| 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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