions and actions by different individual actors. Of course, not all Americans participated directly in slavery or discrimination. By the early nineteenth century, northern states had abolished slavery, and only a minority of white southerners owned slaves at the time of emancipation. Abolitionist whites opposed slavery, and others had little or no direct involvement in the institution. Similarly, after emancipation, many Americans opposed or did not support segregation or other discrimination against blacks. One might argue that those who actually practiced slavery or discrimination bear responsibility for their individual conduct, but those members of society who did not engage in such discrimination do not share their remedial responsibility. If corrective justice imposes a moral obligation only upon those actors who perpetrated wrongful acts, then only those individuals who practiced slavery or discrimination are morally responsible for correcting any remaining effects of past discrimination.

Indeed, it may be questioned whether American "society" is a collective entity to which any obligation may be ascribed. To be sure, American law routinely imposes liability on collective entities, such as governments, corporations, churches, and other institutions, but such entities have a cognizable structure and locus of decision making. American society, in contrast, refers to the mass of American people, a disconnected collection of different actors, including the federal government, numerous state and local governments, and private individuals and organizations. It is thus questionable whether society can meaningfully be described as a single actor responsible for past discrimination or its effects.

Focusing on the American people as a collective wrongdoer is admittedly less straightforward than focusing on the federal government, the actor to which many reparationists attribute primary responsibility for past discrimination. Notwithstanding that American society is a more amorphous concept than the federal government, it is a more accurate and appropriate locus of responsibility for past discrimination. This section first explains how American society as a nation is a collective entity capable of incurring obligations chargeable to the entire citizenry, and then considers the extent to which America is collectively implicated in past discrimination.

The idea of the American people as a nation, distinct and superior to the federal government, is a fundamental precept of our constitutional order. "We the People" established the United States through the ratification of the Constitution. In theory, the American people are the principal and the federal government is the primary agent through which the people govern. We the people elect the President and Congress as representatives, and when the federal government acts, it does so not exclusively on its own behalf, but on behalf of the national community. For example, in apologizing and making compensatory reparations to Japanese Americans for the relocation and internment many suffered at the hands of the federal government during World War II, Congress expressed that it was doing so "on behalf of the people of the United States."

As the congressional reparations example also demonstrates, the collective character of our nation extends to the fulfillment of obligations incurred on the nation's behalf. We exact taxes from the American people, for example, and compel American soldiers into mortal combat in fulfillment of collective obligations arising from commitments to ourselves and to other nations.

The American people not only act in a collective capacity, but also identify as such. We identify as Americans and take responsibility for events and endeavors of national significance, such as war and the space program. Indeed, as Meir Dan-Cohen argues, with respect to such events "so prominently linked to American identity . . . [d]enying responsibility for all such objects and events is tantamount to repudiating one's American identity altogether." Our collective identity, moreover, is not limited to activities directly involving the federal government. We take pride as Americans, for example, in the success of American athletes in international competitions and in the outstanding contributions by Americans to knowledge and peace. Further, we are collectively moved to action on behalf of American lives endangered by disasters, natural and human-made. It is also worth noting that, in the name of patriotism, conservatives emphasize collective obligations derived from our national identity as Americans. Examples of controversies in which conservatives stress obligations of patriotism and national identity include flag burning, the pledge of allegiance, and most recently in rallying support for the President and our troops in the war against Iraq. In short, America as a people has a collective identity with respect to events that implicate the nation as a nation, a people not of different states and localities, but of a collective whole--America.

It would seem to follow from the nature of America as a nation that its members may fairly be charged collectively for the cost of fulfilling national obligations, whether or not every member bearing the cost personally participated in the practices upon which the nation's obligation is based. The claim here is simply that membership in a collective entity brings with it certain benefits and costs, rights and obligations, as incidents of membership. A principal reason for forming and joining a collective group is to gain certain advantages not available to disassociated individuals. The consideration for such advantages gained from group membership is that burdens incurred or experienced by the collective group may fairly be shared by the entire membership. A member cannot fairly claim the right to retain membership in the collective entity, including any benefits flowing therefrom, while denying any share in the burdens of membership.

To illustrate, consider government reparations to victimized groups, such as those paid by the United States to Japanese Americans and their descendants, or those paid by Germany, with the United States' encouragement, to Holocaust survivors and their descendants. The vast majority of American and German taxpayers bearing the cost were not personally responsible for the governmental crimes committed during World War II. Similarly, a corporation may be held liable for corporate acts predating the tenure of current officers, and the corporation's shareholders may have to bear the cost of corporate liability, even if they were not shareholders at the time of the acts giving rise to liability. Membership in a collective group, including the American people as a nation, involves burdens as well as benefits. It should therefore not stand as a bar to imposing the cost of societal obligations on the American people that not all its members participated in or endorsed practices for which society as a whole bears collective responsibility.

Given that collective responsibility may sometimes attach to American society, the question is whether past societal discrimination, such as slavery and segregation, sufficiently implicated the nation as a whole to justify ascribing responsibility to American society for its effects. Certainly those actions taken directly by the federal government may fairly be ascribed to the nation. For example, the relocation of Japanese Americans was authorized by executive order and congressional legislation, and was carried out by the United States military. Such direct involvement by federal governmental actors created an obligation on the part of the American people, an obligation acknowledged and partially fulfilled by congressional reparations. In the case of slavery and discrimination against blacks, to the extent these practices were protected and supported by congressional enactments, federal executive actions, and judicial interpretations by federal courts, the American people as a whole share in the responsibility.

But what of racial discrimination practiced by nonfederal actors? In contrast to the Japanese American relocation, racial discrimination against black Americans involved many more perpetrators than the federal government alone. All levels of government and many private actors in every state practiced discrimination to significant, though varying, degrees. Discrimination was so pervasive that several scholars have described America's subordination of blacks as a caste system. That local government and private actors played a critical role in societal discrimination and its effects arguably undermines an obligation attributable to the nation as a whole.

Indeed, the federal government arguably lacked the capacity to protect blacks from state and private discrimination. For much of America's history, the federal government probably lacked sufficient economic resources to abolish slavery and effectively enforce antidiscrimination laws. Moreover, it appears to have lacked the political support to protect blacks, at least outside the Civil War and Reconstruction period. The federal government also arguably lacked constitutional authority to address racial discrimination, both before and after the Civil War. Before the Civil War, the Constitution protected property rights in slaves. After the Civil War, constitutional federalism constrained the extent to which the federal government could regulate areas of traditional state authority, particularly discrimination by private actors.

Certainly, discrimination by state and private actors was an essential feature of societal discrimination, but the nation as a whole was nonetheless implicated in that discrimination. The legality of slavery and discrimination was a product of constitutional law, its content, enforcement, and interpretation. For example, rather than prohibiting slavery, the Framers intentionally drafted the Constitution to recognize and protect it. Rather than prohibiting private discrimination, or authorizing Congress to do so, the Fourteenth Amendment was intentionally limited to state action. The Constitution is the creation and responsibility of the American people. To the extent the Constitution disables the political branches of government from protecting blacks from discrimination, a fact that may mitigate the individual responsibility of a particular administration, it cannot relieve the nation of collective responsibility. As the fundamental charter of governmental powers and individual rights, the Constitution implicates the people as much as, and arguably more than, individual actions of governmental institutions.

It is not an answer that the Constitution was misinterpreted by the courts to protect slavery, private discrimination, or state-sponsored segregation, or underenforced by the political branches of the federal government. As previously noted, these governmental institutions act on behalf of the nation. Nor is it an answer that the federal government, including the courts, could not protect blacks, given economic and political realities. To the extent the American people refused to fund adequately or to politically support national measures to protect blacks from known and widespread discrimination, the political and economic weakness of the federal government is attributable directly to the American people themselves. Thus, the American people as a nation were implicated by those actions of federal institutions that directly supported discrimination. Further, the nation was implicated in the wholesale, nationwide, intergenerational nature of societal discrimination that found legal protection in the national Constitution. America's history of racial discrimination is, and always has been, "An American Dilemma."

The boundaries of national legal responsibility under international law may provide further insight into the question of national moral responsibility. The United States has constitutionally recognized international law since the nation's origin. Under international law, a nation may bear responsibility for the actions of regional governments and private actors that result in widespread violations of individual rights (including slavery, torture, and genocide) if the nation fails to protect people adequately from such abuses. Indeed, violations of international law by any governmental actors, no matter how local, may be attributable to the nation even if the national government were unaware of or could not have prevented the abuse and even if the governmental misconduct violated national law. It is no defense under international law, moreover, that the constitutional law of a nation prevents the national government from protecting individual rights. Any constraints placed upon a government by the nation's constitution are thus understood by international law as the responsibility of the nation.

Not only does the United States recognize and accept international law generally, it has invoked the specific principles described above in attributing responsibility to other nations, and has acquiesced in their application to the United States. One example was the American hostage crisis of 1979-80, during which staff members of the American embassy in Iran were held hostage by a group of private militants. The United States successfully argued in the International Court of Justice that the acts of the militants were attributable to Iran because Iran's inaction throughout the crisis amounted to a "seal of approval." Moreover, when a mob of private individuals lynched a group of Italian nationals in New Orleans, Louisiana, the United States accepted responsibility for the failure of local authorities to protect the Italians. As a result, the United States voluntarily paid compensation to the government of Italy. More recently, since September 11, 2001, the United States has taken the position on the international stage that nations who tolerate terrorist organizations within their borders are implicated in the wrongdoing of such organizations, and America is prepared to wage war against any such nations who "harbor" terrorists.

The foregoing principles of international law suggest that the failure of the United States to protect black people from slavery and discrimination practiced by state and local governments and private individuals represents a series of commissions and omissions for which the United States is responsible as a nation. America not only knowingly "harbored" slaveowners, segregationists, and other discriminators, it afforded them constitutional and other legal protection. Consistency would seem to require ascribing responsibility to America for the widespread and ongoing discrimination against blacks that defined so much of American history.

The relevance of international law, however, should not be overstated. Principles for resolving questions of national legal responsibility do not necessarily determine questions of national moral responsibility. Yet, to the extent such principles derive from moral judgments about the relationship between nations and persons, or reflect generally accepted reasons for attributing to a nation the acts of regional governments or private individuals, they support the plausibility of the claim that America as a nation is implicated in the societal discrimination endured by blacks in the United States.

3. The Collective Responsibility of Current Society

Assuming past society bore some responsibility for past discrimination, the question remains whether current society bears that responsibility. Skeptics could argue that the society responsible for past discrimination no longer exists. No one alive today owned slaves. And only a small percentage of Americans alive today participated as adults in discrimination during the period in which it received official and widespread support. Thus, it may be unfair to require current members of society to bear responsibility for the wrongs of previous generations. The risk of unfairness is arguably greater when particular individuals must bear the cost of the entire society's responsibility, as in cases where affirmative action results in denied opportunities to those individuals.

Whether America today is responsible for national obligations incurred in the past raises the question of identity through time, that is, whether America is a continuing entity, such that practices attributable to the nation at one point in time are fairly attributable to the nation at a subsequent point in time. As a general rule, provided there has been no official dissolution or reconstitution, a nation continues over time despite turnover in membership. As Jeremy Waldron observes, "a tribe, a nation, or a community . . . [is an] entity that endures over time in spite of mortality of its individual members." America is not a series of different nations from minute to minute, or day to day, as individuals join or depart the citizenry by birth, death, or immigration. Indeed, the very idea that our Constitution binds generations born centuries after its ratification is premised upon the continuity of the nation. Conservatives in particular emphasize the principle that present and future generations of Americans are bound by the original intentions of the Framers. Indeed, conservative-led legal challenges to affirmative action policies rely on the continuing force of the Fourteenth Amendment's commitment to equal protection, a commitment made by the nation over 130 years ago, before any living affirmative action opponent was born.

Given a sufficient period of time, the composition of society changes completely. However, at each point in between, the collective identity of America persists. Nor has there been any event since the Founding that officially dissolved and reconstituted the American nation. The most plausible candidate for such an event, the Civil War, officially preserved America as one nation, producing only amendments to the continuing constitutional charter.

Just as America today is, through a chain of moments, the same America as it was one or one hundred years ago, America today is responsible for its discriminatory practices of the past decades and centuries. As an obligation held today by the nation as a collective whole, the cost of fulfilling it can fairly be charged to current members of American society. That most Americans today were not personally involved in the slavery or discrimination on which the inherited obligation is based is beside the point. Indeed, the nation's present obligation is not properly characterized as "inherited," as the nation that originally incurred the obligation has never ceased to exist. As Vincene Verdun observes, "[s]ociety, unlike individuals, does not have a natural life. The society that committed the wrong is still thriving."

The frequent and persistent complaint that current members of society were not personally involved in past discrimination seems to reflect the fallacious view that societal responsibility necessarily implies personal guilt. The inhumanity of discrimination understandably leads some people, both black and white, to infer from a charge of societal participation that all members of society are or were personally blameworthy for the discrimination. Some blacks who believe in society's responsibility for America's racial history blame all whites as personally responsible for that history. And many of those who recognize the lack of personal responsibility of most whites alive today conclude that current society also cannot be collectively responsible. They are both wrong. If society as a collective entity is morally responsible, then its members may be called upon, as an incident of membership--not personal blame--to share the cost incurred by society in meeting its moral obligations.

Accordingly, to the extent America as a nation is responsible for redressing the effects of past discrimination, the cost of redress is fairly borne by all current members of society. These members include activists in the civil rights movement, descendants of abolitionists, recent immigrants, and even blacks whose lives have been negatively impacted by America's discriminatory past. These blacks are simultaneously entitled to remedial aid from American society because of their status as victims, and obligated to share in the cost of such aid because of their status as citizens. Such a circular consequence also followed from the congressional reparations paid to Japanese Americans, whose taxes contributed to their own compensation.

Finally, a few points ameliorate the concern that particular individuals should not be disproportionately burdened by programs designed to remedy society's collective responsibility. First, such a concern does not negate societal responsibility, but rather counsels restraint in designing remedies to fulfill that responsibility. We indeed should consider who is most acutely burdened by remedial programs, but that should not preclude such programs if the cost to individuals can be adequately minimized or spread among many people. Second, any governmental policy enacted for the collective interest will impose disproportionate burdens on some individuals. A government-sponsored airport or highway, for example, may burden local residents more than others. Similarly, government expenditures to meet particular financial obligations may decrease the funds available for other purposes that would have benefited specific people. For example, to service the national debt, meet military commitments, or provide earthquake relief, Congress may have to spend less on college scholarships. As a result, some individuals may not receive scholarships because congressional funds were directed elsewhere. The potential losers of any public policy should be considered, but the possibility that some people may be burdened should not necessarily bar its implementation.

Moreover, similar individualized burdens are characteristic of conservative-led efforts to make whole the victims of affirmative action. Consider the example of a white applicant denied admission to a public university on grounds of race. The applicant might sue the university for compensatory damages and a court injunction requiring his admission. Any damages awarded in such a lawsuit would be charged to state taxpayers who likely had nothing to do with the discrimination. In addition, an injunction would harm a specific innocent individual because given the delay inherent in litigation, an injunction would likely require admission of the applicant to a class of entering students subsequent to the one from which he initially was excluded because of his race. The applicant's court-ordered admission would thus result in the exclusion of another applicant who bore no personal responsibility for the applicant's previous exclusion, and who was not the student who took the applicant's place in the previous class.

In sum, the case for holding American society responsible for past discrimination depends on the plausibility of recognizing American society as a collective and continuing nation, the obligations of which fairly pass through time and generations. It may also require accepting the injustice of past discrimination independently of whether society believed it morally permissible during its official practice. The claim that present society is responsible for past societal discrimination thus faces difficulties that may be dispositive to some skeptics. However, to the extent the American nation ever acts as a collective people whose obligations extend over time, the societal protection of slavery and discrimination, a widely known institution of national and intergenerational scale, plausibly qualifies as a practice for which the entire nation bears collective responsibility. Whether slavery and official discrimination were immoral when practiced, few, if any, more unjust regimes existed in human history. Those who would leave such judgments to the consensus of the time, however, may hold America harmless, as there can be no obligation in corrective justice without an injustice to correct.

B. Proximate Causation: "Breaking" the Chain of Societal Responsibility?

Assuming the initial elements of the corrective justice case are satisfied--that present society is fairly charged with having wrongfully engaged in past societal discrimination--the next question is whether that discrimination is a morally cognizable cause of the harm that persists today. This Article assumes that actual causation exists, although Part III.A will consider difficulties in precisely measuring and identifying discrimination's consequences. This section questions causation on normative grounds, that is, whether society should be treated as a cause of black disadvantage today in light of the intervention of adverse choices by some black people and the passage of time. Such is the concept of proximate cause, a concept familiar to American law that limits which actions or events that in fact caused certain subsequent effects should be understood as responsible for such effects.

Because the goal of assigning responsibility is achieving justice, the question is whether it is morally just or fair to society to persist in holding it responsible for past discrimination. Two reasons support limiting society's moral responsibility for past discrimination without denying society's causal influence on present conditions. First, many of the problems experienced by blacks today are arguably of their own making, through behaviors such as neglecting parental responsibilities or eschewing academic achievement in favor of unproductive or criminal behavior. If black people are to be respected as competent decision makers, then they, not society, must be held responsible for their choices. Second, too much time has arguably elapsed since America officially sanctioned racial discrimination to hold society responsible for discrimination's attenuated effects. In other words, the past is past, and it is time to move on.

These objections are consistent with corrective justice theory. No account of corrective justice would hold that causation-in-fact is irrebuttably sufficient to establish moral responsibility. It would be unfair to hold a causal agent responsible for all the effects of his wrongful conduct no matter how unlikely or far into the future such effects extend. Actual causation is but a starting point for establishing responsibility, making the causal agent "eligible" for responsibility.

1. The Significance of Intervening Choice

This section considers the argument that society cannot be held responsible for the problems facing black people to the extent that such problems result from the voluntary choices of individual blacks. The high rates of nonmarital births and family breakdown in many poor black communities, for example, involve choices to engage in unprotected sexual intercourse and to abandon family responsibilities. High crime rates can be explained in part by decisions to join gangs, to sell drugs, and to kill. Low voter turnout in black communities reflects in part decisions not to participate in the political process. Disparities in educational achievement between blacks and whites are due in part to black parents' lack of support for or interest in their children's education. Indeed, some social scientists have identified the emergence of an "oppositional culture" in many poor, urban, predominantly black communities. This culture tends to devalue academic achievement, work, marriage, and civic responsibility, while encouraging government dependence, promiscuity, substance abuse, and crime. The choices fostered by such a culture are destructive to these communities. Moreover, as years pass and new generations are raised, an even greater number of choices intervenes between past societal discrimination and the present.

In focusing on irresponsible and blameworthy conduct by blacks, this Article does not mean to suggest that most blacks engage in such misbehavior, or that other factors do not also contribute to black disadvantage. However, recognizing that individual choices may exacerbate the problems facing black communities raises important questions about societal responsibility for the plight of such communities. If societal responsibility is ever to end, intervening choice may provide the most persuasive reason. Conversely, if such choices should not absolve society of responsibility, even where personal choices are significant, then the case for societal responsibility should be on even firmer ground with respect to other conditions plausibly linked to America's racial history in which black people's responsibility is less implicated. Some examples include the poor quality of predominantly black urban public schools, the lack of intergenerational wealth in black families, and the persistence of intentional discrimination.

Some commentators, particularly from the right, emphasize the importance of individual responsibility for immoral choices. They argue that those black people who engage in blameworthy conduct should be held personally responsible for the effects of their choices. Whatever the effects of past societal discrimination on the conditions in which black people live today, such conditions do not coerce blacks into committing crime or render them incapable of moral reasoning. To attribute responsibility to society for the problems of blacks would inappropriately suggest that blacks should be excused for their behavior. Such a conclusion patronizes blacks and is unfair to the individuals and communities of all races who are victimized by crime. Thus, the implication of intervening choices by blacks is that society should be absolved of whatever responsibility it ever had for the lingering effects of slavery and discrimination.

Some observers from the left, in contrast, appear to deny that black people have any personal responsibility for their condition or conduct. Believing that destructive behavior by blacks is caused by societal discrimination, they conclude that blacks should be excused for such behavior. Some have advocated, for example, a "black rage" or "rotten social background" defense that would excuse some black defendants from criminal liability because of their experience with racism or with conditions created at least in part by societal discrimination. Some scholars go so far as to excuse morally all blacks who commit crime on the ground that societal discrimination caused all such behavior. To attribute responsibility to blacks for conduct caused by societal discrimination would be, in their view, to blame the victim.

Several fallacies appear to underlie the foregoing debate. First, some proponents of societal responsibility apparently assume that causation necessarily implies responsibility on the causal agent's part. Believing that society, through discrimination, caused present conditions, they conclude that society is necessarily responsible for such conditions. However, causation does not necessarily imply responsibility. The claim that past societal discrimination caused certain conditions may be plausible as an explanation, a description of actual causation, but may not be justified as an ascription of responsibility to society for such conditions. As the concept of proximate cause recognizes, causation-in-fact does not necessarily establish responsibility, particularly for subsequent events that result more immediately from intervening voluntary choices.

Another implausible assumption reflected in arguments from the left is that causation necessarily excuses the conduct of those affected. Believing that self-destructive behavior by black people is caused by societal discrimination, these advocates conclude that black people are not responsible for that behavior. Such reasoning confuses causation with coercion. One whose conduct is coerced, that is, a product of conditions that deprive him of the capacity to make a voluntary choice, may lack responsibility for his conduct. Absent coercion, however, one who chooses to engage in wrongful conduct is not immune from personal responsibility simply because the choice to commit the misconduct was influenced by prior events, even if those events made the choice difficult. Taken to the extreme, this position is inconsistent with the very idea of personal responsibility, as no choices are free from the influence of prior events. Accordingly, it does not follow from the observation that societal discrimination has caused a disproportionately high rate of harmful or self-defeating conduct by black people that blacks who engage in such conduct ought not be held personally responsible for the consequences.

To excuse completely blacks who engage in conduct destructive to themselves or to others simply because they must cope with difficult circumstances would also seem to endorse the assumption that they lack the character or self-control to act morally or in their best interests. Notice that the economic disadvantages disproportionately experienced by blacks, even if resulting in part from societal discrimination, are not necessarily different from conditions experienced by many white people. Despite this fact, we generally hold white people responsible for their choices, absent truly coercive conditions. Most black people, moreover, are law-abiding, moral, and productive citizens who raise their children accordingly, despite suffering the effects of discrimination. To excuse those blacks who fail to develop themselves or to contribute to society would seem to undermine the credit owed to those who succeed. Those who advocate such excuses not only treat blacks patronizingly, but also risk endorsing the prejudice that blacks should be feared as irresponsible or criminal.

Respecting black people as responsible persons does not, however, require the rejection of societal responsibility. Another fallacy, reflected on both sides of the debate, is that there can be only one actor morally responsible for a given harm. Those who believe that blacks are personally responsible for engaging in harmful conduct conclude that societal responsibility is therefore precluded. This "either-or" or sole-responsible-cause paradigm also seems to explain the position of many advocates of societal responsibility, who instead begin from the premise that society is responsible and conclude that therefore blacks are not. Admittedly, one can find some support for the sole responsible cause paradigm in the causation literature. Some scholars have argued that there can be only one cause of an event, and legal writing often seems to assume this to be true. Moreover, the doctrinal principle that intervening voluntary conduct may negate the responsibility of a prior wrongdoer suggests that responsibility may shift, in its entirety, from one party to another.

Notwithstanding this support, the notion of sole responsible cause is not well founded. However common it is for courts to speak of "the" cause when identifying responsible causal agents, there are numerous situations in which multiple causal agents are held responsible as proximate causes. For example, if A assaults and injures V, and V is subsequently given negligent medical treatment by B, both A and B can be held civilly and criminally liable for the resulting harm. Or, if a landlord negligently fails to secure an apartment building adequately, he may be responsible for injuries caused by an intruder against a tenant. And if D incites a riot, he may be held responsible without precluding punishment of individual rioters. Holding an original wrongdoer responsible does not necessarily imply that a subsequent intervening actor is not also responsible for his contribution to the ultimate harm.

Accordingly, with respect to harms resulting from the choices of black people, proximate cause analysis permits holding either society or black people responsible, or both. Consider also that responsibility might be shared or allocated on the basis of comparative fault. For example, society may be responsible for contributing, through historical discrimination, to the crimogenic conditions in certain urban ghettos while, at the same time, those who commit crimes as a result are held criminally responsible for their conduct. Accordingly, in considering the implications of intervening black choices for societal responsibility, we should not resist finding society responsible, or blacks for that matter, simply because we are committed to holding the other responsible as well.

Nonetheless, even if the contribution of black people's choices toward their own plight does not necessarily relieve society of responsibility, such choices are surely relevant in assessing society's responsibility. It is arguably unfair to society to hold it responsible for all subsequent choices caused in any way by societal discrimination no matter how unreasonable or unpredictable such choices might be. Thus, while intervening choices do not necessarily break the causal chain of responsibility, they may suffice to do so under certain circumstances. The question is when.

In considering the relevance of intervening choice, legal doctrines that incorporate principles of corrective justice provide some helpful insights. The primary standard under proximate cause analysis for evaluating the relevance of intervening choice is foreseeability. An intervening choice may relieve the original wrongdoer of responsibility if the choice is not a reasonably foreseeable effect of the original wrongdoing. The virtue in the approach is its focus on the original wrongdoer's perspective. To the extent corrective justice bases responsibility on the causal agent's fault, the foreseeability inquiry appropriately focuses on what the wrongdoer should have anticipated as a consequence of his wrongful acts. The underlying principle is that one who could have foreseen that his wrongful conduct would cause the type of harm in question is fairly blamed for such harm. Conversely, one is not fairly held responsible for extraordinary consequences that could not reasonably have been anticipated.

Courts tend to extend proximate causation to a broader range of harmful consequences when the initiating wrongdoer's conduct was intentional or otherwise highly culpable. Indeed, there is substantial authority for the proposition that responsibility for intentional wrongdoing extends even to unforeseen consequences. To the extent the proximate cause analysis considers fairness to the original wrongdoer, the greater his wrongdoing, the less he should be heard to complain that the harm he caused was not intended or expected. While the animating principle is sound, the difficulty is in its application. What is reasonably foreseeable is highly dependent on the circumstances and is ultimately a matter of judgment. Nonetheless, the inquiry may be useful in assessing society's responsibility for self-defeating or harmful choices by black people.

Applying the foreseeability approach to societal discrimination, the question is whether the condition of black people today, including the contribution of their choices, is a foreseeable result of slavery and discrimination on a society-wide basis, across numerous generations. Such conduct is highly culpable; the egregiousness of subjecting people, because of the color of their skin, to slavery, segregation, and discrimination cannot easily be exaggerated. Moreover, the racial discrimination at issue was intentional. Intentional acts of such blameworthy character suggest a long chain of proximate causation.

Nonetheless, one could argue that with the abolition of widespread legal discrimination in the 1960s, black people, once free to compete on equal terms, should have uplifted their condition and closed the gap. While some time would be required, the persistent and even worsening condition of many black communities could not reasonably be expected. Over thirty years after achieving legal equality, the persistent failure of blacks to better themselves can no longer, in fairness, be attributed to past societal discrimination. The availability of affirmative action and antipoverty programs during this time strengthen this argument. The choice by some black people, particularly young black males, with opportunities for education, meaningful work, and civic participation, to engage instead in menial labor, government dependence, drugs, and gangs is arguably not a foreseeable response to their circumstances even if those circumstances were caused in some degree by past discrimination.

It certainly is perplexing that some people eschew opportunities that, however challenging, would significantly improve the quality of their lives. Americans who value education, family, and honest work are understandably confused, frustrated, and even disgusted at the persistent cycles of failure among the black underclass. Yet the question is not whether the conduct of poor blacks would be foreseeable if carried out by those Americans who have not experienced the effects of societal discrimination. The question, rather, is whether such conduct reflects a predictable response by those most acutely impacted by discrimination, those whose lives confront the full catastrophe of America's discriminatory history. If we sincerely endeavor to appreciate the nature and influence of past discrimination, we should recognize that the choices of so many black Americans have been and continue to be shaped by the intergenerational effects of class and caste.

Class effects refer to conditions derived primarily from economic deprivation that tend to impair the opportunities of present and future generations. Black children reared in families without economic or educational resources are unlikely, as adults, to have gained the kind of skills, knowledge, and aspirations that many white children will have gained from the day-to-day experience of being raised by an educated or economically privileged family. This relative lack of experiential knowledge or understanding among black people in one generation will affect the beliefs and aspirations of the next. The result is not so much a lack of awareness of the norms by which middle-class society lives, but a lack of the internalization of those norms that comes from years of daily parental nurturing and guidance. It is true that a number of black people have made laudable and outstanding progress. But the reality for many black children, particularly in the inner city, is that the combination of concentrated poverty, drugs, crime, broken families, and lingering discrimination impairs their ability to make informed choices. Even after reaching adulthood, many of these children will continue, predictably, to lack the aspirations, skills, and self-discipline they would have internalized in a family not damaged by past discrimination. The children born to these adults will likely, in turn, suffer similar consequences.

Caste effects are broader than class effects and include social status-based discrimination that goes beyond the immediate disadvantages of poverty. Under the Hindu caste system of India, for example, a person's caste was not exclusively a function of one's economic condition, but was a social and religious trait inherited from one's family. Members of different castes were expected to fulfill different roles, with severe sanctions imposed against those who sought to deviate from them. This system relegated lower castes to a life of menial labor often in service of higher castes, and subjected "outcaste" or "untouchable" people, deemed ritually unclean, to drastic forms of segregation. Marriage between castes, particularly with the lowest castes, was socially proscribed. Perhaps most importantly, the inferior status of the lower castes was socially accepted both within and without those castes. The result is that ambitious laws enacted fifty years ago to abolish the caste system have had limited success in eliminating social caste distinctions, particularly with respect to those (formerly) known as "untouchables." One of the most difficult problems has been the extent to which members of traditionally lower castes continue to believe in the legitimacy of their inferior status.

Racial discrimination in the United States was in substance a caste system. By virtue of an inherited trait, race, black people were socially and legally denied political, economic, and educational opportunities. They were segregated in housing, schools, and marriage, victimized by violence and intimidation, and subjected to an ideology of inferiority and exclusion. This ideology continues to affect both the way many black people think of themselves and the way white people react to them. The effects of racial caste shape people's preferences, values, and expectations, which in turn affect their choices. Moreover, blacks who do escape poverty do not necessarily avoid such social and psychological effects. They still encounter a world in which many Americans of all races doubt the character or competence of black people. The effects must be far greater on black children raised in families and communities marked by poverty, substance abuse, and crime, "those who learn from birth to expect and therefore to reach for little."

The analogy to the Indian caste system should not be overstated. India and the United States are different in many complex ways that I have not adequately described or explained. The point of the comparison is simply that a social system of inheritable subordination, deeply ingrained in a nation's culture and supported by law for numerous generations, will tenaciously persist over subsequent generations despite the abolition of legal distinctions.

Additionally, in considering the extent to which racial disparities today are a reasonably foreseeable consequence of past discrimination, it should be recognized that the discrimination was continuous. It was not an isolated, single event with speculative consequences stretching into the future. Rather, society continuously discriminated against blacks year after year, generation after generation. Thus, the effects of such discrimination, and the need to rectify them, were continuously apparent. Society was an ongoing participant in the subordination of blacks and a continuing witness to the social and economic conditions that resulted. Thus, society cannot plausibly claim that America's racial divide today could not reasonably have been anticipated because the devastating consequences of centuries of wholesale discrimination were visible throughout the course of the discrimination.

The foregoing argument is only a sketch of the process by which the economic, social, and cultural effects of past discrimination perpetuate themselves through the children of each generation. Much more work is needed to understand more fully the legacy of American discrimination. The point of the preceding analysis is that black people's choices taken in response to past societal discrimination are not so extraordinary as to justify denying any societal responsibility for the results of those choices. When we endeavor to appreciate the intergenerational effects of societal discrimination on the subjective processes of its victims, the self-destructive choices of those victims are, tragically, predictable. To conclude that their choices do not implicate the responsibility of society would seem to permit the cultural and psychological damage of societal discrimination to serve as its own excuse. When the predictable, insidious effects of a caste system come to pass, we should not relieve the caste creator of responsibility simply because the caste system has succeeded in enlisting its victims to aid in its perpetuation.

2. The Significance of Time

The passage of time itself provides another basis for limiting society's responsibility for effects of past discrimination. It has now been almost 140 years since the abolition of slavery and almost forty years since the Civil Rights Acts of the 1960s. At least two considerations support the claim that time may have diminished societal responsibility. First, regardless of the reason for delay, claims based on historic injustice arguably should dissipate with time. A kind of statute of limitations may apply to claims of racial injustice. Second, even accepting that past discrimination explains much of black disadvantage, some commentators have questioned whether blacks have "slept on their rights." In delaying their claim for societal remediation, blacks may have forfeited their rights under a rule similar to the equitable doctrine of laches.

This Article argues that American society has a moral, rather than legal, obligation to remedy past discrimination. Therefore, a statute of limitations does not apply. Nonetheless, the concerns that underlie statutes of limitations may suggest reasons why the passage of time since the legal abolition of slavery and segregation should extinguish society's moral obligation. Statutes of limitations serve several purposes. They encourage plaintiffs to bring litigation before evidence is lost or becomes unavailable. They also protect defendants against fraudulent claims brought after the facts become difficult to prove. Additionally, litigating cases where the court can determine facts efficiently conserves judicial resources. Finally, statutes of limitations provide a sense of finality or repose for defendants.

On the other hand, other considerations counsel against imposing a limitation period. Such periods tend to be inapplicable or at least lengthier for especially important causes of action, such as prosecutions for the most wrongful crimes. Equitable grounds may also justify holding that a claim is not barred despite the passage of the statutory limitations period. Two such doctrines are equitable estoppel and equitable tolling. Equitable estoppel focuses on the defendant's fault in impairing the plaintiff's ability to bring a timely claim, "preclud[ing] a party from taking advantage of a predicament into which the party's own conduct has placed his adversary." Equitable tolling focuses instead on the plaintiff, relieving him of the statute of limitations when he has good cause for delay, such as where the plaintiff was unable to obtain or discover necessary facts, or where the plaintiff suffered from a legal disability. Finally, certain offenses, such as conspiracy, are viewed as "continuing" rather than as discrete incidents, and therefore do not trigger the running of the limitations period until they have terminated completely.

Turning to society's obligation to remedy past discrimination, two points suggest time barring the obligation. First, the passage of time since the abolition of slavery and segregation has produced evidentiary difficulties with identifying the present victims of past discrimination and the extent of their injury. Second, America has an interest in repose, that is, relief from the unsettled and divisive controversy surrounding affirmative action and reparations. At some point, for the sake of civil rest and the health of the collective American psyche, the admittedly unjust discrimination of the past should arguably be let go.

Notwithstanding these concerns, a number of considerations counsel against time barring society's obligation for past discrimination. First, and most importantly, there has in fact been no delay in seeking reparations and other remedial policies from American society in compensation for slavery and discrimination. Blacks (and whites) condemned slavery and demanded its abolition throughout its practice. Following slavery, throughout the nineteenth and twentieth centuries, blacks have sought to end discrimination, punish lynching, retain the right to vote, and have demanded remedial relief for the effects of slavery and discrimination. For example, during Reconstruction, blacks and their supporters sought congressional reparations in the form of land for the freed slaves. Similarly, at the turn of the twentieth century, blacks sought reparations for slavery from Congress through the Mason Bill, which would deliver reparations in the form of pensions to those individuals who lived through slavery:

[A]ny person who may have been held as a slave or involuntary servant under and by reason of any law of the United States, or of either of the States . . . and who shall at the date of the passage of this Act have reached the age of seventy years, shall be entitled to and receive the sum of five hundred dollars from the Treasury of the United States . . . and to the sum of fifteen dollars per month during the residue of their natural lives. The bill would provide smaller sums to younger survivors of slavery. Demands for reparations continued through the civil rights movement of the twentieth century to the present.

Moreover, such demands have been made in the face of relentless and often violent rejection. Indeed, any greater demands by blacks would likely have been met with even more brutal reprisals than were perpetrated against them throughout American history. Any delay in remedying past discrimination thus reflects society's delay in fulfilling its obligation, not the delay of blacks in demanding it. To recognize such delay as undermining America's obligation would be like time barring a defendant's liability for wrongful injury because the defendant delayed in responding to a plaintiff's timely complaint or in fulfilling a judgment of liability. Such delay might justify a default judgment, interest fees, and contempt against the defendant, not relief from liability.

Additionally, even if no one had argued for remedial policies until now, a limitations period would not in fairness begin to run until the late 1960s. Societal discrimination was continuous through slavery and segregation until the effective enforcement of the Civil Rights and Voting Rights Acts of 1964 and 1965, respectively, and the Supreme Court's invalidation of anti-miscegenation laws in 1967. The unjust conduct for which society is responsible thus did not end until recently. Furthermore, any delay in demanding remedial relief before the late 1960s is excusable on equitable grounds. Society's discrimination against blacks, including disenfranchisement, educational and economic deprivation, and intimidation and violence, realistically precluded blacks from effectively seeking remedial legislation.

The disenfranchisement of blacks is worth emphasis. Following Reconstruction, blacks were effectively disenfranchised by the turn of the twentieth century, and remained so until the Voting Rights Act of 1965 ameliorated the most significant obstacles to black political participation. The disenfranchisement of blacks made obtaining remedial legislation infeasible. As democratic theory would predict, the exclusion of political participation prevented blacks from seeking legislation in their interests, and eliminated any incentives among whites to form coalitions with blacks to lobby for mutually beneficial public policies. The rise of segregationist laws and practices that accompanied the disenfranchisement of blacks is thus not surprising.

Consider also the futility of demanding compensatory relief from a society that continued to protect state-sponsored and private discrimination. A society that continues to support discrimination is extremely unlikely to compensate willingly its ongoing victims for past discrimination. This assumption is borne out by Congress's rejection of the aforementioned efforts to obtain land and monetary reparations both during Reconstruction and at the turn of the twentieth century. Indeed, following the Civil War, the federal government not only rejected claims for reparations, it affirmatively reclaimed land that had been awarded to some former slaves. Even recent proposals that merely seek an apology for slavery and for a commission to study slavery and its effects have met cold receptions in Congress. A claim is not justly considered time barred when the defendant impaired the plaintiff's ability to pursue it sooner or when the institution that must approve the claim would not previously have recognized the claim's legitimacy.

Accordingly, the time that has elapsed since blacks can reasonably be expected to have sought compensatory relief has been just a few decades since the national abolition of state-sponsored discrimination. Assuming for the sake of argument that blacks have not sought reparations or affirmative action until now, the passage of a few decades, compared to the centuries of injustice that preceded them, is hardly too long. It took almost fifty years between the internment of Japanese Americans and the enactment of congressional reparations, and that was for an injustice of far more limited scope and duration. Recall also that the seriousness of the claim counsels against application of a statute of limitations. Slavery and discrimination against blacks was egregiously unjust, which conservatives now emphasize in claiming that all racial discrimination is per se unconstitutional.

The foregoing considerations suggest that despite concerns over loss of evidence and repose, the delay in seeking relief required to trigger the running of a limitations period has not occurred. To the extent it has, however, the limitations period should be estopped or tolled on equitable grounds. The concern over repose, moreover, is itself inadequate to time bar society's responsibility. First, although social tension over past discrimination is undesirable, refraining from remedying the effects of discrimination is not the most effective or appropriate response. Policies designed to remedy past discrimination are not the sole or even primary source of America's racial problems. The cultural, socioeconomic, and political divide between blacks and whites long predates the contemporary affirmative action debate. Indeed, the extent to which blacks and whites live in two nations reflects the long-term effects of societal discrimination, conditions which foster racial friction and reinforce stereotypes. Remedying the conditions that divide Americans along racial lines should be as likely to reduce social tensions as to exacerbate them. Second, any social friction surrounding efforts to remedy past discrimination cannot justify denying such relief if the friction stems from society's refusal to recognize its remedial responsibility. Legitimate claims for equal rights have often stirred resentment among those who would persist in discrimination, but that has not served as a legitimate ground to protect the status quo. If it were, then the abolitionist and civil rights movements should never have been attempted. The difficulty of identifying the effects of past discrimination is a legitimate concern. As the next Part argues, however, the difficulty is insufficient to excuse morally society's obligation to engage in remedial efforts.

The claim that black people have "slept on their rights" is unpersuasive for reasons similar to those discussed in relation to application of a limitations period. The defense of laches requires unreasonable delay committed by the plaintiff in seeking relief. First, as explained above, blacks have not delayed in seeking remedial relief from the oppression of slavery and discrimination. Second, as also discussed, any delay on the part of blacks was not unreasonable, given the nature of society's ongoing discrimination against them.

In short, America practiced slavery for two and a half centuries and enforced a regime of legal and social caste for at least another hundred years. Throughout all of those years, voices of protest were raised and ignored. In the few decades since the civil rights movement, society's efforts to address the effects of a long history of discrimination have been minimal and halting. Black people have not slept on their rights; American society has persisted in denying them.

 

 

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A Moral Justification For Affirmative Action and Reparations ] African American Middle Class and the Cost of Discrimination ] Black America and Reparations ] Developing Legal Strategies to Advance Reparations ] Does a Prima Facie Case For Reparations Exist? ] Dominant Perspectives on Reparations ] Governmental Reparations for Slavery ] JP Morgan Chase Manhattan Bank and Slavery ] Political Autonomy as a Form of Reparations ] The Role of the Federal Government in Slavery and Jim Crow ] Slavery and Tort Law ] Reparations and the Failure of the Constitutional Amendments ] Reparations as Redistribution ] Slavery Segregation and Reparation ] Slavery Segregation and Reparations ] The Mass Tort Analogy and African American Reparations ] The Case Against Black Reparations ] Unjust Enrichment and Reparations for Slavery ] The Cultural War over Reparations for Slavery ] The Case for Black Reparations Redux ] The Case for Black Reparations ] The Origins of the Tulsa Riot and its Damage ] The Race-Skewed Notion of Victimhood ] Transforming Public Perceptions of Reparations ] Uncivil Wars and Reparation ] WCAR-New Avenues for Slavery Reparations ] White America and Reparations ] Slavery, Reproductive Abuse, and Reparations ] Statutes of Limitations and Reparations ] Takings Clause Solution to Reparations ]
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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).