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SLAVERY REPARATIONS:
A MISGUIDED MOVEMENT

Professor Peter H. Schuck
Yale Law School
JURIST Guest Columnist

Let us stipulate -- because it is manifestly true -- that American slavery was a horrendous crime and a moral abomination. Let us further stipulate that this crime had countless victims and that their descendants still experience adverse effects today, seven generations later. Finally, stipulate that our society subscribes to an ideal of corrective justice that recognizes a legal duty compelling wrongdoers to remedy wrongfully-caused losses and to surrender wrongfully-obtained gains. Does this require the payment of reparations by the federal government to. . .somebody? Does it justify such reparations?

My answer to both questions is no -- and not just because of uncertainty about who the 都omebody would be, although as we shall see this poses a serious practical problem. My objections to reparations fall into three general categories: instrumentalist, consequentialist, and horizontal equity.

Instrumentalist objections

By instrumentalist objections, I mean problems of a practical or administrative nature that would be created by any serious effort to move from the status quo to an effective and just reparations regime. By 都erious effort, I mean one that takes full account of the practical requirements of implementation. I take up the meaning of 兎ffective and just reparations regime in the discussion of the consequentialist and horizontal equity objections.

It may seem churlish to begin with the practical or technical obstacles to engineering a solution. These problems will surely strike some reparations advocates as too small-bore and nit-picking to mention in the same breath with the moral project of reparations. But mention them we must, especially because of the project痴 moral purpose. As the saying goes, if one wills an end, then one also wills the necessary means to that end. Ought implies can. Means, moreover, are not merely instrumental to desired ends; often, they also have normative dimensions of their own that must be considered. Finally, when policies that are attractive in principle fail at the level of actual implementation, the policies themselves are discredited.

Here are just a few of the numerous implementation problems that a reparations law would need to solve.

  • First, how would it define the beneficiary class? Would it include all blacks in the U.S. or only those descended from slaves? If the former, what about immigrant blacks and how would 澱lack be defined in an increasingly multi-racial society? If the latter, what about descendants of free blacks?
  • Second, how would the beneficiaries prove their entitlement? Absent a clear definition of black (who would judge?) or reliable documentary evidence of descent (surely lacking in most cases), what presumptions would be accepted and how could they be rebutted?
  • Third, would beneficiaries have to show that American slavery caused their current condition? What if they would otherwise have been killed or enslaved by their African captors, or sold to non-American masters?
  • Fourth, should all taxpayers bear the cost of reparations, or only those descended from slaveowners or from those who lived in the slave states? The list of such technocratic questions - none of them fanciful - could be extended endlessly.
Consequentialist objections

The actual effects of a reparations program, of course, will depend partly on the answers to these and other instrumental questions and partly on developments about which we can only speculate. To inform this speculation, however, we can draw on some historical experience with reparations or quasi-reparations programs to suggest what we might expect of this one, even conceding as I readily do that each program is different in any number of ways. Consider four such programs: post-war reparations; the September 11 compensation fund; affirmative action; and the payments to Japanese internees. (Again, space permit only the briefest characterizations). The treaties ending World War I required the Central Powers, especially Germany, to pay war reparations to the victorious Allies. In fact, the payments were grudging, delayed, incomplete, and raised new conflicts. For this reason, the payments brought little satisfaction to the recipients and the bitterness it engendered among Germans was skillfully exploited by Hitler and, according to many historians, contributed to his political support. The post-World War II reparations that Germany paid to Israel, although criticized by many as insulting and inadequate 澱lood money, were far more successful and helped to launch the new state.

The September 11 compensation fund is still in its early stages, but certain patterns are already evident. Although Congress assumed that this catastrophe was as sui generis as any event could be, the precedent it set has already produced an expansion of the program to include the victims of other terrorist-related disasters such as Oklahoma City and the Khobar Towers in Saudi Arabia. And while the relatively small share of the eligible families who have received their awards so far surely value them, many recipients complain that the compensation痴 failure to remedy their loss adequately has inflicted an additional dignitary harm and reopened painful wounds. Far from assuaging their suffering, it seems, monetization sometimes aggravates it -- no matter what compensation scheme is chosen.

Even though affirmative action does not entail direct payments for past discrimination, most supporters view it as a compensatory program; the greater economic opportunities it affords its beneficiaries do constitute a kind of reparations and are intended as such. After more than 30 years of affirmative action -- and my work on a comprehensive article on this subject in 20 Yale Law & Policy Review 1 (2002) -- several effects seem clear. (Many other effects, both good and bad, are more debatable).

First, the number of individuals who are now eligible for preferences dwarfs the group that they originally and most compellingly targeted -- the descendants of slaves and the victims of Jim Crow. Today, the eligible groups include other categories (women, Hispanics, Asians, and sometimes the disabled) as well as millions of immigrants of color whose ancestors did not experience slavery here.

Second, law痴 inherently technocratic modalities have tended to (literally) de-moralize affirmative action programs. By implementing preferences through a system of contestable definitions, measurements, sanctions, regulations, and litigation, the law has politicized, bureaucratized, and trivialized what was once a moral project. As I discuss below, this moral imperative can be served better in other ways.

Third, affirmative action痴 unpopularity, even among many members of the beneficiary groups, has created new barriers to inter-racial reconciliation and heightened the salience and divisiveness of race -- precisely the opposite of the advocates originally goals.

The most attractive model for black reparations is the program for the Japanese interned during World War II. The program is very recent, of course, and I know of no analysis of its effects but let us assume that they have been altogether positive - that the recipients are satisfied by the federal government痴 contrition and compensation, while the program is causing other Americans to reflect on the lessons of that dark chapter of our history. Perhaps this putative success augurs well for a black reparations program but I doubt it, for reasons already discussed. The surviving Japanese internees are a relatively small, easily identifiable group of victims who had been harmed in specific ways by a discrete event limited in time and space. None of the instrumentalist objections mentioned above applies to this group; for example, the beneficiaries are the surviving victims themselves, not innumerable, far-flung, anonymous descendants up to seven generations removed from us.

The German compensation schemes for Holocaust victims and slave laborers are not a close model for black reparations either, for many of the same reasons that distinguish the Japanese internment program. These German schemes, moreover, resulted from the settlement of strong legal claims based on unjust enrichment of specific banks, insurers, employers, and other companies that inflicted calculable losses on specific individuals and families.

Horizontal equity

Justice and fairness demand that similar cases be treated alike. We all know that every case is different in some respect from every other case, that the criteria of factual relevance and similarity are neither self-evident nor self-defining, and that classifying cases into categories for purposes of comparison is often a matter of judgment. We also know that the victims of grave injustice -- slavery, the Holocaust, other genocides, enforced subordination -- often regard their suffering as distinctive, if not unique; they tend to resist the notion that the victims of other grave injustices suffered more or in ways more deserving of remedy. To cite an extreme and maudlin but perhaps revealing example, Daniel Jonah Goldhagen, in his book Hitler痴 Willing Executioners, argues that even slaves were treated as less 都ocially dead (in Orlando Patterson痴 phrase) than Jews were in Germany during the Nazi period.

The competition for greatest victimhood is almost inevitable both for political reasons and for a legal one; standard equal protection doctrine invites such comparisons in order to determine the appropriate standard of review. This competition is not an edifying sight -- and not just because we lack a common metric for measuring and comparing injustices of this kind. It often descends into an ugly struggle for public resources, recognition, recrimination, and moral status among people who have already suffered enough and who should be the last to view injustice as a zero-sum game. Is slavery the greatest injustice in American history? Probably so, but I would not expect Native-Americans whose ancestors were systematically exterminated by the U.S. Army to readily cede the point. Were the indentured servants of the colonial period or the Chinese coolies of the nineteenth century more harshly treated or less deserving of reparations than the Japanese internees? What about the internees Japanese ancestors who were not permitted to own farmland, marry whites, or enter professions? What about the Irish immigrants who were forced by hateful discrimination to live in conditions arguably as degraded as slave cabins? Should we view their whiteness as an emblem of privilege sufficient to redeem their long suffering without further recompense?

I do not know the answers to these questions -- or even how to think about answering them. There is much to be said (as equal protection doctrine allows) for taking one step at a time toward a more just society. My point, then, is not that giving reparations to the descendants of black slaves would require, legally or otherwise, that they be given to the descendants of liquidated Native-Americans or near-enslaved coolies, much less that the former should not be first in line. Rather, it is that the politics and psychology of the competition for victimhood will make it difficult to stop there, and that the very effort to justify this stopping point will arouse new bitterness and magnify existing feelings of injustice.

Conclusion

The movement for black reparations, however well-intended, is misguided. Indeed, it is perverse in its propensity to discredit the very ideal of corrective justice that it invokes, to aggravate bitterness rather than assuage it, and to make reconciliation more difficult. Our obligation now is to engage with and learn from the past, and then to move forward by turning the page. As we turn it, we must not forget that we are leaving behind an endless catalog of crimes, tears, and scars of the lash, of prejudice, and of poverty. We must leave this human misery and injustice behind, but not out of mind or conscience. We already have a long agenda to challenge our moral faculties and remedial imaginations as we assess our responsibilities to one another both now and in the future.


Peter H. Schuck is the Simeon E. Baldwin Professor of Law at Yale, and author of the forthcoming Diversity in America: Keeping Government at a Safe Distance (Harvard/Belknap, April 2003) and The Limits of Law: Essays on Democratic Governance (Westview, 2000).

December 9, 2002

GUEST COLUMNIST

JURIST Guest Columnist Peter H. Schuck is the Simeon E. Baldwin Professor of Law at Yale, where he teaches Torts; administrative law; immigration and refugee law; remedies for governmental wrongs; groups, diversity and the law and other subjects. He is the author of the forthcoming Diversity in America: Keeping Government at a Safe Distance (Harvard/Belknap, April 2003) and The Limits of Law: Essays on Democratic Governance (Westview, 2000).

Professor Schuck holds MA and JD degrees from Harvard Law School and an LLM from New York University. He served as Deputy Dean of Yale Law School from 1993-94.