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Watson Branch

Excerpted from: Watson Branch, Reparations for Slavery: a Dream Deferred, 3 San Diego International Law Journal 177-206, 195-206 (2002) (143 Footnotes)

In his remarks on the occasion of his nomination as Secretary of State in the cabinet of President-elect George W. Bush, General Colin Powell said that he was glad that the newspaper reports about the occasion would say that he would be the first African American to hold the position because it would, he hoped, "give inspiration to young African-Americans coming along . . . that no matter where you began in this society[,] with hard work and with dedication and with the opportunities that are presented by this society, there are no limitations on you." If this statement were true, there would be little need for reparations, but as Dr. Browne pointed out thirty years ago, "[b]lacks in America have no bootstraps to pull ourselves up by." After declaring that the "illusions of power, such as another black in the federal administration's cabinet, are insufficient," Dr. Browne went on to say, "[w]e start with so few economic resources that our tactics must be to utilize cleverly what strength we have . . . to extract some economic resources from those who do have them." And some of those who "do have them" are the churches and synagogues of America, the specific targets of the demands for reparations presented in The Black Manifesto by James Forman on Sunday, May 4, 1969, when he interrupted the service at the Riverside Church in New York City. That was the opening salvo in the modern battle to persuade white America to compensate African Americans for 350 years of suffering under slavery, segregation, and discrimination.

The Black Manifesto demanded $500 million from the churches and synagogues, prescribed the ways in which it should be spent, including a land bank and organizations that would deal with communications, welfare, labor, business, and education, and laid out a program for gaining support for the demands. The response of the church's preaching minister, Dr. Earnest Campbell, was measured and sympathetic in a radio address a week later. To the outcries of "shame" at Forman's behavior, Dr. Campbell said, "[t]he shame centers in the fact that within the population of this most prosperous nation there are people who feel, rightly or wrongly, that they have to use such tactics to draw attention to their grievances." He went on to define "reparations" as the "making of amends for wrong or injury done," and condemned the "demeaning and heinous mistreatment" of blacks at the hands of whites during and after slavery, declaring it "just and reasonable that amends be made by many institutions in society."

Reparations can also be defined in a more legal sense, as Elazar Barkan does when he says the term refers to "some form of material recompense for that which cannot be returned, such as human life, a flourishing culture and economy, and identity." For Barkan it is still a moral argument: although the past cannot be undone, "the effect of this historical injustice constitutes a continuing violation. Therefore, the descendants of slaves are themselves victims." More broadly, reparations, as Professor Matsuda so clearly explains, are not "equivalent to a standard legal judgment. It is the formal acknowledgement of historical wrong, the recognition of continuing injury, and the commitment to redress, looking always to victims for guidance." Within this context, the purpose of reparations may be seen as three-fold. In his article, "[t]he Economic Basis for Reparations to Black America," Dr. Browne summarizes the objectives: first, to punish white Americans for their ancestors' brutal enslavement of African Americans; second, to compensate the African American community for the unpaid labor of their slave ancestors; third, to provide African Americans with their fair share of the national wealth and income that would have been theirs had they had the same opportunities and advantages that white Americans experienced over the last 375 years.

Reparations, then, become the answer to the problem of race and racism in America, and the question is how best to implement them. A failure to redress the injuries caused by slavery and its aftermath is, as Professor Matsuda says, "an injury often more serious than the acts themselves, because it signifies the political non-personhood of victims." Reparations declare to the victims of racism that they exist as persons and that they are entitled to compensation for real deprivations: "This nation and its laws acknowledge you." The achievement of recognition is one of the most important benefits of reparations, harbingering the socioeconomic benefits that will accrue when a program of reparations is instituted. Recognition is linked, Charles Taylor says, with identity,

where this latter term designates something like a person's understanding of who they are, of their fundamental defining characteristics as a human being. The thesis is that our identity is partly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves. Nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being. This lack of true recognition and the resulting injury to identity have been the fate of African Americans as individuals and as a group, leaving them subjugated to the image of inferiority imposed upon them by the dominant white hegemony. The granting of reparation could work to overturn this debilitating situation and free blacks from the prison of misrecognition, first, by the acknowledgement of their identities as persons worthy of receiving restitution and, second, by the positive effects on the socioeconomic conditions of blacks from an executed program of reparations, raising them to a position of parity within the general community. Once reparations are paid, says Professor Westley,

[b]lacks will be able to function within American society on a footing of absolute equality. Their chance for public happiness, as opposed to private happiness, will be the same as that of any white citizen who currently takes this concept for granted because the public so utterly "belongs" to him, so utterly affirms his value, his humanity, his dignity and his presence.

What, then, ought to be the specific nature of a program of reparations for African Americans for the harms suffered under slavery, segregation, and discrimination? The best place to look for guidance, as Professor Matsuda suggests, is to the victims themselves, and the TransAfrica Forum's "Restatement of the Black Manifesto" is an excellent starting point. This updating of the 1969 Black Manifesto begins with a "Statement of Facts," opening with a list of ten points that underpin the need for reparations today. They fall into two groups: the first five focus on the failure of the U.S. government to acknowledge its role in the mistreatment of African Americans or to compensate them, either by statute or in the courts, for their original and continuing subordination; the second five assert the appropriateness of reparations by a government that has abrogated the rights of its minorities, citing as precedent recent state and federal payments of reparations to injured groups for provable injuries they have suffered. On this basis, the new Manifesto states its position: It is time for the government--not for private individuals--to create a forum in which it can pay the debt and heal the wounds caused by slavery, segregation, and discrimination in order to redress the continuing harm not only of uncompensated labor but also of the poverty and deprivations that have persisted from generation to generation. This Manifesto concludes with a call for Congressional hearings to establish the basis for reparations and to determine the amount.

A bill to achieve precisely such hearings is presently before the U.S. House of Representative. On January 3, 2001, Rep. John Conyers (D-Mich.) once again introduced a bill that he had been proposing for more than a decade. Appropriately numbered HR 40, it is called the "Commission to Study Reparation Proposals for African-Americans Act," and its intent is

To acknowledge the fundamental injustice, cruelty, brutality, and inhumanity of slavery in the United States and the 13 American colonies between 1619 and 1865 and to establish a commission to examine the institution of slavery, subsequently de jure and de facto racial and economic discrimination against African-Americans, and the impact of these forces on living African-Americans, to make recommendations to the Congress on appropriate remedies, and for other purposes. The commission would examine, first, the institution of slavery and the extent to which state and federal governments supported it constitutionally and statutorily; second, economic, social, and political discrimination against freed slaves and their descendants; and, third, the continuing negative effect of slavery and discrimination on living African-Americans and on U.S. society generally, all to the end of recommending appropriate remedies. The bill was referred to the House Committee on the Judiciary, where, as one might expect, it languishes. Even a decade after it was first introduced, the bill has been able to attract only 30 cosponsors in the 107th Congress out of the 435 members of the House.

Still, the future of reparations for blacks may not be totally bleak. Recent examples of reparations to groups who have suffered historical injury, such as Japanese Americans or Jewish survivors of the Holocaust, could set a precedent for African Americans. At the end of his discussion of compensation for Japanese Americans and European Jews as "victimized groups," Professor Westley quotes David Ben Gurion's response to the Wiedergutmachung that, for the first time in history of the oppressed European Jews, "a persecutor and despoiler has been obliged to return part of his spoils and has even undertaken to make collective reparations as partial compensation for the material losses." Professor Westley adds,

[t]he principle, then, was that when a State or government has through its official organs--its laws and customs--despoiled and victimized and murdered a group of its own inhabitants and citizens on the basis of group membership, that State or its successor in interest has an unquestionable moral obligation to compensate that group materially on the same basis. After a detailed comparison of reparations to internees of Japanese descent and African Americans, Professor Verdun concludes that granting reparations to Japanese Americans without granting them to African Americans "sends to the latter yet another message declaring that they are on the bottom of society's ladder, and this exclusion confirms their sense of futility in the quest for justice in the United States."

Perhaps even more important for the eventual success of reparations in the United States may be the existence of federal budget surpluses in the coming years after the threat of terrorism subsides. Because blacks usually absorb the brunt of economic hard times, the prospects for any social program that might serve them in particular are very problematic when such a program would have to compete with projects favored by the dominant white culture in the competition for scarce funds. Still, two major questions must be addressed. One, should the effort to achieve reparations be made through the courts or through the legislature? And two, should the awards be made to individual African Americans in the form of monetary grants, or should they be made to African Americans as a group in the form of support for the black community?

Many proponents of reparations believe that the courts should be the battlefield, but it is precisely in the area of litigation that the opponents to reparations, no matter what their motives, are able to marshal their strongest arguments. Professor Matsuda lists four standard doctrinal objections to reparations: 1) factual objections and excuses or justifications for illegal acts; 2) difficult identification of perpetrator and victim groups; 3) lack of sufficient connection between past wrong and present claim; 4) difficulty of calculation of damages. Derrick Bell, in his generally sympathetic review of Professor Bittker's The Case for Black Reparations, says,

[w]hether based on [42 U.S.C.] section 1983 or directly on constitutional amendments, reparations litigation, if attempted on a broad scale, faces an avalanche of procedural problems, including determining proper parties, fashioning an appropriate class action, and effecting meaningful discovery, all of which are likely to increase in complexity as the case proceeds. In an effort to answer the objections, Professor Matsuda develops a theory of liberal legalism that includes reparations. She argues for the expansion of the standard legal claim so that the plaintiffs would be members of the victim group and the defendants would be descendants of the perpetrators and current beneficiaries of past injustices. She seeks to overcome the traditional legal bars of time, proximate cause, and laches by linking them to the limiting perspective of the victims. And she finds sufficient precedent for the awarding of damages that cannot be determined with scientific precision.

Given the penchant of judges to stick to more traditional or conventional applications of the law, the prospects for successful reparations are slim. This is evident from the histories of two unsuccessful cases: Hohri v. United States and Cato v. United States. In Hohri, victims of the Japanese internment during WWII and descendants of some of the deceased victims bought a class action suit for compensation based on various theories of liability, including constitutional violations, tort, breach of contract and fiduciary duties. Despite the failure of the suit, Rhonda Magee sees the courts as the "most promising starting point" for successful reparations because the total exhaustion of legal options for reparations can bolster the victims' claims for legislative action. In Cato, the plaintiffs' complaint against the government "for damages due to the enslavement of African Americans and subsequent discrimination against them, for an acknowledgement of discrimination, and for an apology" was dismissed by the district court. The 9th Circuit affirmed, quoting Judge Armstrong:

Discrimination and bigotry of any type is [ sic] intolerable, and the enslavement of Africans by this Country is inexcusable. This Court, however, is unable to identify any legally cognizable basis upon which plaintiff's claims may proceed against the United States. While plaintiff may be justified in seeking redress for past and present injustices, it is not within the jurisdiction of this Court to grant the requested relief. The legislature, rather than the judiciary, is the appropriate forum for plaintiff's grievances.

Considering this predilection on the part of judges to defer to the legislature as the proper forum for the redress of grievances based on slavery, segregation, and discrimination, perhaps the proponents of reparations ought to concentrate their efforts on Congress. But even then, reparations measures would not escape the scrutiny of the courts, which would decide on their constitutionality. Professor Bittker made a strong argument for the constitutionality of reparations, an argument that has been updated by Professor Brooks in light of the current Supreme Court's decisions in the area of affirmative action. By applying the "non-subordinating principle" rather than a "colorblind principle," Professor Brooks can justify the constitutionality of laws that seek to correct the injustices of the continuing effects of slavery and discrimination through a benign race- consciousness. After tracing the history of Supreme Court opinions, from Bakke decided in1978, to Adarand decided in1995, that deal with constitutional challenges to racial preferences and that display a movement toward the strict scrutiny test for governmental actions based on race, Professor Brooks concludes that "Adarand would seem to sound the death knell for black reparations, unless they can be tendered as compensation for the government's racial discrimination against blacks."

But, asks Professor Brooks, will the blacks who benefit from reparations legislation be seen by the Supreme Court as the actual victims of governmental misconduct, and thus be deserving of compensation under tests the Court will most likely apply? From the myopic viewpoint of those who oppose black reparations, such as Stephan Thernstrom, the answer is definitely no: "Most Americans today are not the descendants of anyone who lived in the United States in the period in which slavery existed." Professor Matsuda tries to deal with this problem, as discussed above, by broadening the definition of the class of victims of slavery and its aftermath to include present day African Americans. Professor Brooks deals with this problem by proposing two bases of legal support for reparations for nonvictims. The first is constitutional, growing out of the Supreme Court's affirmative action cases, which allow present-day remedies for past discrimination. When the discrimination precedes by many years the enactment of the remedy, the beneficiary need not be the same person as the victim. The second is statutory, developing in a manner comparable to 706(g) of Title VII of the 1964 CivilRights Act, which gives the courts wide discretion in fashioning equitable relief upon a finding of unlawful discrimination. Taking this statute as a model, Professor Brooks says, "Congress could pass legislation designed to atone for past discrimination rather than to compensate actual victims." But in the end, he says, judicial resolution of legal problems surrounding black reparations "might well turn on public policy considerations, as is usually the case."

Also turning on public policy considerations is the question of the best method for distributing reparations. The purpose of reparations is to compensate African Americans so that they can assume the place in American society that they would have reached had it not been for their unjust treatment during the periods of slavery, segregation, and discrimination. Based on all the historical facts discussed above, there is no doubt that blacks are entitled to compensation. The question, then, is how to compensate them in a way that will best accomplish the public policy purpose of socioeconomic and political parity.

Dr. Browne suggests four possible methods for payment of reparations:

1. A per capita cash payment to each African American on a designated date, based on a pro rata share of the finally agreed on reparations debt.

2. Investment of the reparations payments in income-producing assets, with the income allocated annually on a per capita basis.

3. Use of the payment to fund massive government-sponsored programs to raise educational and skill levels, provide housing, and generally improve overall economic status.

4. A collective payment to the "community" to create conditions necessary for "takeoff" in the Rostovian sense.

Distributing individual reparations by presenting each African American a certain sum of money, as the first two of Dr. Browne's methods do, raises major problems beyond the mere question of exactly how much money should be given. For one thing, how would the recipients be chosen? Who would qualify as an "African American" ? Even if the reparations program avoided the whole question of privity by not requiring that a beneficiary be someone who had suffered injury or be the descendant of such a person and even if the awards were intended for blacks as a group, there would still be the problem of determining who was black. Professor Bittker raises this as a problem in his book, but in his review of it, Professor Bell finds the fears about false claims not borne out by experience: whites have shown little interest in declaring themselves to be black in order to benefit from affirmative action programs.

Dr. Browne's methods 3 and 4 offer a better solution. Making cash grants to individuals would temporarily improve their standard of living, but it would do little to solve the large, long-term problems that plague many blacks today. However, large transfers of money to the black communities would enable them to make major improvements in the areas of education, housing, employment, business, finance, police and fire protection, health maintenance, and general infrastructure. Over a period of years, such improvements would make a real and long-lasting change in the lives of African Americans, moving them toward a position of social equality.

The kinds of programs that are needed are self-evident to anyone who takes the time to examine honestly the lives of African Americans in this country, and scholars, many of whom are cited throughout this paper, have made promising and practical proposals for what can be done if money were to become available. But no matter what the program, it must be African Americans themselves who design and implement it. House Judiciary Committee hearings on Congressman Conyers' HR 40, if the Republican leadership ever allows them, will provide African Americans with the opportunity to testify about the history and present reality of racism in this country and will create a factual record as a basis for governmental programs to help black communities. The hearings will bring to the forefront those organizations and individuals who can be instrumental in implementing those programs. The voices of African Americans must be heard and attended to. One important voice is that of Randall Robinson:

There is much new fessing-up that white society must be induced to do here for the common good. First, it must own up to slavery and acknowledge its debt to slavery's contemporary victims. It must, at long last, pay that debt in massive restitutions made to America's only involuntary members. . . . It must open wide a scholarly concourse to the African ancients to which its highly evolved culture owes much credit and gives none. It must rearrange the furniture of its national myths, monuments, lores, symbols, iconography, legends, and arts to reflect the contributions and sensibilities of all Americans. It must set afoot new values. It must purify memory. It must recast its lying face.

It is a matter of vision. Whites must first see blacks, see them as fellow human beings and not treat them as if they were, in Ralph Ellison's term, "invisible." Then, whites must see blacks as equals. For Professor Alienikoff, this revisioning has two parts: "First, whites must see blacks in positions of power, authority, and responsibility . . . Second, whites must begin to recognize and credit self-definition by subordinated groups." It is the purpose of reparations to allow blacks to achieve these positions. It will take time not only to institute changes but also for the changes to have an effect on the perceptions that whites have of blacks and that blacks have of themselves. African-American children are the ones who will most benefit from reparations, but it will probably take two generations for the black community to benefit as the children move up through improved schools where they will receive a first-class education, live in adequate housing in decent neighborhoods, eat healthful foods, get excellent medical care, and be protected by highly professional and sympathetic fire and police forces. When these children grow and mature and enter the wider world of the American society, they will do so not as deprived or injured or oppressed or subordinated adults but as equals to anyone. The old stereotypes will be destroyed by the very numbers and abilities and accomplishments of these new generations of African Americans. Those seen today by the white society as being "exceptions"--the African Americans who have gained positions of honor and success in the white American culture--will become the "rule." Racial equality will be a massive and undeniable reality.

As Gwendolyn Brooks wrote: The White Troops Had Their Orders But the Negroes Looked Like Men

They had supposed their formula was fixed.

They had obeyed instructions to devise

A type of cold, a type of hooded gaze.

But when the Negroes came they were perplexed.

These Negroes looked like men. Besides, it taxed

Time and the temper to remember those

Congenital inequities that cause

Disfavor of the darkness. Such as boxed

Their feelings properly, complete to tags --

A box for dark men and a box for Other --

Would often find the contents had been scrambled.

Or even switched. Who really gave two figs?

Neither the earth nor heaven ever trembled.

And there was nothing startling in the weather