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Lee A. Harris

Excerpted from: Lee A. Harris, Political Autonomy as a Form of Reparations to African-Americans , 29 Southern University Law Review 25, 28-29, 50-56 (Fall 2001) (169 footnotes omitted)

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To this end, a true reparative remedy to African-Americans has three elements. First, it attempts to eliminate racism against African-Americans. The point here is intuitive. Since the past injustice, or harm, done to African- Americans is based on race--the imposition of slavery, segregation, and seemingly permanent underclass status--the remedy must target racism against African-Americans.

Second, a true reparative remedy should be backward looking. Reparations not only recognize an unjust distribution of resources and redistribute resources accordingly, but also assign blame to the perpetrator of the wrong. Policies, like the Earned Income Tax Credit, that are designed to improve the condition of poor people as a matter of course, including poor African-Americans, are not necessarily reparative. Put differently, a social policy program that aids the conditions of African-Americans vis-a-vis whites, but does not acknowledge the basis for such programs (racism), is remedial, and not reparative. Such policies are distributive, not corrective.

Third, a reparative remedy to African-Americans need be group-based. The "real" victims of slavery are long dead; therefore, it is impossible to recompense them on an individual basis for injustice during slavery. For the same reasons, it is equally impractical to try to distribute individual reparations to their descendants based on their ability to "prove" injury, as in traditional tort claims. Group-based reparations are the only sound mechanism for reparations. As such, reparations must be extended to African Americans as members of a group.

. . .

In addition to arguing that affirmative action is an inadequate reparative remedy, I have also made the case that cash payments, if pursued, would similarly be wrong-headed. I have discussed three fatal problems (1) the problem of design; (2) the problem of public opinion; and (3) the problem of the courts. As I have shown, these same problems have been present throughout the history of reparations for African-Americans. At the same time, I have suggested that statehood for African-Americans is a third alternative. That said, it is only fair to test political autonomy against these problems in order to ascertain its usefulness to supporters of reparations for African- Americans.

A. Design

The first problem seems to be completely resolved by a resort to political autonomy. To summarize, both monetary transfersand nonmonetary transfers seem to have had little effect in terms of eradicating institutional racism, or improving the condition of the majority of African-Americans.

To a certain extent, the problem of effectiveness is made nearly inapplicable by resorting to political autonomy. Today much of the racism against African-Americans is embedded in the structure of U.S. institutions. Affirmative action and monetary transfer can do little to ameliorate this state of affairs. Unlike anything tried before, political autonomy calls for a separate nation and, of course, completely new institutions. New institutions would not be handicapped by a legacy of racism, like that present in U.S. institutions. These new institutions would be controlled by African-Americans, and, therefore, could hardly operate to entrench white wealth. Some may argue that political autonomy may create all new institutions plagued by the same kind of racist ideologies. Along these lines, one author writes:

Those who argue that the blacks in America are an oppressed nation (and therefore favor the establishment of a separate black state) miss the point that a class based, private property capitalism system is the material base of oppression--of well as race--and that a separate black state is likely to contain the same base of oppression.

Admittedly, African-American controllers of all-new institutions may distribute social services and contracts as unevenly among themselves as the mal-distribution observed in the United States. There is no reason to believe that an African-American state would not manifest discriminatory practices very similar to those found in the United States. The few African-Americans who made it to Liberia, for instance, dominate that country in virtually every measurable sphere and completely out of proportion to their size. And there is no reason to believe that in a new nation for African-Americans, a similar situation would emerge.

Certainly, in large part, this contention would depend on what types of institutions were set up in an African-American state. If American institutions were transplanted to the new state lockstep, than perhaps these fears have some basis. Even then, however, an African-American state with African-American institutions would not have the kind of institutional racism that stems from a history of slavery as in the United States. By definition, an African-American state would have all new institutions that do not include a history of slavery, or permanent underclass status. The citizenry would be able to start with clean slates, and create a system that afforded opportunities equally.

B. Public Opinion

Secondly, although in certain ways political autonomy may exacerbate race- relations, in other ways it seems likely to resolve some of the problems associated with other forms of reparations. In a nutshell, the problem of public opinion has been that: first, the public loathes preferences based on race; and, second, race-based preferences stigmatize African-Americans.

Indeed, the public has been increasingly in favor of race-neutral policies and political autonomy seems, at first blush, to cut exactly the other way. Still, affirmative action has dragged on for decades, has not improved thecondition for the masses of African-Americans, and there does not appear to be an end to it in sight. Part of the American belief system is a belief in finality. Thus, to the extent that there is a perception among white Americans that affirmative action has entered the land of virtual perpetuity, this certainly causes some resentment. Political autonomy, by contrast, promises a 'once-and-for-all' solution. Moreover, political autonomy would in all likelihood bring to an end programs like affirmative action, set asides, and quotas that many Americans criticize.

Furthermore, other forms of reparations may actually hurt African-Americans by engendering a victim-status and inducing a backlash from whites. Much of the public opinion problems results from the perception among whites that reparative remedies are reverse discrimination; i.e., that these type of remedies reward African-Americans (and, in most cases, other minorities) at the expense of whites who feel they have played no role in oppressing African- Americans. In contrast political autonomy does not suggest that whites should compete against African-Americans who might have an advantage based on race. On the contrary, political autonomy suggests separate nations: it suggests, in other words, that whites should compete against whites; and African-Americans should compete against other African-Americans.

Finally, political autonomy would significantly alter the victim status of African-Americans that other policies perpetuate. As I have shown, other typesof remedies, notably affirmative action, may cause African-Americans to be seen as victims. In contrast, necessary byproducts of political autonomy are Black Nationalism and black autarky. Black Nationalism will go a long way in countering some negative images of African Americans.

C. The Legal Arena

In significant part, the legal problems, which other remedies have faced, stem from the fact that there are no tight legal precedents for the courts to follow with regard to the other remedies. In contrast, in the case of political autonomy, there is at least one precedent: the creation of Israel.

Following World War II, the Jewish community began pushing for a nation of their own. This drive in many ways resembles the backdrop for a potential African-American nationalist movement. For one thing, the discrimination the Jews suffered at the hands of Hitler parallels in significant respect to the discrimination African-Americans have faced throughout the history of the United States. A Crisis editorial, comparing the discrimination faced by the Jews before the War, declares the similarity between Jews in Central Europe and African-Americans in the United States.

The Jews were disfranchised; so were Negroes in the South. Both were discriminated against in education and employment. Jews were either excluded from beaches, playgrounds and parks or were restricted to recreationalfacilities specifically designed for them. Jim Crowism humiliated Negroes in a similar fashion. Propaganda of the vilest variety calculated to incite hatred for Jews characterized the German educational system from kindergarten to university. In white America the school system buttressed society's pejorative image of the Negro. Lastly, both Jews and Negroes were treated with great cruelty.

African-Americans did not miss the irony in the treatment of Jews in Europe at the hands of Hitler, and their own persecution at home. In fact, the plight of African-Americans has been aptly referred to as "American Nazism." At least one impetus to the Jewish momentum to create an autonomous separate state was the treatment of Jewish persons during the war. Jewish immigrants fleeing from Hitler were refused refuge by many Western powers, and that refusal feeds a latent sense of Jewish nationalism.

The African-American community, likewise, has suffered at least as much because of discrimination. African-Americans have been oppressed by centuries of slavery and endured seemingly permanent secondclass status. Moreover, the Jewish community felt that Western powers owed them something for loyalty, their service, and their suffering at the hands of Hitler during the war. The commitment to reparations throughout history, despite countless failure, may be construed as testimony of a similar sentiment among African- Americans.

Thirdly, the Jewish community has exemplified a culture synonymous with nationalism. Some might argue that, in contrast to the Jewish community, there is no such thing as Black Nationalism as an ideology to begin with, and, therefore, discussions of political autonomy are ill conceived. However, in much the same way as there is a Jewish culture, there is a distinct African-American culture. Certainly, the African-American culture is on display in music, literature, language, and many other mediums. Historically black colleges and universities have become an important representative feature of the black culture.

Finally, the Jewish community was able to stage a major lobbying effort in the United States, which had something to do with their success before the German courts and in the legislature. While it is true that the African-American lobbying effort has not been nearly as effective throughout U.S. history as the effort staged by members of the Jewish community right after the war, there is plenty of potential. African-Americans, after all, represent a sizeable minority within the United States, have a relatively resourceful middle class, and are represented noticeably in the legislatures and on the courts.

. . .

Reparations could have a moral impact on the African-Americancommunity and the U.S. community as a whole. In the case of Germany, for instance, the reparations programs "transformed Germany's social and geopolitical landscape, providing some measure of closure for a most shameful period of history." On reparations to Japanese Americans, one author has it, "redress cure(s) the soul." The same author continues, redress demonstrates "that America does the right thing, (and) that the Constitution works." For many Americans, and despite its obvious shortcomings, it is important to believe that our constitution is infallible, protects its citizens equally, and stands for justice. Reparations may improve the condition of African-Americans in real terms. As discussed above, in comparison to whites, African-Americans are underrepresented in terms of education, income, and good housing; and, at the same time, African-Americans are over-represented in U.S. prisons, the number of AIDS cases, and murder rates. Reparations might do something to close the gap.

Yet, despite the precedents set by other groups in receiving compensation for injustices, reparations for African-Americans has not be given serious deliberation. One of the problems is that the supporters of reparations have centered their arguments on affirmative action, group entitlements, or other race-based preferences, exclusively. As I have attempted to demonstrate this type of myopia has failed in the past and is unlikely tolead to any significant coups in the future.

The public has been increasingly resistant to race-based preferences; other cases involving other groups are too dissimilar to create precedential value for African-Americans; and other forms of reparations are not up to the task of improving, in real terms, the condition of the majority of African- Americans. Therefore, supporters of reparations to African-Americans should look to alternative forms of reparations, including political autonomy. As a start the U.S. government might explore ways to gauge African-American sentiment on the topic. A referendum, for example, could give African-Americans an opportunity to express their opinion on future debate. In the end, never let it be said that the author here contemplates that a majority of African- Americans--or even a significant proportion of African-Americans--would express support for political autonomy as a form of reparations even if given the chance. But, more importantly, never let it be said that the momentum for reparations died because of unfeasibility, futility, or lack of creativity on the part of this author.

. The author is a law student at Yale Law School