Responding to the discussions on Reparations are replete while the appalling reality on the ground is not in doubt, to be of assistance and subject to the wisdom of people who have been working on this far longer than me I put on my Business School hat and put this practical and constitutional proposal together. My bottom line is that it is not as hard as people make it out to be. It is not perfect no doubt but the best is the enemy of the good.

I. What Law? International Law (higher law for those originalists)

One might start from the Draft Articles on Responsibility of States for Internationally Wrongful Acts. While these are state to state rules, they can be analogized from human rights law given that humans have a form of international legal personality and also as a state in its sovereignty is free to invoke these rules against itself in how it has treated and treats its population. Some relevant sections:

• Article 1. Responsibility of a State for its internationally wrongful acts: Every internationally wrongful act of a State entails the international responsibility of that State
• Article 3. Characterization of an act of a State as internationally wrongful The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law
• Article 12. Existence of a breach of an international obligation There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character
• Article 28.  Legal consequences of an internationally wrongful act The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part
• Article 31.  Reparation
  • The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
  • Injury includes any damage,  whether material or moral, caused by the internationally wrongful act of a State.
• Article 32.  Irrelevance of internal law The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this Part.
• Article 34.  Forms of reparation Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.
• Article 40.  Application of this chapter
  • This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law.
  • A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfill the obligation.
  • Period

The reparations issue actually goes back to 1452-1455 and involved more than the United States and 1619. It starts with the Papal Bulls to Spain and Portugal in the mid-1400’s blessing and calling for the perpetual enslavement of Africans among other depredations. The Papal Bull said: “…Thence also many Guineamen and other negroes, taken by force, and some by barter of unprohibited articles, or by other lawful contract of purchase, have been sent to the said kingdoms…and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit…”

II. Transatlantic Slave Trade

Each of those Transatlantic Slave Trade ships flew the flag of some state and so one can identify the state whose jurisdiction was over the ship and the destinee state and their state responsibility. The onward transshipment of enslaved people is not captured I do not think, but this is a start of evidence to identify the state actors.

For the United States, one can imagine three distinct periods of slavery and badges of slavery – up to 1865, 1865 to 1965, 1965 to present.

Persons included in the pool of persons would be the obvious descendants of Africans enslaved in the US, but would also include some less obvious such as:

• descendants of escaped enslaved people who got to Canada (Afro-Canadians) or Mexico (Afro-Mexicans) or other places
• people of African Descent who emigrated to the United States post-slavery for the badges of slavery part
• people of African Descent who left the United States post-slavery (GI’s who stayed in theater, others who left the United States such as Richard Wright)
• people who died in the Transatlantic Slave Trade (who did not survive the Middle Passage)
• enslaved persons or persons who died post-slavery who did not have descendants are another couple of groups (those who died in slavery or post-slavery with no progeny) whose reparation should be included in the reparation package as maybe an overlay pool that might be used for apology and satisfaction.

Here is a suggestion of a formulaic key – drawn from examples such as the UN Compensation Committee.  The stronger the evidence for the longest period the higher the reparation (Level IA.  The weaker the evidence for the shortest period, the smaller the reparation (Level 3C).

For the economics, one could seek the assistance of people like Thomas Piketty (Capital in the 21^st Century) who do long longitudinal economic analyses and Joseph Stigitz who critiques Piketty.

 III. The process

Federal Legislation could create the equivalent of the Freedman’s Bureau where applications for reparations would be submitted. Plugin the persons in the various 9 boxes and the overlay to see the pools in which they swim. The lower the evidence the lower the payout. The longer the period of oppression the higher the payout within each category.

Said commission would make the decisions on allocations with a right of appeal to federal court.

One can see such a Reparations Commission can be conceived of and could be done. I defer to those who have done much more work on this than I have done of course.

One issue would be with the form of the reparation: cash or some other kind of assistance with housing, education, whatever.

I note the rule from international law that I described, to wit:

Article 34. Forms of reparation Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.

So singly or in combination, the appropriate reparation could be determined.

The purpose here is not to get into all the weeds but to propose a simple and elegant structure of how this could be done. As I am retiring on January 31, 2021 and so am a pre-has-been,  I hereby for eternity grant a paid-up nonexclusive license for anyone (especially a non-tenured junior professor) to work through the strengths and weaknesses of this approach to reparations which focuses on state responsibility rather than proving individual cases against individual people in private litigation.

Yes, there are details in the weeds and the devil always resides there, and at the margins between the three groups there will be debates etc, but the overall structure of the proposal has some valence for cutting through the rhetoric and finding a practical way of identifying the possible claimants, identifying the possible injury, and identifying the possible remedy.

IV. History and Interest Convergence

It would seem, just like in family law, that the rule to be applied is the totality of the circumstances approach.  And, in doing that, we must avoid the kind of second-order games of structuring the rules of such a commission so that the evidence to be brought has to be a certain way and – surprise! – only a few can provide the appropriate evidence. We have seen this before with the Dawes Commission lists of who was a Native-American that systematically excluded blacks with Native-American blood. I am sure there are myriad commissions infected with this kind of sickness.

It has been said that one must acknowledge that the prospects of a white majority voluntarily transferring to marginalized people of color wealth, privilege, and/or power, in the form of reparations or anything else, are quite dim. In this view, the futility of race-based reparations could be seen as an inevitable corollary to Derrick Bell‘s familiar “interest convergence dilemma.” This is at the heart of what some see as an enormous (though some feel rarely acknowledged) tension between critical race theory and the argument for race-based reparations.

The false notion in this view is that the white majority is doing anything. This kind of personalization of the American state with whiteness is of course the problem with this thought process. And we know the American state in the Executive, Legislative, and Judicial branches at the federal and state level have on occasion made counter-majoritarian decisions. In fact, one of the hallmarks of democratic processes as was repeatedly emphasized during the period of the fall of the Soviet Union in the Eastern European states was the need to protect the rights of minorities in those states.

The point I have made is that it is the American state that is doing the reparations for its internationally wrongful acts, not some monolithic white majority.

As to the so-called interest-convergence dilemma and a so-called tension between that and an argument for reparations to African-Americans, I have taken issue with Bell’s view in my own writings for it makes my human rights dependent on the vagaries of some interest-convergence with those who have shown a propensity in various times and places to not recognize my human rights.

One starts from the first principle of one’s human rights and then looks to the structures that have to be changed.

Secondly, I think that this “interest-convergence never happening because white people will never do it” view does a disservice to white people. White people may have privilege but they certainly are not monolithic in their consciousness. I fully expect a significant number of white people to see the merits of reparations. And, of course, white people are not the only persons in this polity and I can certainly see a multiracial, multiethnic, and multicultural coalition that could back such a possibility. My unscientific estimate has been that 60 years ago 90 percent of white people in America despised black people. But, with an enormous amount of effort by all kinds of people, that number has declined. The best measure I heard was that the number had declined to 75 percent of white people despising black people by the time of Harold Washington’s election in Chicago – said to be the most segregated American city of its time. This was an analysis that UN Ambassador Andrew Young did at the time of that first election in 1983. And subsequent to that we have seen Devall Patrick elected Governor of Massachusetts to go from the local to the state level, Tim Scott and others as senators from both the north and south, and of course Barack Obama as President. As Iowans – a very white electorate I should say – chanted when Obama won the Iowa primary “race doesn’t matter.” One might posit that number as somewhere around 40 percent of white people today with it seems a difference between white men (the most privileged white people) and white women (the less privileged white people).

That still means that 2 out of every 5 white people I meet may be carrying animus towards me. But, that is their trip not mine toward them.

History does matter and the schizoid view of on the one hand adulating the Founders and Framers and on the other hand not coming to a reckoning with their slave-ownership has increasingly become untenable. I saw, the morning I wrote this, Lynne Cheney, wife of Dick Cheney no less, talking about this in presenting her new book Lynne V. Cheney: The Virginia Dynasty: Four Presidents and the Creation of the American Nation about Washington, Jefferson, Madison and James Monroe. Maybe the originalist’ academy needs to catch up.

One cannot just talk about their slavery as American’s original sin and try to leave it back there but then try to take us back there to have us wear blinders as to where we think.

Similarly, for the living constitutionalists, one cannot say this is the best way and deal with the fact that as recently as 60 years ago (so in MY lifetime) by my estimate, 90 percent of white Americans despised African-Americans and how all that has permeated every aspect of what the state has done in this country.

And let us not forget that persons who do not share that oppressive view have fought against it in the antebellum period and since (at all times asserting human rights).

V. Hypothetical Situations

Everyone can come up with a series of hypothetical situations which once again confuse in my opinion the level of wealth or accomplishment of someone with whether they should receive reparations from the state. I would say that with the range of remedies I describe above and under a totality of circumstances vision of the evidence to be brought, one person’s remedy might be a formal apology and a payment of nominal damages, and another person’s remedy might be substantial damages. Yes, there is a need to treat similar situations similarly. I get it. But what I am saying is that none of this is insurmountable if the commission I described is tasked with both applying law and equity.

Everyone would have former President Barack Obama on their mind as a principal hypothetical. I hesitate to jump into the Barack Obama hypo because in a sense I get into playing the hypothetical game. But, for the sake of fun, let us play. Barack Obama was born in 1961 so he would have proof that he would fall in the second category of 1865-1965 for a little bit. Post-1965 to the present he would have to bring evidence on behalf of himself and his family about the extent of his injury under the totality of circumstances test. And even in the high status position he was and is in, we watched the injury relentlessly over his 8-year Presidency – but there may be other things. He has to marshall the evidence of his injury and entitlement. The greater the evidence of injury the higher the remedy. Michelle Obama presents a different case because I believe her family goes back much farther in US history. Again the totality of circumstances analysis.

And as to evidence, I think also we may underestimate the agency of African-Americans. Similar to the Ancestry.com searches we see, there are family Bibles, genealogical searches like have been done in my family, family reunions with documentation of the history of families, documentation from plantations and on and on that a person seeking such reparation could bring forward as part of their presentation in support of a remedy. I have a copy of the bill of sale from 1800 of my ancestor Barbary for example.

Some might not spend the time and energy to seek such relief. That is fine. Some may not have more than their birth certificate saying that they were born at x date and thus fall into two of the categories. But they may have oral testimony of what happened in their life (a la Truth and Reconciliation Commission) that can be given under oath to assist such a commission in its evaluation.

VI. Public Opinion and Funding

As to polls that may be against this idea, I go back again to the point I noted above that attitudes change. The attitude of the black community changed to Barack Obama from before he won Iowa to when he won the Iowa primary seeing white voters showing a willingness to vote for an African-American man. And we are seeing now with Kamala Harris as a Vice-President-elect that an African-Indian-American can also be elected.

Paraphrasing what Sojourner Truth said to Frederick Douglass in his moment of despair in his speech at Faneuil Hall in Boston speech, if God is alive, then there is always hope.

And for those who say “how will this be funded?” – that is for the bean counters (accountants) and one-armed economists (on the one hand, on the other hand)  to come up with the numbers that are fair first and then for that debate on funding to be done. I am sure they are quite capable of thinking this through with their supercomputers that are able to crunch vast amounts of data in the blink of an eye. I suspect that there are some who have already taken a stab at this. The one’s I am aware of that I would think might be helpful are Thomas Piketty because of his longitudinal approach over centuries and Joseph Stiglitz who is a critic of Piketty. Somewhere in there they might be able to come to a consensus.

Again, where there is a will there is a way.

Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law.

Suggested citation: Benjamin G. Davis, A Practical and Constitutional Proposal for Reparations for African-Americans, JURIST – Academic Commentary, November 9, 2020, https://www.jurist.org/commentary/2020/11/benjamin-davis-reparations/.

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.