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Alfred L. Brophy

 excerpted from: Alfred L. Brophy, The Cultural War over Reparations for Slavery , 53 DePaul Law Review 1184-1201 (Spring 2004) (116 footnotes)

 

Perhaps some of the opposition comes from the sense that there will be both extraordinary liability and that there will be more humiliation attached to apologies and reparations payments. In order to understand reparations further--indeed, to arrive at some sense of what reparations will be like--it is necessary to understand what reparations mean. What is it that reparationists want?

The goals of reparations are varied. Most people writing about reparations begin by talking about truth commissions that acknowledge the scope of the problem, along with an apology. United States Representative John Conyers of Michigan, for example, has introduced a bill, H.R. 40, in every congressional term since 1989 to study slavery and to understand its effects, which encompass the benefits it has conferred as well as the harms it has entailed on subsequent generations.

A. Apologies and Truth Commissions

Some of the more moderate proponents of reparations see truth commissions and apologies as critical parts of reconciliation. Indeed, for some, those may be the center of a reparations plan. Eric Yamamoto's work in Interracial Justice focuses on reconciliation. Yamamoto sees reconciliation as a two-sided project. Once there is truth and apology, then payments can help solidify that contrition.

Others propose truth commissions for limited parts of Jim Crow and slavery, like the Tulsa Race Riot of 1921, the Rosewood Massacre of 1923, and the thousands of wrongful prosecutions and lynchings and dozens of riots that took place throughout the country in the period from Reconstruction through the Civil Rights Era. Professor Sherrilyn A. Ifill has suggested recently that local communities ought to establish truth commissions to investigate local complicity in such crimes as lynchings. She makes a compelling case for the centrality of lynchings to American society in the early part of the twentieth century, and that we should do something to investigate them. But we also need a theory of how those truth commissions, once established, will help. Certainly, they will uncover ugly chapters of American history. But once that has happened, will they do anything else? At other times, truth commissions come in the form of prosecution of decades-old crimes.

The new knowledge that the truth commissions will produce will, one suspects, have several consequences. First, it will give a new sense of power to those whose version of history is vindicated. The power of historical stories is strong--it gives listeners a sense of place and importance--and when there are stories about the community, it will lead to a renewed sense of power and pride. The value of historical stories appears to be great. One can gauge the power of stories and apologies by how difficult it is to obtain them. Look at the struggle that has taken place over whether the United States government, meaning a president, will apologize for slavery. In 1998, President William J. Clinton flirted with an apology for slavery when he visited Goree Island, the place of embarkation for many slaves being taken to the Americas. Indeed, some of his remarks come pretty close to an apology--and they certainly represent condemnation and contrition--even though he never claimed that he had apologized. Why, one asks, is it enormously difficult to obtain even an apology? Clinton represented the age of apology. He apologized profusely for the United States government's past crimes, discussed apologizing for, or was part of, apologies for slavery, the genocide in Rwanda, executions of civilians during the Korean war, the United States's support of Guatemala's military while it committed genocide, medical experiments on African Americans at Tuskegee, radiation experiments, and deprivation of Native Hawaiians' land.

Well, given the opposition one sees to apologies, it must have meaning to the people who are asked to give the apology, as well as to those seeking it. Indeed, the apology's meaning appears in what it signals about blame and responsibility for the consequences of that crime. President George W. Bush's recent statements regarding the crime of slavery suggests both the power of reparations arguments and the current limitations on them. For it is doubtful that President Bush would have made such an acknowledgment about the harms of slavery if there had not been extensive reparations talk in the months leading up to his statement. But his refusal to apologize for slavery also suggests limitations.

Second, it will serve as a basis for subsequent arguments about equality and reparations. At least reparationists will argue that with this new understanding of the centrality of race, we should take racial categories into account more often. Far from leading to a society in which race is not important, reparations and truth commissions will likely lead to a color-conscious society. This question of what truth commissions do is at the center of debates about reparations throughout the world. For there is a certain value in truth--it tells us about how we view the world.

For many, the truth commission and apology are merely opening steps to a larger program of reparations. By preparing people to understand the nature of the harm and why reparations are needed, they are a way of making the claim before the public. One recent anonymous assessment of reparations from the April 2002 Harvard Law Review, entitled "Bridging the Color Line: The Power of African-American Reparations to Redirect America's Future," focuses on winning political acceptance of the idea of reparations. As the author observes, "before achieving victory in a court of law, African-American reparations must succeed in the court of public opinion." It might be possible to achieve limited victories in court, of course, before conversion of the national conscience to the idea of reparations. However, transformative reparations will almost certainly come through the legislature, if at all. The anonymous author of "Bridging the Color Line" proposes a gradual political process of accommodating the national conscience to reparations-- first, through study of the effects of slavery and Jim Crow, then through exploration of remedies, which emphasizes issues of justice and economics, rather than race. That author sees studies of the impact of slavery on the nation and on slaves and their descendants as critical to the case for reparations and as only the first step in making the case:

Incrementalism that focuses first on the creation of a commission to investigate the wrong will provide politicians and reparationists with the opportunity to lay the evidentiary groundwork necessary to educate the public regarding the effects, past and present, of slavery and Jim Crow--creating a strong moral and economic claim for reparations in the second place.

The note makes some suggestions about how such a reparations program would look. The initial study of the effects of slavery and Jim Crow would both lay the groundwork for a national consensus on reparations and also serve a cathartic purpose, which would offer emotional closure for victims. Some will likely say that the Note is overly optimistic in its assessment of the likely effects of a truth commission. Recently, Eric Yamamoto and several colleagues advanced a similar analysis, which suggests that as the United States struggles with international terrorism, it will reinforce its moral position by supporting domestic racial justice.

Yet that leaves the question open: once we get past studying, talking about, and apologizing for slavery and Jim Crow, what will reparations look like? As Richard Newman of the W.E.B. DuBois Institute at Harvard University said in June 2001, "[N]othing is going to make history go away." By analogy to the Marshall Plan, which rebuilt Germany following World War II, he suggested a domestic Marshall Plan. Newman could not state, because indeed it is impossible, the likely cost of reparations. For in talking about reparations, one is "talking about something colossal."

B. The Goals of Reparations

Before we talk about spending colossal amounts of money, we should have some sense of what it is that we want to accomplish. In essence, why reparations? What is the point? Here, as with reparations plans, the goals are diverse. They include a range from corrective justice--acknowledging and repairing past harm--to distributive justice.

Professor Charles Ogletree, one of the leading reparationists and a leader of the Reparations Coordinating Committee, a group of lawyers and social scientists whose goal is to coordinate reparations lawsuits, has recently emphasized four features of reparations:

(1) a focus on the past to account for the present;

(2) a focus on the present, to reveal the continuing existence of race-based discrimination;

(3) an accounting of the past harms or injuries that have not been compensated; and

(4) a challenge to society to devise ways to respond as a whole to the uncompensated harms identified in the past.

Ogletree sees "acceptance, acknowledgment, and accounting" as central elements of reparations. Phrased another way, reparations mean truth commissions that document the history of racial crimes and the current liability for those crimes, apologies that acknowledge liability, and payment to settle the account. Ogletree concludes with an appeal to the consciousness of his readers and with a grand theme:

I envision an America where we focus not on our own personal, selfish needs, but on the needs of the voiceless, faceless, powerless, and dispossessed members of the African-American community. We must continue the fight for justice and equality by imagining a world that cares for those who would be left behind. It is a dream that we must make . . . a reality for everyone.

Professor Manning Marable of Columbia University sees justice and equity as the goals of reparations. Reparationists like Marable see reparations as a movement to reconceptualize politics and society. They want an America that builds the African-American community, that recognizes the African-American contributions, and that is freed of the legacy of disadvantages suffered by African Americans. In essence, they ask for society to be as it would have been without state-sponsored or state-allowed slavery and later discrimination. Marable has summarized the demands:

White Americans, as a group, continue to be the direct beneficiaries of the legal apparatuses of white supremacy, carried out by the full weight of America's legal, political, and economic institutions. The consequences of state-sponsored racial inequality created a mountain of historically constructed, accumulated disadvantage for African Americans as a group.

Marable grimly concludes that "America's version of legal apartheid created the conditions of white privilege and black subordination that we see all around us every day. A debt is owed, and it must be paid in full." Marable is aiming at the wholesale remaking of American institutions, which he sees as premised on and structured around white supremacy. In an important talk at Columbia Law School in 2002, Marable stated "[T]he goal of the black freedom movement is freedom." Reparations are part of that movement. In contrast to many in the civil rights movement of the 1950s and 1960s, the goal for Marable is not integration. "Integration," Marable said, "is only a tool to freedom." "The two things we've never had are freedom and justice. . . . What is a black theory of justice? Black people as a whole are in a hole they will never get out of." Marable argued that we need to address the material differences. And that naturally leads to the question, are reparations a way of maneuvering to address those material differences?

Robert Westley's 1998 article, "Many Billions Gone," which was published in the Boston College Law Review, is one of the most important articles ever written on reparations for slavery. Westley aims at establishing a "legal norm reflecting and reinforcing the interests and perspectives of the subordinated." He draws on the 1987 article by Mari Matsuda, who used reparations as an idea that sprung from the minds of common people--and, one suspects, comes from their ideas of what is fair. Westley, like Matsuda before him, seeks a "committed, concerted, and visionary appeal." He wants to aid blacks as a group. Westley sees the movement for black reparations as part of a larger movement, which must take account of reparations to other oppressed groups. In fact, he admits that other groups, like Native Americans, may have an even better claim on reparations than do blacks.

Westley sees distinct advantages to the group-focused remedies:

[T]he 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.

Even though there will be only limited payments to individuals, Westley sees money as the central element of a reparations plan:

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.

He proposes achieving that by making payments to the most impoverished and by establishing a trust fund. African-American beneficiaries could then elect the trustees, who would decide where to spend trust income and assets. Such a plan offers hope of putting control over money into the hands of the people for whom the money should be spent. He concludes with an optimistic, though vague, assessment that reparations will bring equality to blacks:

[F]or 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. . . . 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.

Randall Robinson's best selling book, The Debt: What America Owes to Blacks, takes much of its format and framework from Westley's article. Robinson, like Ogletree and Westley, focuses his attention on the poorest African Americans. The critical issue, as the leading proponents of reparations, Randall Robinson and Charles Ogletree, both point out, is to aid the most disadvantaged--the people who have been left furthest behind. For, as Robinson says, affirmative action "programs are not solutions to our problems." He recognizes that they are too little and that they are not aimed at the most impoverished:

They are palliatives that help people like me, who are poised to succeed when given half a chance. They do little for the millions of African Americans bottom-mired in urban hells by the savage time-release social debilitations of American slavery. They do little for those Americans, disproportionately black, who inherit grinding poverty, poor nutrition, bad schools, unsafe neighborhoods, low expectation, and overburdened mothers.

Money is important, obviously, because that is what makes it possible for people to move out of poverty. However, an important part of Robinson's reparations movement goes beyond money. Robinson sees an important goal--and maybe the most attainable one--as spiritual growth. He sees reparations as repairing that damage, which stretches across generations:

[T]hrough keloids of suffering, through coarse veils of damaged self-belief, lost direction, misplaced compass, shit-faced resignation, racial transmutation, black people worked long, hard, killing days, years, centuries--and they were never paid. The value of their labor went into others' pockets--plantation owners, northern entrepreneurs, state treasuries, the United States government.

Even if Congress never pays a penny in reparations, Robinson sees great promise in the ability of reparations talk to bring about psychological change. He concludes The Debt with the prayer:

We must do this in memory of the dark souls whose weary, broken bodies endured the unimaginable.

We must do this on behalf of our children whose thirsty spirits clutch for the keys to a future.

This is a struggle that we cannot lose, for in the very making of it we will discover, if nothing else, ourselves.

Robinson also draws upon the widely publicized work of Richard America, particularly his 1993 book, Paying the Social Debt: What White America Owes Black America. America sets out to calculate the amount that African Americans have contributed to the United States economy, for which they have not been compensated. He computes the debt using the formula:

Restitution Owed = The Net Present Value of the Sum of (Deviations from Fair Standards in Prices + Wages + . . . All Other Transactions)

America offers no off-set for restitution that may already have taken place in the form of welfare payments and so may inflate, perhaps dramatically, the value of the debt. America does, however, provide a detailed outline of ways to pay the debt, including creating an antitrust law that breaks down social concentration (what he calls "subsidizing social divestiture"), narrowing inequalities in wealth, encouraging affirmative action, investing in reducing crime, and discouraging immature parenting and welfare dependency.

Other reparationists have vaguer, but similar, goals. Some sense of what reparationists want may be gained by looking more generally toward critical race scholarship. For that movement--of which reparations is now a significant part--provides some detailed plans. One key tenet is white privilege. The "breakdown of white privilege" entails a whole host of other assumptions, probably including the redistribution of property, so that it is distributed equally on a per capita basis among racial groups. Or, as William Bradford has recently summarized, the opposition to reparations comes in large part because it is about breaking down privilege:

More than any other remedy, reparations transforms the material condition of recipients. Moreover, it connotes culpability: for a majority that rejects group hierarchy, harm, and responsibility, reparations is a radical redistribution of wealth, rather than a disgorgement and reallocation of an unjust acquisition, that exacerbates unrest. Reparations thus yields resistance, backlash, and 'ethnic elbowing.' As it would strip their racial privileges along with their currency, reparations is opposed by all but the most altruistic whites.

There is, I suspect, a considerable debate that has yet to take place on the value of white privilege. What does that mean? How is it measured? What is the value of the privilege for white people living in poverty or who have no college education or who are above the poverty line, but are trapped in low-paying jobs? For example, one wonders what privilege is possessed by the five percent of white Americans living in poverty or the eight percent of white children who live in poverty?

But reparationists have a somewhat different and wider goal: the redistribution of wealth and political power. The differences between the demands of reparationists and critical race theorists more generally, certainly warrants attention. Along those lines, one might contrast Eric Yamamoto's work on interracial justice, Mari Matsuda's early work on reparations, Anthony E. Cook's more recent work on reparations, and Jerome McCristal Culp's work on white privilege. Such a comparison suggests the differences in goals--interracial justice and peace in Yamamoto's case, corrective justice in Matsuda's, a mixture of distributive and corrective justice in Brooks's case, and more of an emphasis on redistribution of privilege in Cook's and Culp's cases. It is becoming difficult to answer, "What are reparationists' goals," because they have so many different--and perhaps even contradictory--goals.

Many of the reparationists who seek wholesale redistribution of wealth take inspiration from Martin Luther King Jr.'s prescription in his 1964 book, Why We Can't Wait, that there be reparations. As Yale Law Professor Boris Bittker writes: "[I]n proposing a Bill of Rights for the Disadvantaged," Martin Luther King, Jr. argued that "[t]he moral justification for special measures for Negroes is rooted in the robberies inherent in the institution of slavery." Reparationists have often focused on King's call for payments. Georgetown University Professor Anthony Cook's recent article, "King and the Beloved Community: A Communitarian Defense of Black Reparations," uses King's call for reparations as a starting point:

No amount of gold could provide an adequate compensation for the exploitation and humiliation of the Negro in America down through the centuries. Not all the wealth of this affluent society could meet the bill. Yet a price can be placed on unpaid wages. The ancient common law has always provided a remedy for the appropriation of the labor of one human being by another. This law should be made to apply for American Negroes. The payment should be in the form of a massive program by the government of special, compensatory measures which could be regarded as a settlement in accordance with the accepted practice of common law. Such measures would certainly be less expensive than any computation based on two centuries of unpaid wages and accumulated interest.

I am proposing, therefore, that, just as we granted a GI Bill of Rights to war veterans, America launch a broad-based and gigantic Bill of Rights for the Disadvantaged, our veterans of the long siege of denial.

Cook sees reparations as part of a "new paradigm" that arrives as reconciliation through atonement, which includes confession and restitution-based repentance.

Adjoa Aiyetoro, one of the leading--perhaps the leading--activist for reparations in the United States is a leader of N'COBRA, the National Coalition of Blacks for Reparations in America. As an activist, Aiyetoro has spoken and written extensively on the reparations movement. Her concerns are in mobilizing support, so much of her work relates to raising consciousness about reparations issues. Because of that, Aiyetoro's work involves advocating a broad and flexible agenda, which can change as the reparations movement evolves. While academics like Robert Westley have suggestions for specific plans and Mari Matsuda hypothesizes causes of actions for reparations lawsuits, Aiyetoro establishes grand goals:

[T]o stay visible and increase that visibility, to posture ourselves to be a part of the discussion that will more than likely take place behind the scenes on the form reparations should take to assure that a package of reparations and not appeasement is developed, and to stay principled, demanding accountability to African descendants.

One of the surprising elements is that even in the most recent major book on this topic, Raymond A. Winbush's edited volume Should America Pay?, we have hundreds of pages of discussion on whether the United States government and corporations should pay reparations. But there is very little discussion on what they would pay, if they were going to do so. So let us turn now to the specific proposals that can be wrung from reparationists' writings.

C. Community-Building Programs and Payments to Individuals

Most people who talk about reparations as a serious goal envision a whole-sale reordering of American society. Their agenda includes redistribution of wealth and breakdown of racism and white privilege. How the later goals will be accomplished is rarely specified. Indeed, a critical problem with reparations is that reparationists have not yet specified what they want. And it is exceedingly difficult to get somewhere until you know where it is you are going. Or, as Arthur Serota has phrased the problem, "Revolutions cannot work without a realistic finance plan." We have some statements, such as Clarence J. Munford's in Race and Reparations that we should "demand it all!"

Even Robert Westley, who is a brilliant scholar and leading theorist of reparations, does not provide a comprehensive plan. He does, however, offer a somewhat more detailed picture than most other reparations articles. He sees monetary payments to individuals, as well as commitment to community-building programs as central to the reparations agenda. His goal is "black economic independence from societal discrimination" and civil equality. That will occur through two ways. First, the people most in need will receive cash payments. He makes no attempt to specify the amount of those payments. Those payments must await, one suspects, some assessment of the damage that will flow in turn from the truth commissions that will study reparations. Second, Westley proposes the establishment of a trust fund, with trustees elected by African-American descendants of slaves. Westley acknowledges that his plan needs considerable refinement. In fact, now is a good time to begin to explore such a plan in more detail.

Randall Robinson, who bases much of his legal argument on Westley, also proposes a trust fund. The exact amount of the trust, Robinson believes, should be determined once "an assessment can be made of what it will cost to repair the long-term social damage." Robinson proposes that the trust fund provide for at least two generations of precollege education (with boarding schools for at-risk children), college for those who cannot afford it, and additional weekend schools that teach "the diverse histories and cultures of the black world." He also proposes the following: a study of the extent to which companies and families have been enriched by slavery, followed by recovery of that money, which would be reinvested in the trust; funding of black civil rights and political organizations; and commitments to Carribean and African countries, including "full debt relief, fair trade terms, and significant monetary compensation." But that is only the beginning, not a comprehensive plan.

Professor Molefi Kete Asante provides a similar statement to Westley about the range of potential reparations strategies: "Among the potential options are educational grants, health care, land or property grants, and a combination of such grants. Any reparations remedy should deal with long-term issues in the African-American community rather than a onetime cash payout." Other reparations plans are more outlandish. Perhaps the most radical plan that I have seen is that of Lee Harris, who adopts the black nationalist perspective. He proposes establishment of separate states for blacks. The proposal, which would almost surely require a constitutional amendment, is radical indeed. It is reminiscent of Nation of Islam's Lewis Farrakan's statement at the reparations rally in the summer of 2002: "We cannot settle for some little jive token. We need millions of acres that black people can build."

It is easier to state aspirational goals, rather than concrete plans. But sometimes even the general goals are hard to articulate. Perhaps Arthur Serota has given us the best statement of what reparations promise:

[T]here can be no elimination of poverty in America, no rebuilding of lives for millions of Black Americans sweltering in urban chaos and isolated by rural deprivation, no chance for millions of urban black youth staring through prison bars, hiding from warrants, dropping out of school or negotiating the violence of urban battlefields, to contemplate and develop their futures without reparations. Reparations is not merely long overdue, it is a finance plan to implement a change.

With that sense of what reparationists want, we can now turn to the next part of the cultural war: the reasons people oppose reparations. I think we will see that reparationists and their opponents rarely talk to one another. For reparationists so frequently talk about repairing past harm, which antireparationists do not believe is the fault of the present society. In fact, they place blame on an entirely different set of causes than the causes that reparationists identify. The antireparationists are, in essence, speaking a different language. They inhabit a different world, really, from the reparationists. Antireparationists place blame on black culture, rather than white society; in many instances they seek a color-blind society, while many (though by no means all) reparationists seek a society that takes account of race. Antireparationists, even if they saw a society with a racist past, do not think the current generation should pay for that past or make up for those past harms. What we have is a conflict over how we view America's racist past, as well as how best to go forward. Viewed in that way, the conflict over reparations is one of the most recent skirmishes in a decades-old war over race in the United States. The antireparationists have a whole set of arguments, which we must explore in the effort to take reparations seriously.

 

 

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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).