Repairing Past Injustice: Remarks on the Politics of Reparations for Slavery in the United States

Thomas McCarthy is professor emeritus of philosophy at Northwestern University, Illinois.

In this paper, I want to examine some of the practical–political arguments for and against pursuing at the present time reparations for slavery in the United States (sections II and III). Before doing so, however, I shall take a very brief look at the legal strategies that form an integral part of reparations politics (section I). It is important to note at the start that precisely because the issues I shall be focusing on are “practical–political” in nature, they depend essentially on the contingencies of political practice. Certainty is out of place here. My aim is only to set out clearly what appear to me to be the most important arguments, pro and con; where I do offer some (very preliminary) assessments, I do so less to decide the issues than to sharpen them. The inconclusiveness of this dialectical approach may be partially offset by the fact that the key decision to proceed with reparations has already been made. Because the basic issue is in this sense moot, the considerations I set out might best be regarded as reflective concerns that should accompany reparations politics at every step.

I. Reparation and Litigation

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