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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 1201-1211 (Spring 2004) (116 footnotes)


The most famous statement of the arguments against reparations comes from David Horowitz, who took out a series of advertisements in college newspapers in the spring of 2001. His advertisement, entitled, "Ten Reasons Why Reparations for Slavery are a Bad Idea and Racist, Too," established the basis for the arguments against reparations. Horowitz' ten points are:

1. There Is No Single Group Clearly Responsible For The Crime Of Slavery

2. There Is No One Group That Benefitted Exclusively From Its Fruits

3. Only A Tiny Minority Of White Americans Ever Owned Slaves, And Others Gave Their Lives To Free Them

4. America Today Is A Multi-Ethnic Nation and Most Americans Have No Connection (Direct Or Indirect) To Slavery

5. The Historical Precedents Used To Justify The Reparations Claim Do Not Apply, And The Claim Itself Is Based On Race Not Injury

6. The Reparations Argument Is Based On The Unfounded Claim That All African-American Descendants of Slaves Suffer From The Economic Consequences Of Slavery And Discrimination

7. The Reparations Claim Is One More Attempt To Turn African-Americans Into Victims. It Sends A Damaging Message To The African-American Community.

8. Reparations To African Americans Have Already Been Paid

9. What About The Debt Blacks Owe To America?

10. The Reparations Claim Is A Separatist Idea That Sets African-Americans Against The Nation That Gave Them Freedom.

Others have made more modest, though perhaps more persuasive, cases against reparations. Probably the best way to address the multitude of arguments against reparations is to classify them according to broad categories, then explore the nuances of each category. The arguments may be broken down into five main categories:

(1) Those asked to pay have no liability;

(2) Compensation has been made;

(3) Compensation is immoral or compensation was never due;

(4) Compensation is impracticable or politically unworkable; and

(5) Reparations are divisive and focus attention on the past rather than the future.

A. No Moral (or Legal) Liability

It appears that the type of argument that has gained the most attention--and is advanced most seriously against reparations--is that the people currently asked to pay had nothing to do with the injustices of the past. This argument draws on a popular thought in the United States, and western culture more generally, that liability should attach to fault, that people should receive punishment (or rewards) based on their personal culpability. Carried to an extreme, as many reparations skeptics do, that implies that one should be liable only for the harms one causes, that there is no general societal culpability.

Of course, we see legislatures, even courts, acting on ideas of general culpability in many places. There are many crimes committed by government officials that lead the entire community to be liable for the actions of those officials. After Rodney King obtained a damages verdict, that verdict was satisfied by the taxpayers of Los Angeles. Very few taxpayers were actually responsible for the crime, but they had to pay for the crime. Perhaps many antireparationists will object to that example. Corporations, which are really a collection of individual shareholders, are liable for the acts of their employees. In cases of environmental pollution, companies (meaning their shareholders) are frequently held liable for decades following the pollution. For example, in 1994, Mobile Oil Company was held liable for polluting the waters of the little town of Cyril, Oklahoma, as early as the 1940s. It is likely that none of Mobile's shareholders had any direct culpability for the actions of the company's officers who decided to pollute in the 1940s. Yet the shareholders had to pay.

Corporate liability is premised on the idea that shareholders, even those who had no direct influence on the decisions, have to pay. In the United States, culpability attaches even without fault in many instances. It is natural to expect that corporations, or government bodies, will have liability for the decisions they made, sometimes decades ago.

But antireparationists will say that even though in some cases there is continuing liability, the taxpayers are the people who will have to pay. And many of those individual taxpayers have no culpability. Where is the fairness in asking people whose ancestors were not even in the United States during the period of slavery (or maybe even the period of Jim Crow) to pay reparations for crimes occurring in that time? Moreover, other entities besides the United States government have culpability for slavery, such as African nations themselves. Closely allied to the argument of innocence is the argument that there is no benefit that has been retained.

Reparationists have two responses. First, that governmental bodies, like corporations, have a continuing existence. Governments are liable for the judgments issued against them and, unfortunately, they have to satisfy those judgments using taxpayer money. The new immigrants take their new government subject to the liability existing at the time. We all take America with the good and the bad at the same time. There are a lot of opportunities here; there are also some disadvantages. Reparationists' second response is more general. It denies that the people who are claiming innocence actually are innocent. As Professor Ogletree has recently phrased it, "while black folks were sitting at the back of the bus; generations of white immigrants got to go straight to the front." It is debatable how much privilege some immigrants, particularly those from southern Europe, Asia, and the Spanish Americas, received. But the point is important and worthy of significantly more study. For if currently living whites are the beneficiaries of past discrimination against blacks, then the claims of innocence are harder to make convincingly.

It is at this point that the debate runs up against strong emotions: Americans believe they are where they are today because of their own hard work and innate talent, rather than the good fortune of their birth. That is an issue for which we need further debate, but at the present it appears that the truth is somewhere in the middle: undercompensated black labor and lack of opportunities made it possible for whites, even those whose ancestors came to the United States after the era of slavery ended, to advance more quickly than they otherwise would have. It is likely--indeed hard to dispute--that some privilege is retained.

There is yet another way that antireparationists argue that there is no liability: there is no (or little) continuing effect of slavery. Reparationists commonly argue that reparations are for the continuing effects of slavery and Jim Crow. Adjoa Aiyetoro, for instance, has said: "We're not raising claims that you should pay us because you did something to us 150 years ago. We are saying that we are injured today by the vestiges of slavery, which took away income and property that was rightfully ours." Yet antireparationists frequently maintain that the current inequality in wealth is due to black culture, not the legacy of slavery. Journalist Walter Williams, like many antireparationists, places blame on single-parent black households:

Illegitimacy among blacks today is [seventy] percent. Only [forty-one] percent of black males [fifteen] years and older are married, and only [thirty-six] percent of black children live in two-parent families. These and other indicators of family instability and its accompanying socioeconomic factors such as high crime, welfare dependency and poor educational achievement is claimed to be the legacy and vestiges of slavery, for which black Americans are due reparations.

Yet Williams points out that the incidence of single-parent families is relatively recent. In 1940, for instance, less than twenty percent of black children were born into single-parent families. Williams refers to Herbert Gutman's book, The Black Family in Slavery and Freedom, which found that in Harlem between 1905 and 1925, eighty-five percent of black children lived in two-parent families. As Williams says:

The question raised by these historical facts is: If what we see today in many black neighborhoods, as claimed by reparation advocates, are the vestiges and legacies of slavery, how come that social pathology wasn't much worse when blacks were just two or three generations out of slavery? Might it be that slavery's legacy and vestiges have a way . . . of skipping generations? In other words . . . that devastating seventy percent rate of black illegitimacy simply skipped six generations--it's a delayed effect of slavery?

That is a central argument among reparations opponents and critics of the Great Society programs of the 1960s more generally.

It is important to try to distinguish the effects of slavery and Jim Crow discrimination from other causes in determining the current wealth gap between blacks and whites. Obviously, that is central to the case for reparations. For if slavery has no lingering effect, then there is no reason to try to repair it! But we do not need to think about generation-skipping effects to link the current sad condition of the black family to slavery. The family structure is only the latest manifestation of a social policy, borne in the years after the Civil War, that did not seek to help blacks move into the mainstream of the American economy and education system. Even though the current United States social welfare policy has good intentions--which we cannot say of the policy in the years before World War II--it is designed to discourage two-parent families. It makes sense to consider the current policy as a vestige of the Jim Crow era, which was necessary because of the limited economic opportunities of that era. It is reasonable to consider the problems with single-parent black families as yet another legacy of slavery and the neglect during the Jim Crow era and as the result of lack of job opportunities.

B. Compensation Has Been Made

The next most popular argument is that reparations have been paid in the form of Great Society programs, like the war on poverty and affirmative action, as well as welfare. And are not reparations being paid right now through welfare? Why is that not enough? Those are important and reasonable questions. As Journalist Walter Williams has said:

[T]oday's blacks benefitted immensely from the horrors suffered by our ancestors. . . . In fact, if we totaled the income black Americans earned each year, and thought of ourselves as a separate nation, we'd be the 14th or 15th richest nation. Even the [thirty-four] percent of blacks considered to be poor are fairly well off by world standards. Had there not been slavery, and today's blacks were born in Africa instead of the United States, we'd be living in the same poverty that today's Africans live in and under the same brutal regimes.

There are some important questions about how much the United States owes to descendants of slaves.

To answer that, one needs to ask: What is the basis for reparations claims? If the claim is against the United States government for unpaid labor--and only unpaid labor--then it is natural to ask, how much have the slaves and their descendants received from the United States government in the form of welfare payments? It is possible that the compensation that has been paid will, on average, compensate for the unpaid labor. But one must remember that welfare is not a race-based program; everyone who meets the eligibility requirements receives assistance, regardless of race. Why should we consider welfare payments as paying down the debt? Perhaps because we lump all debts and all payments together. When reparationists argue what is owed, based on undercompensation for labor, as Richard America argues, then it is important to talk about the compensation that has already been paid. Perhaps it is right to add in welfare payments or costs spent on affirmative action as ways of off-setting the debt. This is an area in which we need substantial additional work, to explore the value that slaves contributed to the American economy and how much of that value is still retained, as well as how much value has been returned. At this point, it is impossible to make even rough guesses about how the balance sheet stands--and that is due to failure of either side to seriously address this issue. The only person who has even attempted to compute the value of the slave labor to the United States, Richard America, has made no effort to provide for an offset. Those who argue that welfare has paid the debt, conversely, make no effort to identify the size of the welfare payments that should be counted as offset, or to compare that value to the amount blacks contributed without compensation in the eras of slavery and Jim Crow, to say nothing of whether those benefits have been retained. Reparationists, by their frequent reference to ideas of "unjust enrichment," have brought on the comparison of how much has been contributed and how much has been paid. However, most reparationists compute what is owed based not on uncompensated labor alone. The huge gap between black and white economic and educational achievement stands as testimony to the legacy of slavery and Jim Crow discrimination. That gap testifies to the continued harm, which, tragically, as happens so often, is greater than the value retained. If we view the amount owed as not only the amount of value contributed, but as also including the harm imposed by slavery and Jim Crow, then full reparations have likely not been paid. For the gap in wealth between blacks and whites testifies to the lack of full reparations.

There is, moreover, the question of equal treatment. One of the great principles of American law is the equal protection principle, which requires that similarly situated people be treated alike. Have people who are making reparations claims been treated differently and worse than others? If there has been unequal treatment, then that may be a separate basis for reparations. The issue ought not to be how people would be living if their ancestors had not been brought to the United States or freely immigrated but how they are treated relative to other people here. While David Horowitz is fond of pointing out that the average annual income of residents in Benin is less than one thousand dollars, that has little relevance to how people are treated in the United States. Life is better than it would be in another country, but the relevant comparison group is other citizens of the United States. The fact that voting rights are denied to serfs in Russia does not mean that people of Russian descent in the United States are not entitled to vote, or do not have a claim if they are denied the right to vote.

There are other ways of paying the debt, though, besides cash payments. Part of the argument that reparations have been paid is the assertion that the Civil War paid that debt. Lincoln scholars are particularly active in advancing the argument that the Civil War was part of abolishing the debt to African Americans. David Horowitz' formulation is that white Christians began the antislavery movement, which ended more than two millennia of slavery. That interpretation leaves a great deal out of the historical record, of course. The Christian nations of Western Europe and North America contributed to the market for slaves; they provided an incentive for African nations to enslave Africans and then those western countries participated in "one of the greatest crimes in history." To credit the United States with abolishing slavery does not quite wipe the slate clean. For there would have been no need for abolition of slavery in the United States unless it had been imposed by law here. Even if we say that the United States fought a war to free slaves, which only begins to describe the process of the Civil War, we cannot ignore the reasons why that war was necessary.

C. Reparations Are Divisive

Despite the marked socioeconomic progress black Americans have made in this country over the past half century, the reparations movement, at bottom, encourages minorities to believe that they are really lost souls. The leaders of this movement do not talk about how such a distant crime has led to specific damages in present lives of most minorities. For them, feelings of victimization in general, not damages in the specific, are the point. So they fervently maintain that all full-grown, capable minorities ought to blame the missed opportunities of their lives on the slavery that transpired centuries ago as though their pains were interchangeable with those endured by slaves.

The final group of arguments are at the center of the culture war. They revolve around a consideration that reparations talk divides the country along racial lines. By talking about the past and by focusing on past injustices, blacks alienate themselves from the rest of the country. Reparations talk leads blacks to see themselves as victims who deserve government payments. Within the genre of "reparations are divisive," there are several subcategories. First, that blacks have a cult of victimhood. Perhaps the best-known proponent of that cult of victimhood is Professor John McWhorter of the University of California at Berkeley. Even talk of reparations or the sins of the past causes African Americans to focus improperly on the task at hand: gaining an education and rising economically.

The second subcategory is that focusing on the injustices of the past alienates blacks from American society, at a time when they should be focusing on the benefits that American society has to offer. This is central to the culture war; we have heard versions of this same argument since at least the Vietnam War era, when those who criticized the United States were told they were being un-American. The argument is, in essence, that it is more productive to spend time focusing on the benefits that blacks have by virtue of United States citizenship than the injustices they have suffered.

The third subcategory is that reparations talk divides people along racial lines. It makes blacks think that whites as a group are their oppressors; it makes whites who have no responsibility for the sins of the past feel like oppressors and plays on feelings of guilt. That division falsely (in the minds of reparations opponents) continues the harmful focus on race. At a time when the government and everyone else should be moving toward a colorblind society, reparations talk reemphasizes race. It reestablishes racial divisions that we are eliminating (or at least ought to be eliminating).

All of this leads up to the cultural war at stake over reparations. Reparations are not just about redistribution of wealth, though they certainly are controversial for that reason alone. Reparations, and the apologies that surely precede them, are about a microcosm of how we view United States history. Do we see the United States as a place of plentiful opportunity, where people can go as far as their ability and energy will take them, or as a haunted landscape full of oppression? Do we view the chasm between black and white wealth in this country as the fault of blacks and the Great Society, which intervened in the mid-1960s, to destroy the black families and the economic progress they were about to make? Or do we view it as a legacy of past state-sponsored discrimination and racial crimes? That self-image, and the accompanying narratives we tell ourselves about how we view our own accomplishments carry powerful weight: I'm wealthy and well-educated because of my merit, not because of the fortunate circumstances of my birth, or I'm poor and poorly educated because of a racist society, not because of my lack of ability or motivation.

D. Are Reparations the Best Way of Overcoming the Past?

There is one question that is rarely discussed in antireparations literature, but is nevertheless critical: are reparations the best way to spend society's limited resources? For there may be better uses for the money. Part of the decision about whether to advocate reparations turns on how much they will benefit us--and how much benefit we could get by spending our efforts elsewhere. Perhaps reparations should focus most on the people who are most in need right now and in that formulation, it looks less like reparations and more like a Great Society program to lift everyone.


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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