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Vernellia R. Randall
Professor of Law
The University of Dayton

 

   
   

 

 

Alfred L. Brophy

 excerpted from: Alfred L. Brophy, The Cultural War over Reparations for Slavery , 53 DePaul Law Review 1211-1213 (Spring 2004) (116 footnotes)

 

Much of the utility of reparations is obvious. They offer hope of realizing the contributions that African Americans have made to the American economy and society as well as the disadvantages they have suffered; they offer the hope of restoring justice, to the extent that can be done, for some of the worst crimes of history; and they hold out the promise of helping us all build a better future, together. Looked at from the black perspective, they also promise to repair past damage, incorporate blacks more fully into the benefits of American society, and let everyone know the crimes and sacrifices--the history of brutalization that is so important a part of American history--have been remembered. For whites, reparations promise some closure, some sense that injustices have been corrected, and, perhaps most importantly, an opportunity to improve the entire community. We can, one hopes, all move away from the centuries of human suffering and wasted opportunities with a commitment to improve the future. We can struggle for the future to overcome the past, to paraphrase Ralph Ellison.

But there are significant costs to reparations. They may tend to divide people along racial lines, for recalling past tragedies are, indeed, painful. Even more than recalling the past tragedies, however, reparations will require the government to draw further lines on the basis of race. For many reparationists see reparations not as a way of achieving integration and a color-blind society; they see it as a way of achieving further race-conscious action.

Eric Yamamoto is one of the rare reparationists who takes seriously the disadvantages of reparations. He acknowledges the potential of reparations to lead to feelings of victimology and political backlash. Victimhood is not just a mind set, however. There are other problems with it. Reparations talk can be distracting. Reparations may cause people to focus on past injustice, at a time when the energy should be focused somewhere else.

Reparations may also lead to an increased division in society. At a time when many people think we ought to be moving in the direction of a colorblind society, reparations talk makes that difficult. Or at least it raises the prospect of continued focus on race. At the same time, two groups of commentators, reparationists and some conservatives, see reparations as a way of ending the significance of race. For reparationists like Rhonda Magee-Andrews, the author of one of the most important articles ever written on reparations, the prospects of reparations offer the hope of someday, perhaps someday soon, ending the legal significance of race. We may be able to get to the point at which the damage has been repaired. Then, as Magee-Andrews argues in a recent pathbreaking article, "The Third Reconstruction," maybe then we can move on to a focus on helping those in the community who need help the most. The central element of attention will be need. There are also conservatives, with whom Magee-Andrews shares little in philosophy, who see reparations as a way to end the focus on race. Once there is a reckoning, the reparations can be paid and the government will stop paying attention to race. There will be no more affirmative action or other race-conscious action. However appealing such a world may appear, as a simple solution to age-old problems, it is unlikely that reparations offer that kind of closure. Difficulties of racial equality are unlikely to be solved overnight.

The reparations movement may end with some further recognition of the role of slavery and Jim Crow in American history. There may also be payments to a limited class of identifiable victims and perhaps payments to aid those most in need. There may never be a complete accounting of the costs imposed by hundreds of years of forced labor and decades of gross discrimination in voting rights, education, and employment. This may be yet another instance in which African Americans will have to be content not with what is just, but with the knowledge that they have contributed yet again to the enrichment of American society, though they have not received adequate compensation for their labors. And perhaps that makes this one of the greatest of American stories: people laboring to benefit others and building and enriching the community for the benefit of everyone. That may also be the best ground for continued advocacy of reparations: that we all have a shared future and if the many are to become as one, to paraphrase Ralph Ellison, then the community must work together. For the tragedy that is the legacy of slavery is a problem that visits us all and will continue to do so until it is overcome.

[a1]. Professor of Law, University of Alabama. J.D., Columbia University; Ph.D., Harvard University. 

 

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The Controversial Nature of Reparations ] What's at Stake? Why Are Reparations Controversial? ] The Arguments Against Reparations ] [ The Utility and Disadvantages of Reparations ]
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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).