Taking Reparations Seriously
JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law in San Diego says that although reparations for African-American slavery remain an elusive goal due largely to misconceptions about what they might entail, meaningful reparations could in practice come in different forms in different contexts...
The reparations movement is grounded in the civil rights movement and the social justice movements of the 1960s – 1980s.
- Congressman John Conyers, keynote address, March 18, 2006
One hundred and forty years after the end of legalized slavery and 40 years after the passage of civil rights legislation, the legacy of slavery persists. In employment, education, healthcare, and criminal justice, African-Americans suffer from institutionalized racism. The movement to secure reparations for slavery has gained new traction with recent successes of Holocaust litigants. But it remains an elusive goal, due, in large part, to common misconceptions about what reparations would really mean.
Last month, Congressman John Conyers and scholars from around the country participated in an historic gathering to address the myriad issues arising from the debate over reparations. Held at Thomas Jefferson School of Law, the two-day conference focused on slavery and reparations as well as other instances of mass injustice in relation to the themes of justice, causation, group responsibility, moral culpability, racism and forgiveness.
Thomas Jefferson School of Law professor Kaimipono Wenger described reparations as "an acknowledgement of the displacement of the rule of law under slavery." He noted that Blacks were denied civil and political rights even after slavery ended. "Not only are reparations consistent with the rule of law," he said. "They are in fact a product of the rule of law."
Conyers told the conference, "After slavery ended, a new form of subjugation kicked in. There is a continuing, traceable, uninterrupted connection of racial subjugation that explains why there are ghettos today."
The first reparations for slavery came in the form of land. Titles to 40-acre tracts were distributed to the head of each family of freedmen. Animals that were no longer useful to the military – mules and horses – were given to each household.
In 1989, Conyers introduced a bill which would establish a federal commission to study reparations. It was named HR 40, in honor of the now-famous phrase "40 acres and a mule." But Congress has still not passed HR 40.
Conyers noted that on February 13, 2006, the American Bar Association adopted a resolution urging the US Congress to 1) create and appropriate funds for a commission to study and make findings relating to the present day social, political and economic consequences of both slavery and the denial thereafter of equal justice under law for persons of African descent living in the United States; and 2) authorize the commission to propose public policies or governmental actions, if any, that may be appropriate to address such consequences.
In adopting this resolution, the ABA cited Congress's establishment in 1980 of the Commission on Wartime Relocation and Internment of Civilians. Congress directed the commission to review the facts and circumstances surrounding the impact of the internment during World War II on American citizens and permanent resident aliens.
Margaret Chon, a professor at Seattle University School of Law, told the audience that "the Japanese American reparations experience teaches us about the capacity as well as the limits of law to address injustice, not only for this particular group, but also for all groups that have and continue to be harmed by group discrimination." She said, "If the primary purpose of reparations is to repair past harm, then reparations should include mechanisms to correct past harm that has ˜hardened' into present everyday practices. That is, reparations requests should anticipate ways to effect long-term structural change."
Chon cited the 2000 Civil Liberties Public Education Act. Its purpose is to provide competitive grants for public educational activities and the development of educational materials to ensure that the events surrounding the exclusion, forced removal and incarceration of civilians and permanent resident aliens of Japanese ancestry will be remembered and so that causes and circumstances of this and similar events may be illuminated and understood.
Rebecca Tsosie, a professor at Arizona State University College of Law, spoke about reparations for Native Americans. "There is no ˜uniform' theory of reparations that fits all cultures, all nations, all people. Part of the process is telling the truth," she said. "That's why apology is so important." Tsosie maintained that "'reconciliation' constitutes a process of ˜healing' between groups who have experienced bitter and painful relations."
Professor KJ Greene, from Thomas Jefferson, cited the mass appropriation of Black cultural production as unjust enrichment. He advocated atonement as reparations, not only for the victims, but also for the perpetrators of cultural theft and distortion.
Linda Keller, another Thomas Jefferson professor, discussed reparations for victims of massive human rights violations, with particular emphasis on the compensation system in the new International Criminal Court. "It has the potential to be a comprehensive reparations regime with truly global reach, covering victims of the international crimes of genocide, war crimes and crimes against humanity," she said.
In the United States, "reparations advocacy has recently shifted from legislative efforts to the courtroom," Theodore Kornweibel, a professor at San Diego State University, explained. He detailed the way in which the railroads "employed" over 10,000 slaves yearly, making them the largest example of industrial slavery. Kornweibel said that corporate defendants in recent suits seeking reparations include banks, insurance companies and railroads.
The week before the September 11, 2001 attacks, the United States delegation walked out of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durbin, South Africa. Although framed as opposition to resolutions condemning Israel for its treatment of the Palestinians, the Bush administration opposed the demand that the US pay reparations to African-Americans for the damage they suffered from slavery. Conyers reported at the time that other delegates from the Congressional Black Caucus alleged the US was using the Middle East issue as a smoke screen to avoid discussion of reparations.
But this unique conference at Thomas Jefferson took the issue of reparations head-on. The thread that wove the broad range of scholarly views together was the notion that one size doesn't fit all when it comes to reparations. "Different types of injury proclaim different relationships with disparate national, local, and private entities," St. Louis University School of Law professor Eric Miller told the gathering. "Each requires a different form of reparations and permits a different critique of structural and individual discrimination. Some forms of reparations are appropriate as between nations; others as between discrete groups within a particular society. Some are directed towards government entities, some towards private actors. Some require monetary damages and some require other forms of remediation."
Whether apology, atonement, education, or 40 acres and a mule, the solution must fit the problem. And the problem is racism, which, unfortunately, is still very much with us today.
Marjorie Cohn is a professor at Thomas Jefferson School of Law, president-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.