Slavery and Its Definition
Jean Allain and Kevin Bales
The Bellagio–Harvard Guidelines on the Legal Parameters of Slavery
The Scourge of Slavery: The Contemporary Reality of an International Human Rights Challenge
David K. Androff
Absolving the State: The Trafficking–Slavery Metaphor
Julia O’Connell Davidson
Rethinking Trafficking: Patriarchy, Poverty, and Private Wrongs in India
Alison Brysk and Aditee Maskey
Children Trafficked to the United States: Myths and Realities
Elzbieta M. Gozdziak
Debt-Bondage Slavery in India
The Many Faces of Slavery: The Example of Domestic Work
Child Domestic Workers: Protected Persons or Modern-Day Slaves?
Forcing Children to Bear Arms: A Contemporary Form of Slavery
Michael G. Wessells
Abused Migrant Women in the United States: Progress, Challenges and Recommendations
Gabriela Wasileski and Mark J. Miller
Repairing Past Injustice: Remarks on the Politics of Reparations for Slavery in the United States
Libya: The Road to Regime Change
Volume 14 ● Number 2 ● Summer/Autumn 2012—Slavery Today
Repairing Past Injustice: Remarks on the Politics of Reparations for Slavery in the United States
Many of the principal advocates of reparations today favour some form of collective reparations that would lead to the establishment of trust funds, policies, and programmes designed to strengthen black institutions and provide resources to overcome the deeply entrenched inequalities inherited from centuries of de jure discrimination.1 Bernard Boxill lays out one line of reasoning behind this. Historically, blacks were oppressed and discriminated against because they were black, in a legal–political order that assumed they deserved less than equal respect and consideration because of their race. When individuals are thus harmed solely under the description of them as members of a racial group, all members of that group suffer disadvantages, even if only in the form of the less than equal security, opportunity, and respect that attaches to membership in that group, as well as the profound stigmatisation that comes with this. Since blacks have been harmed and disadvantaged as a group in just this way, they deserve compensation as a group.2
Another line of reasoning leading to a similar conclusion starts from the oft-noted fact that de jure discrimination against blacks, which was a systemic feature of American society for most of its history, did not disappear without a trace when the laws were changed in the 1960s. It left behind entrenched patterns of disadvantage and structures of inequality that cannot effectively be dealt with on an individual basis but only through resources, policies, programmes, and reforms aimed precisely at repairing them, at making blacks, as a group, more nearly equal to other groups in our society. Orlando Patterson sums up this line of reasoning:
[O]nly the representative actor mobilising the agents of state can deal with … the accumulated patterns of discrimination over long periods of time against particular groups of people that create not only generalized disabilities of a collective nature but also generalized advantages to those who benefit from the discrimination … Afro-Americans spent two-thirds of their history under a system of slavery; they suffered the peculiar indignities and disabilities of chronic, nationally pervasive racism … and the pain, anguish, and legal disabilities of Jim Crow laws. Most important of all, only they were systematically shut out of the emerging industrial revolution at the end of the nineteenth century, preventing them from developing those critical patterns of behavior and cultural tools necessary for keeping in phase with the nation’s changing economy … It is impossible to measure the individual impact of such collectively accumulated Acts of History. Their effects are pervasive, collective, and diffuse … For this reason, they can be dealt with only by representative agents whose task is to correct and remedy the lingering systemic impacts.3
The remedies for such collectively accumulated, generalised disadvantages would obviously differ from the sort of individual compensation for wrongful acts familiar to us from civil law. For one thing, it seems impossible to spell out in any meaningful way the idea of providing something “equivalent in value” to the losses sustained and the pain and suffering endured. For another, since the defendants in reparations lawsuits will mostly be corporate agents—in the broad sense of bodies recognised in law as incorporated, such as states, firms, and other public and private institutions—those paying for damages may well overlap with those being compensated: black taxpayers and stockholders, for instance, would probably contribute to any government or corporate reparations for slavery and segregation. In dealing with “harms” of this magnitude we need, it seems, a broader moral–political notion of “repairing” the damage inflicted by unjust actions. Nevertheless, in current discussions of reparations for slavery, the tort model of compensation for damages, despite all its evident shortcomings, tends to predominate, perhaps because it is by far the most extensively developed legal conception of redressing wrongful harm. As a result of this discrepancy, judicial recourse is often regarded in an instrumental light, as a narrowly tailored legal means to a broader—in the final analysis, political—goal of community rehabilitation. Thus, critics of reparations lawsuits who oppose putting a dollar amount on centuries of African American suffering (e.g., Shelby Steele), treating the atrocities of slavery and Jim Crow as simply a civil-law matter (e.g., Patricia Williams), or closing the books on past oppression through monetary compensation (e.g., Adolph Reed) are targeting only part of the larger picture of redress and rehabilitation painted by many leading reparations advocates.
Nevertheless, it is undeniable that the legal path apparently open is also manifestly inappropriate. Tort law was obviously not designed to remedy collective, inter-generational wrongs whose roots lie centuries in the past. And even if the formidable obstacles to successful lawsuits could be overcome, there remains the palpable disproportion between monetary compensation and the injuries to body and soul during centuries of pervasive oppression—a disproportion which, in the eyes of some critics, lends to any such payments the character of “blood money”.4 Moreover, the ultimate defendant in this strategy, the Federal Government, could dismiss suits against it by appeal to sovereign immunity (it has to consent to being sued) or to the statute of limitations (six years in federal cases) on the wrongful acts at issue. On the other hand, suing only local governments, private companies, and other institutions that do not enjoy such immunity, or confining the suits to acts committed during the lifetimes of the claimed victims or their immediate ancestors (e.g., to wrongs perpetrated in the waning decades of legalised discrimination) would result in another troublesome gap—symbolic as well as material—between intentions and results. As Willie E. Gary, a long-time member of the Reparations Co-ordinating Committee (RCC) centred at Harvard Law School, once put the point in a Harper’s Magazine forum:
Obviously, as a lawyer you want to make your job as easy as you can … The only problem with it is that this kind of lawsuit is going to appear in the court of public opinion, and you’re going to need the support of the people … What about those people who, for whatever reason, maybe were excluded because you started in the 1940s? … What’s more important, to tell the real story of American slavery or to win specific damages from 1940 onward? … No one should be left behind … it’s not fair just for a few and not for all.5
As noted above, the integration of judicial recourse into a larger legal–political strategy of reparations—which is in fact the intention of most leading advocates—is the usual way of keeping such gaps between what morality demands and what the law can deliver from becoming impassable. Accordingly, the filing of multiple class-action lawsuits is viewed as a means to the larger—ultimately legislative—goals of the reparations movement. The hope is that some of these suits will give sufficient indication of succeeding, and that the negative publicity from them will be sufficiently unwelcome, to cause the defendants—corporations and other private institutions, local and state governments—to lobby the Federal Government to step in and resolve the matter through legislation. Which legal theories will be most effective in moving such suits forward sufficiently to pressure the legislature to get involved is, however, a question still in dispute.6 In any case, as is usual with class-action lawsuits, only much more so in this instance, there will surely be fiercely contested issues of standing, cause of action, class certification, and the like. And given the specific object of the suits, there will also be procedural problems having to do with subject-matter jurisdiction, sovereign immunity, and the statute of limitations, among other things. With all these legal problems in view, one can only agree with Willie E. Gary when he says: “We’re going to need help politically, because we don’t have the law squarely on our side … this kind of lawsuit is going to appear in the court of public opinion.”7
Before turning to that “court”, I want to consider briefly the argument against pursuing litigation advanced by Roy L. Brooks.8 While he discusses in some detail the many procedural problems that beset reparations lawsuits, his main objection is of a general nature: the tort model is inherently adversarial and thus ill-suited to promoting the racial harmony that should be the ultimate aim of the redress movement (pp. 98, 138). He proposes instead a model of atonement, which gives pride of place to “genuine”—as opposed to “coerced”—apology and regards material reparations a necessary but derivative sign of that genuineness (chapter 5). This path, he argues, more readily leads to the forgiveness and racial healing that are required for national reconciliation.
What is missing from his account, however, is any discussion of how, practically–politically, national atonement is to be brought about. Brooks stresses the moral obligation to atone (p. 169) and looks to “morally motivated politicians” (p. 170) to bring this about. At the same time, he is well aware that the civil rights movement, which seems to serve as an exemplar of the atonement route, was itself controversial and divisive (pp. 208–10), for political struggle is generally no less contentious than litigation. If the “black redress movement”, as he terms it (p. 208, my emphasis), is to have any chance of success, it will certainly not be able to rely on moral appeals alone. But Brooks offers no other strategies to achieve the ends he envisages; and if he wants to avoid all adversarial relations and contentious situations, it’s not clear how he could.9 In short, there appears to be no path to atonement that does not lead through struggle. The aims of the reparations strategy endorsed in this paper also include sparking a national debate that could help to re-moralise a de-moralised society. And it views litigation primarily as a means to that and other political and legislative ends.
Discussions of reparations typically stress their practical, political, and hence contextual character. They are meant to redress past wrongs, to repair the harms inflicted, and to rehabilitate their victims. So it is always appropriate and usually imperative to consider whether the means of reparation under consideration will effectively lead to the ends envisaged, what their probable consequences and side effects are, and which alternatives are available—in short, whether they are the best, or at least one good, route to repair, all things considered. Such matters are, of course, highly contextual, and so we should not expect a “general theory” of reparations for any and every circumstance. Thus, Martha Minow voices the following “contextual concerns” about reparations:
1) don’t assume we know their effect in each situation; 2) consider whether reparations will promote reconciliation or instead perpetuate or deepen social divisions; 3) ask whether reparations would really improve material conditions of survivors; and 4) ask if reparations and the process for securing them would in fact alter attitudes toward people at the margins.10
In the present context, the third question concerns, among other things, the likely effectiveness of reparations as a means of repairing the lingering damages from slavery and its aftermath, particularly those endured by the segment of the black community that Charles Ogletree refers to as “the poorest of the poor”:
The reparations movement must aim at undoing the damage where that damage has been most severe and where the history of race in America has left its most telling evidence. The legacy of slavery and racial discrimination is seen in well-documented racial disparities in access to education, health care, housing, insurance, employment, and other social goods. The reparations movement must therefore focus on the poorest of the poor—it must promote social recovery for the bottom-stuck, providing an opportunity to address comprehensively the problems of those who have not substantially benefited from integration or affirmative action.11
Remedying the condition of the urban, black “underclass”, who suffer simultaneously the deepest injuries of race and class, appears in fact to be an overlapping concern of reparations advocates from a wide variety of positions. The “sub-proletarianisation” of a “hyper-segregated”, racially identified portion of the population, amongst whom “law and order” is maintained by the highest rate of incarceration in the industrialised world, is perhaps the cruellest affliction presently visited upon African Americans by centuries of racial oppression.12 And in the absence of an effective political will to address this deplorable state of affairs, the decision regarding mobilisation for reparations seems to some advocates to be reparations or nothing—that is, reparations or yet more generations of poor, urban blacks delivered up to the depredations of racial injustice.
To some liberal and left critics, however, the more promising path towards repairing racial inequities appears still to be that of a “class politics” mobilising the exploited, oppressed, and marginalised segments of the population across racial, ethnic, gender, and all other non-socioeconomic dividing lines. Thus, for instance, William Julius Wilson has recommended a more or less social-democratic approach to the severe problems of “the truly disadvantaged”:
[S]olutions to the broader problems of economic marginality in this country, including those that stem from changes in the global economy, can go a long way toward addressing the problems of inner-city joblessness, especially if the application of resources includes wise targeting to the groups most in need of help. Discussions that emphasize common solutions to commonly shared problems promote a sense of unity, regardless of the different degrees of severity to which these problems afflict certain groups. Such messages bring races together, not apart, and are especially important during periods of racial tension … [A] vision of interracial unity that acknowledges distinctively racial problems but nonetheless emphasizes common solutions to common problems is more important now than ever … This vision emphasizes issues and programs that concern families of all racial and ethnic groups so that individuals in these groups will come to see their mutual interests and join in a multiracial coalition.13
Adolph Reed espouses a more radical version of class politics:
[R]eparations talk is rooted in … a politics of elite-brokerage and entreaty to the ruling class and its official conscience … [It] is not equipped to challenge existing relations of power and distribution other than marginally … We are in one of those rare moments in American history—like the 1880s and 1890s and the Great Depression—when common circumstances of economic and social insecurity have strengthened the potential for building broad solidarity across race, gender, and other identities around shared concerns of daily life. These are concerns that … can be pursued effectively only by struggling to unite a wide section of the American population that is denied those essential social benefits or lives in fear of losing them.14
And Glen Loury has defended a similar position from a different standpoint:
However emotionally satisfying it might be and however righteous in the abstract, the [reparations] movement is a spectacularly poor political strategy, one that could well do more harm than good for the long-term interests of blacks … By framing the question in terms of historic crimes perpetrated against blacks and by seeking redress for blacks alone, reparations advocacy makes it less likely that political coalitions can be forged with other non-white and low-income voters that might implement more progressive social policies for the nation as a whole … Rather than talk about the past, a better strategy could identify the needs of the most disadvantaged Americans and then try to see how they can be met through progressive social politics.15
Of course, the overriding practical–political question here is whether this assessment of the present possibilities for class politics is correct, or at least more nearly so than the diagnosis by many reparations advocates of the exhaustion of progressive energies. If class politics through coalition were in fact a more promising path to overcoming the racial disparities that haunt American life, the arguments of the critics would, it seems to me, be valid. For reparations are undeniably an uncertain route to deep and lasting change, and one that is vulnerable at every turn to the contingencies of resource scarcity, competing priorities, and partisan politics.16 Reparations might still be pursued for symbolic purposes, but material repair could be achieved by more direct and less divisive means.
However, if class politics is not in fact a feasible path in present circumstances, how many more generations of poor, black, children should be sacrificed before trying a different path? Reparations might be the only, or at least the best, chance to effect significant change in the near term. I will not venture to decide this issue, but it is important to be clear about what hangs on it: if Wilson, Reed, Loury, and others are wrong about the present potential for reformist or progressive class politics, the oppressive legacy of slavery might well persist for the indefinite future. And that is a risk many reparations activists are unwilling to run.
One might also note, on their behalf, that the criticisms cited above give no independent weight to the legal strategy at the heart of the politics of reparations. Reed, for instance, judges the likelihood of success of the reparations movement on the same grounds as other recent, largely failed, attempts at a politics of race, and comes to the conclusion that it is “clearly a political dead end”, and “obviously a nonstarter” in American politics: “After all, support for affirmative action has eroded significantly, and reparations raises the ante on compensatory policy exponentially.”17 As the mention of affirmative action might remind us, however, there are two distinguishable strands, legal and political, entwined in the struggle for reparations. Whether and to what extent the multiple class-action lawsuits will succeed in the courts is a critical issue, which it is difficult to decide in advance of their filing and adjudication.
On the other hand, even the strongest proponents of judicial recourse recognise its interdependence with political recourse to a mobilised public opinion. How likely is this? Predictions are especially hazardous in this connection. If reparations were to remain primarily the business of class-action lawyers and political elites, as Reed thinks they will, then the desired symbiosis of law and politics would have failed to materialise, and with it, perhaps, the larger goals of the reparations movement. Movement leaders seem aware of this, but they have only begun to build connections to black churches and grassroots organisations, or to build coalitions with progressive non-black groups. How successful they are will determine whether they can close the gap that Reed notes between a broad-based political movement for racial justice and a judicialised form of “elite-brokerage”, which “presumes a coherent, knowable black agenda that can be determined outside of democratic, participatory processes among those in whose names decisions are to be made and resources allocated”.18 Reed’s complaint about the movement’s “complete disregard for the simplest, most mundane question about any political mobilization: How can we imagine building a political force that would enable us to prevail on this issue?” is an exaggeration, but one with more than a kernel of truth. In any case, the substantive issue of whether such a force can and will be built around reparations is not yet decided. It will depend in large part on what reparations activists actually do to build up black participation in the movement and coalitions with non-black supporters—and, of course, on how other groups respond to them.
This is also true of another issue that is implied by Reed’s characterisation of reparations as a “nonstarter in American politics” and is explicitly raised by a number of other critics: reparations demands threaten to be racially divisive and may well provoke a backlash among whites—or perhaps among non-blacks generally—more rancorous than anything generated by affirmative action. And it is true that there is at present a huge discrepancy between blacks and whites on the question of reparations for slavery, with overwhelming majorities of each on opposite sides of the issue. One can detect already, in these very early stages of the public discussion, how readily the issue lends itself to fomenting racial resentment.19
In short, there is little doubt that once reparations moves to centre stage in the public arena, it will be used by committed opponents of race-targeted programmes for African Americans to fan the flames of racial division and enlist in their cause as many supporters from other parts of the spectrum of racial politics as they can. And should they succeed, African Americans could be left in an even worse position than they are now. One can only begin to imagine the bitter resentment that would generate amongst them. These are undoubtedly very real risks, which reparations advocates have to take seriously and consider carefully. Of course, abolitionists in the nineteenth century and civil rights activists in the twentieth ran similar risks. And, notwithstanding the often considerable costs, we are all the better for their having run them. So there are no easy answers here. It is a matter that individuals and groups—particularly those whose lives would be most affected by its success or failure—will have to decide for themselves.
Even when the focus is restricted to political mobilisation among African Americans themselves, however, there is strong disagreement about reparations. Some critics who are generally opposed to black-nationalist politics and in favour of building a transracial, united front around socio-economic issues see the self-racialising effects of reparations politics as regressive. Thus, Reed criticises “the dubious politics that undergirds this movement” for wrongly taking “a sense of racial peoplehood as the primary basis for political identity” and seeking “to build on the principle of racial solidarity”.20 This line of criticism sees the struggle for reparations as a form of racialised identity politics that is just the other face of racial divisiveness and thus a barrier to the sort of progressive politics needed to improve the condition of the truly disadvantaged across the board.
Moreover, the type of identity it promotes, according to these critics, reinforces rather than reduces the biological essentialism that has been at the heart of modern racism. It does not make sense, on this view, to seek to repair the ravages of racism while appealing to a racialised group identity. This is, to be sure, a dilemma familiar to many historically marginalised, excluded, and oppressed groups, whose very persecution typically produces heightened forms of group consciousness. And advocates of reparations may respond to such critics that it makes even less sense to suppose that a sense of solidarity forged during centuries of pervasive, brutal, racial oppression could or should be dissolved while the injuries that resulted still persist. On this view, to abolish race consciousness for remedial purposes without removing the racially inflected harms produced through racial classification for purposes of domination and exploitation would be a fateful political mistake. Furthermore, it is not only black “identity politics” that considers black solidarity to be important for overcoming racial oppression; this is true of many non-identitarian approaches to the politics of race as well.21
Nevertheless, it will be—and has been—objected that organising black solidarity around issues of racial oppression, as the reparations movement would like to do, inevitably runs the risk of encouraging what critics see as a “victim-focused” identity, or at least a race-consciousness that is at bottom a consciousness of “victimization”.22 On this view, moreover, victimisation is the flip side of a “paternalism” that attributes all effective agency and transformative power to the white establishment. Although this risk is undeniably real, however, it is again difficult to make any certain predictions concerning it. For here, too, how things will go will depend on what people do. As abolitionism and the civil rights movement demonstrate, it is not set in stone that race consciousness forged in the struggle against racial oppression need have this character. Depending upon circumstances, such struggle can itself enhance effective agency and transformative power.
Finally, the history of black liberation in America clearly indicates that autonomous black organising need not be separatist in intent or effect: “[It] has not only advanced the causes of African Americans, but has made great contributions toward political and economic democratization of the U.S.”23 This indicates that the class politics-versus-identity politics opposition proposed by some critics does not exhaust the spectrum of political possibilities. As the civil rights movement showed, it is possible to strengthen organisations, associations, and the like within black civil society, while at the same time strengthening ties to, and building coalitions with, others in a broad-based movement for racial justice. Whether this can be accomplished specifically around the issue of reparations for slavery remains to be seen. In any case, it is a matter not for scientific prediction but for political practice; it will depend on what sorts of relations the reparations movement is able to forge with other groups—not only with potentially supportive whites but also with the millions of Asian and Hispanic immigrants and their children who have altered the face of America since the civil rights movement—and on how those groups themselves enter into reparations politics.
So the critical practical–political questions remain, I think, politically open: what are the chances for success and failure, the likely consequences and side effects, the costs and risks of a national reparations movement in this society at this historical conjuncture? It is interesting to note that many black organisations, ranging from nationalist and radical organisations like the National Coalition of Blacks for Reparations in America (N’COBRA), the Nation of Islam, and the Black Radical Congress, to liberal civil rights organisations such as the National Association for the Advancement of Colored People and the Southern Christian Leadership Conference, have in effect answered that question for themselves by deciding to join in the struggle for reparations. The more actors that become involved, the less the movement has the character of “elite-brokerage” that Reed objects to and the more it takes on the character of “democratic participatory process” he endorses as a model of black politics. In fact, it is just this prospect of mobilising the black community across social, economic, and even political divides that recommends reparations to activists seeking to revitalise the black liberation movement.
At the same time, the multiplication of political actors means a diminution of movement self‑discipline. This may be a bad or good thing in general, but it raises some thorny problems in the particular case of reparations. Reed mentions the possibility of a small army of “quacks” appearing on the scene to offer their services as experts on who qualifies for reparations—genealogists, DNA specialists, and the like. The recent history of reparations cases suggests, however, that the greater danger is legal quackery. The very character of the judicial route invites “renegade” class-action lawyers to stake their own claims. This is, for instance, what happened with the reparations suits on behalf of Holocaust victims in Germany, Switzerland, Holland, France, and Austria. The broader political effects of what sometimes had the appearance of a class-action “free-for-all” were sufficiently worrying to cause Gabriel Schoenfeld to publish a piece in Commentary, a journal sponsored by the American Jewish Committee, with the following admonition:
A growing number of attorneys practice the new specialty of Holocaust law. Although they like to wrap themselves in the rhetoric of a sacred cause, a New York Times story suggests an admixture that is at least 99 parts profane. In the free-for-all to obtain Holocaust victims as clients … the executive director of the World Jewish Congress has warned, “Holocaust survivors are being exploited by a feeding frenzy of fee-grabbing lawyers.”24
And Schoenfeld voices related criticisms of attention-grabbing politicians and power-grabbing organisations. All of this has, he maintains, not only stained Jewish honour but also contributed to a rising tide of anti-Semitism in Europe:
[Jewish] organizations are pursuing an agenda of their own, and have been deterred not at all by the undifferentiated scramble for compensation they have unleashed. Quite apart from the merits or demerits of individual claims, that agenda may be inflicting injuries evermore costly to Jewish interests … Stoking the fires of anti-Semitism on the far Right is only one and by no means the most significant danger. The real peril comes not from the fringe but from the damage done in the European political center … it is impossible to say for sure, but one senses that moral and political capital has been heedlessly squandered.25
It is not difficult to see how similar costs could be incurred through pursuing reparations for slavery. Although the RCC lawyers are working pro bono, a class-action “feeding frenzy” among free-lancers, particularly if it involved multiple suits for individual reparations—as it probably will—could swell the tide of anti-black racism to dangerously high levels, squander moral and political capital, and damage the cause of racial justice in the American political centre. In short, if the degree of control over legal recourse is an important factor in the political arena, the failure of Jewish organisations to maintain adequate control over Holocaust reparations lawsuits may stand as a warning to the slavery reparations movement: there are additional risks to be weighed in this regard.
To help tie together these practical–political reflections, let me turn to an earlier review of reparations movements by Roy L. Brooks.26 He concludes that there are four general “conditions” for successful redress: (1) the claims for redress must, in the end, be put into the hands of legislators; (2) political pressure must be brought to bear on the legislators; (3) there must be strong internal support for reparations among the victims—it must be a top priority; (4) although the politics of redress claims overshadow their merits, such claims must be meritorious.27 The “prerequisites” he lists for satisfying the fourth condition are easily met in the case of slavery and segregation: a well-documented human injustice was done to an identifiable group of victims, the current members of which continue to suffer harm. The first three “conditions” all turn on the politics of reparations. Satisfying (1) clearly depends on satisfying (2), and that depends on satisfying (3), gaining strong internal support among African Americans, but also, one should add, on satisfying (3*), gaining sufficient external support among non-black Americans. I shall briefly consider only these last two.
(3) Among African Americans, support for reparations is evidently on the rise, as the movement gains the backing of more mainstream organisations, even before the RCC has gone public with all its lawsuits, and even before the public hearings, fact-finding, and the like that the latter will presumably generate have begun to do their work. So it seems entirely within the realm of possibility that the redress movement could become a top priority for African Americans, particularly if it is able to enlist the support of the black churches and other black grassroots organisations. As the principal aim of these suits is to establish publicly administered funds, policies, and programmes for repairing damage to the infrastructures of African American life in the United States, especially in inner-city ghettos, the charge by some blacks that this is a diversion from the real problems they face can, it seems, be met.
And the argument that blacks can’t effectively mobilise around past grievances and ascriptive identities are less than conclusive, when the movement’s aim is precisely to repair the present legacy of those past injustices, whose victims were wronged precisely on the basis of racial classification. So there seems to be no conclusive reason why the reparations movement could not, as N’COBRA and other activist groups predict it will, reignite the black liberation movement, unify and empower blacks, and thus enhance their political agency in American public life.
On the other hand, critics are right, I think, to warn that the failure of such a broad-based movement for reparations could significantly deepen the sense of black alienation and leave those segments of the community most in need of repair even worse off—by draining political energies and resources, by depleting moral capital and good will, and by exacerbating racial divisiveness. Nor can there be any doubt that legislated reparations will not be handed to the descendants of the victims of slavery: they will have to be fought for, as was every other step forward in black liberation. And as in all previous victories, support from significant segments of the non-black population will be crucial.
(3*) Building such support is no easy matter: in addition to all the usual pitfalls of black–white racial politics, many non-blacks, including many who are not racists, will wonder whether it is fair for present taxpayers to pay for the misdeeds of past wrongdoers, particularly when their own ancestors were not among them—as the more than fifty million new, first- and second-generation Americans since the 1960s are likely to object. Effectively distinguishing in the public sphere between collective guilt and collective responsibility (in the sense of liability), convincingly tying the latter to the continuity of our constitutional tradition, and instilling a sense that all Americans are “joined at the hip” and share a common fate—in the heat of public debate, when all available means of obfuscation, confusion, misinformation, spinning, demagoguery, and worse are sure to be deployed in opposition—will, to understate the problem, not be easy.28 Prognostication is surely at its weakest here, and the risks just as surely at their greatest.
Prognostication is weak and risks are high precisely because this, too, is at bottom a question of political practice and not of scientific prediction. More to the point, given that the RCC and others have already begun to proceed with reparations lawsuits and that a number of important African American organisations have already joined the movement for reparations, the question before us is not whether reparations are right or wrong “in the abstract”, but rather whether or not to support the movement that is “concretely” under way. The course of events has rendered moot political debates of the “to be or not to be” variety. Reparations for slavery and segregation are already on the political agenda, so the question we face is rather, “For or against?”
I have suggested that whatever the legal tangles involved, the moral–political justice of reparations is clear.29 An objection that might be raised, however, is whether it is fair to seek to repair the damaged infrastructures only of African American life when other groups suffer from similar social ills. Reparations could help strengthen black institutions, it might be argued, but they won’t address the plight of the many disadvantaged non-blacks. Would that be just?
It is important to keep in mind that we are primarily concerned here with issues of corrective not distributive justice, in particular, with what is justly owed African Americans in view of past wrongs, and with repairing the specific racial injuries inflicted upon them over several centuries. Reparations is not a programme for general social reform; nor are black Americans morally obliged to redress all social injustices before, or while, addressing those under which they suffer.30 For the broader purposes of distributive social justice, a different rationale and a different politics are required.
On the other hand, the racially focused character of the reparations movement does raise practical–political problems for building the sorts of coalitions needed not only for progressive struggles generally but for the success of the reparations movement itself. The reactions of other deprived segments of the population to an agenda targeting only black disadvantages could heighten divisiveness among potential allies and choke off political support for reparations. This is, it seems to me, a very real problem; but it is a practical and not a moral problem. It does not speak to the injustice of reparations but to their difficulty. Much will depend on how leaders of other disadvantaged groups deal with the reactions of their members—for instance, on whether they seek to direct them towards governmental and corporate powers-that-be in an effort to gain justice for their own constituents as well.31
For groups who do not suffer from systematic disadvantages, the politics of the situation are less clouded. The moral–political justice of the reparations claim is as clear as that of any such claim can be: repair of the persistent harms of racial slavery and segregation is long overdue. And, as I have argued elsewhere, the cultural–political need for heightening historical consciousness is no less pressing.32 Given a chance, the reparations debate might well contribute not only to a surge of black participation in political discourse but also to broadening and deepening the general understanding of how slavery and segregation have shaped our society and culture, and to concentrating public attention on the inherited injuries of race.
As difficult as the last may be, there is no other way of coming to terms with a past that still haunts the present than facing up to it. Until institutionalised racism is widely understood to have been integral to our history and identity as a nation, the sort of transracial political solidarity needed for democratic solutions to problems of social justice in the United States will remain fleeting and fragile. The history of slavery and its aftermath has set the stage for the interrelated histories of all ethnic groups in our society; they have been socially and economically positioned by it and their fates have been inextricably entangled in the racialised politics that is its legacy. At present, reparations may well be an effective way to ignite a “national conversation on race” and to gather energies for an all-out attack on its not-very-hidden injuries—which are, after 350 years, still our national disgrace. It seems, in any case, to be the one way that is actually on offer.
2. Bernard Boxill, Blacks and Social Justice (Totowa, N.J.: Rowman and Allanheld, 1984), pp. 152–4.
3. Orlando Patterson, The Ordeal of Integration (Washington, D.C.: Civitas/Counterpoint, 1997), pp. 121–2.
4. See, for instance, Adolph Reed, “The Case against Reparations”, Progressive, December 2000, pp. 15–17.
5. “Making the Case for Racial Reparations: Does America Owe a Debt to the Descendants of Its Slaves? A Forum”, Harper’s Magazine, November 2000, p. 42. In addition to Gary, participants included Alexander J. Pires Jr., Richard F. Scruggs, and Dennis C. Sweet III. Gary, Pires, and Sweet have since allied themselves with the RCC.
6. A number of advocates favour suing for restitution under “unjust enrichment” from uncompensated labour; but in addition to ignoring the multifarious harms not directly related to production, this requires a rather precise accounting of what was wrongfully taken from whom, who profited (and by which amounts), and who now pays whom how much. On the other hand, this strategy offers the possibility of arguing that the harms and benefits of unjust enrichment continue to the present day and thus that the statute of limitations for filing suits should be correspondingly extended. See, for example, Robert Westley, “Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?”, Boston College Law Review 40 (1998), pp. 429–76. By contrast, in the Tulsa race riot suit filed by the RCC in 2003 and subsequently dismissed on statute of limitations grounds, one of the main arguments was that state actions violated the due-process clause of the 14th Amendment.
7. Harper’s Magazine forum, pp. 40, 42. In the cases of German, Austrian, Swiss, French, and Dutch companies sued by Holocaust survivors and other victims of the Nazis, the pressure of public opinion was crucial to settling what were generally perceived to be legally weak suits. One important factor was the damage, and threat of continuing damage, to the reputations of the defendants.
8. Roy L. Brooks, Atonement and Forgiveness: A New Model for Black Reparations (Berkeley and Los Angeles: University of California Press, 2004). The page numbers in parentheses in the remainder of this section refer to that work.
9. Somewhat inconsistently, Brooks “is not opposed to the use of litigation as backup to failed legislation” (p. 258, n. 168; p. 195). But isn’t that just the situation in which we find ourselves? In my opinion, Brooks’s most telling criticism of the RCC strategy of starting with litigation is the pre-trial dismissal of previous reparations lawsuits against the government (pp. 119–31). If that continues, suits against corporations and other private transgenerational institutions could be the only adjudicatory path left open (pp. 132–8). And it is quite uncertain what they would contribute to the larger political aims of the movement.
10. Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, Mass.: Beacon, 1998), p. 132. She is recounting advice offered by Eric Yamamoto, an advocate for Japanese Americans interned during the Second World War.
11. Charles J. Ogletree, “Litigating the Legacy of Slavery”, New York Times, 31 March 2002.
12. This formulation is taken from Sandiata Keita Cha-Jua, “Slavery, Racist Violence, American Apartheid: The Case for Reparations”, New Politics 8, no. 3 (July 2001), p. 49. See also the historical–sociological remarks on this situation by Loïc Wacquant, “From Slavery to Mass Incarceration”, New Left Review 13 (January–February 2002). He argues that the populations of urban, black ghettos have become “functionally redundant” in recent decades, and that this has led to the “de-proletarianisation” of segments of the former black working class. The socio-spatial confinement of this socio-culturally stigmatised underclass, and their banishment from the institutions of the larger society, are supported by a huge “carceral apparatus” that warehouses the potentially dangerous elements among them.
13. William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Vintage, 1997), pp. xx–xxi.
14. Reed, “The Case against Reparations”.
15. Glenn C. Loury, “Reparations for Blacks? NO”, NY Daily News, 20 September 2002.
16. Consider, for instance, the ultimate failure of South Africa to implement the reparations recommendations of the Truth and Reconciliation Commission (TRC). That has had a decidedly negative effect on the public perception of the TRC’s overall success. In his masterfully edited volume, Handbook of Reparations (Oxford: Oxford University Press, 2006), Pablo De Greiff articulates an empirically well-grounded scepticism regarding efforts to turn programmes of reparations into the means of solving structural problems of poverty and equality. De Greiff is referring to development in less-developed societies; the outlook might be less dim for historically depressed segments of highly developed societies.
17. Reed, “The Case against Reparations”.
19. See, for example, the ad placed by David Horowitz in various college newspapers in the spring of 2001, “Ten Reasons Why Reparations for Slavery Is a Bad Idea—and Racist Too”. Reprinted in Ronald P. Salzberger and Mary C. Turck, eds., Reparations for Slavery: A Reader (Lanham, Md.: Rowman and Littlefield, 2004), pp. 127–30.
20. Reed, “The Case against Reparations”. Reed is apparently targeting the black-nationalist roots of the contemporary reparations movement. The question is how far from those roots it has grown and can continue to grow.
21. See Tommie Shelby, We Who Are Dark: The Philosophical Foundations of Black Solidarity (Cambridge: Harvard University Press, 2005), for a conception of race-conscious politics aimed at ending anti-black racism that differs from black nationalism or any other form of black identity politics. See also Lawrie Balfour, “Reparations after Identity Politics”, Political Theory 33, no. 6 (December 2005), pp. 786–811. For a broader discussion of varieties of African American political thought, see Michael C. Dawson, Black Visions (Chicago: University of Chicago Press, 2001).
22. See, for instance, the pieces by Armstrong Williams, John McWhorter, and Shelby Steele in Raymond A. Winbush, ed., Should America Pay? Slavery and the Raging Debate on Reparations (New York: Harper Collins, 2003). The phrases in quotation marks are from Steele, p. 198.
23. Cha-Jua, “Slavery, Racist Violence, American Apartheid”, p. 60.
24. Gabriel Schoenfeld, “Holocaust Reparations—A Growing Scandal”, Commentary, September 2000, p. 29. Among the “fee-grabbing” lawyers he singles out for mention is a certain Edward Fagan, who for his role in the Swiss settlement submitted a bill for $640 per hour—close to the amount of the average pension that Holocaust survivors today receive from the German government in one year. This same Fagan, it should be noted, has already made an early appearance on the slavery reparations scene: he is involved in a class-action suit filed on behalf of Deadria Farmer-Paellmann and millions of other slave descendants in March 2002, a suit that jumped the RCC’s gun! It was subsequently combined with a number of other reparations suits and heard in Chicago by US District Court Judge Charles Norgle, who dismissed it “without prejudice” in 2004, as beyond the constitutional authority of his court, lacking in specific connection between the plaintiffs and the defendants, and exceeding the statute of limitations.
25. Ibid., p. 33. The remarks about Jewish honour appear on p. 34.
26. Roy L. Brooks, “The Age of Apology”, in When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice, ed. Brooks (New York: New York University Press, 1999), pp. 1–11.
27. Ibid., pp. 6–7.
28. See my discussion of the politics of race in “Vergangenheitsbewältigung in the USA: On the Politics of the Memory of Slavery”, Political Theory 30, no. 5 (October 2002), pp. 623–48.
29. See my more extended treatment of this aspect of reparations in the essay cited in n. 1.
30. I do agree, however, that judgements concerning the justice of reparations in particular circumstances have to be made “all things considered”. Other legitimate moral–political claims have to be taken into account and, if conflicting, weighed against reparations claims. But I am assuming that resources dedicated to reparations for slavery need not come at the cost of other disadvantaged groups—they might, for instance, come from rescinding part of the more than one trillion dollars in tax cuts bestowed upon “the truly advantaged” by the George W. Bush administration. Furthermore, in the case of the descendants of slaves, the claims of corrective and distributive justice tend to be reinforcing rather than competing. The same could be said of Native Americans. I am grateful to Martha Biondi for pressing this point and the next.
31. See Lani Guinier and Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (Cambridge: Harvard University Press, 2002), who make a case for “enlisting race” rather than ignoring it when building multiracial coalitions.
32. See the essay cited in n. 28.