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Black Reparations … Again
Rep. Sheila Jackson Lee (D–Texas) earlier this year introduced H.R. 40 which is intended to address “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 study and consider a national apology and proposals for reparations for the institution of slavery.” Since that time, many Democratic presidential hopefuls have endorsed her proposal. Senator Elizabeth Warren has stated that she is in favor of government reparations “to black Americans who were economically affected by slavery.” Senator Warren also urges us to “confront . . . the [nation’s] dark history of government-sanctioned discrimination,” an odd qualification given that national and state policy for over 50 years has vigorously enforced civil rights laws in areas like employment, education, housing, and health. Other presidential candidates such as Senator Cory Booker and former Congressman Beto O’Rourke have added their support to Jackson’s proposal.
A national apology for slavery may well be overdue. But the real battle will be over reparations, which any Congressional Commission is likely endorse. There is presently no formulation in the current legislation indicating the size of the financial burden of this program or how reparations should be distributed. Noticeably absent is any effort to reconcile the policy with other proposed new entitlements, including the Green New Deal, free college tuition, and Medicare for All.
How then to approach this particular claim on public resources? The initial premise of the black reparations movement is one that everyone of all political persuasions should accept: there is no place for slavery in any civilized society. But the issue here is not whether slavery is immoral. It is what should be done about that problem over 150 years after slavery was ended, often with the blood of white abolitionists and soldiers whose descendants are asked to be held account for the wrongs that they bitterly fought against. As I have long argued, one particularly troublesome aspect of the black reparations movement is its strained relationship to generally-accepted theories of individual or collective responsibility.
In dealing with ordinary private lawsuits, it is often instructive to ask: who is suing whom and for what? Those questions receive clear answers in commercial disputes between two traders, or even in civil rights claims that discrete individuals bring against the individuals or organizations whom they identify as the source of the discrimination. But calls for reparations are painted on a far larger canvas that do not satisfactorily address three key issues.
First, which people or groups are to pay for the reparations? It is not sufficient to say that the federal government should pay, without asking which individuals or groups should be taxed to cover the expenses. To pay these expenses out of general revenues means that black taxpayers should be included in the pool of potential payers, along with the descendants of many other groups that have also suffered from official and private forms of discrimination, including Chinese citizens whose ancestors were subject to exclusion laws, Japanese who were subjected to years in internment camps, and Jews and Roman Catholics who suffered various indignities, both private and governmental, sometimes at the hands of a shrinking white Protestant majority, many of whose members sought to redress the wrongs in question. Indeed, many citizens of all races arrived long after slavery had ended, and many taxpayers are permanent aliens who do not participate in the political life of the nation. Do they all pay, and if so in what proportions?
Second, who should be the recipient of reparations? Do black immigrants to the United States after the Civil War receive benefits from the programs? What happens with children born hundreds of years later? What should be done with mixed-raced individuals? Senator Warren seems to suggest that the potential eligible pool should include those parties who suffered from government sanctioned-discrimination. But it is far from clear whether all black populations throughout the United States have suffered to the same extent as blacks who were trapped in such places as Mississippi at the height of Jim Crow. It is also difficult to figure out in any individual case, or even estimate, whether and to what extent each individual was adversely affected by slavery, its aftereffects, or government-sanctioned discrimination. Are athletes and entertainers with million-dollar-plus incomes to receive reparations, or is there some income or wealth cap that eliminates at least some potential applicants?
It is impossible to answer the full range of questions that arise separately for millions of people all of whom have had different life experiences. Nor is it clear what account, if any, should be taken of the substantial government aid given to many black individuals and families, sometimes under race-specific programs and sometimes under general provisions of social services, from welfare, housing, Medicare and Medicaid, to unemployment benefits that have long been on the books.
Third, the current claims for reparations do not fit easily into any known theory of remedies. The strongest lawsuits always address claims that a victim brings against a wrongdoer. For these purposes, the relevant claims come in two sorts. The first claims for reparations point to the deliberate and premeditated acts of theft and despoliation committed by white slave owners and others against black slaves. The second, sounding in restitution, alleges that when the defendant has been unjustly enriched by taking the fruits of the plaintiff’s labor, the plaintiffs are due recompense for those benefits wrested from them by force. Both of these claims resonate in connection with the many sins of slavery. But the moment all the original victims and malefactors are gone, neither of these theories can easily apply. The descendants of any given wrongdoer are not themselves wrongdoers, and in any private dispute, the estate of the decedent could be held liable in a wrongful death action, but no one could seek to recover for those wrongs from the separate assets, independently acquired, of their descendants.
On the restitution side, it is tempting to say that the descendants received the gains that their ancestors wrongfully accumulated, which they are now bound to return. But claims of this sort typically fail for many reasons, the simplest of which is that the wrongdoers who have gained from these illegal actions have long ago consumed the benefits they obtained, making it is very difficult to trace these wrongful gains down across generations. Indeed, progressives have to look at themselves in the mirror because most of the more recent activities that have hampered the economic progress of black citizens can be laid at their doorstep. Legislation like zoning, unions, minimum wage laws, and fierce opposition to charter schools have long disadvantaged black individuals. Indeed, the recent improvement in wages for black and minority citizens is largely attributed to the labor market liberalization of the much reviled Trump administration. The lesson is that voluntary market exchanges can produce wealth far more than any transfer program no matter how noble (or partisan) the motivations.
Nor does a program of the size and scale of black reparations gain any traction from the successful, focused reparations programs of the past. The German reparations program following the Holocaust, signed by Germany and Israel in 1953, came right after a systematic campaign of extermination that in scope and sheer evil exceeded ignominies of slavery and segregation, horrible brutal as they were. And the activities of the Holocaust were all organized by a unified government in a short twelve-year period, not over decades in which many key legislative, executive, and judicial bodies were united in their opposition to discriminatory practices. No one would think that a German reparations program should have begun 150 years after these gross atrocities were committed.
Nor are the long-overdue Japanese reparations for the World War II internments an apt precedent for black reparations today. President Ronald Reagan signed the Civil Liberties Act of 1988 which issued a public apology and provided for a payment of $20,000 to each camp survivor, for a total estimated at $1.25 billion. But no provision was made to provide additional payments to the spouses and descendants of these survivors, which is the demand made in the case of black reparations. No nation should ever forget the sins of its past. But by the same token, the most important task going forward is to heal the tattered social fabric. At this point, we need closure, not further animosities, which is just what we are likely to see if Congress does establish a reparations commission.
© 2019 by the Board of Trustees of Leland Stanford Junior University
Published in Law
Will they be bringing back the “one drop rule”?
As thorough and thoughtful as are Professor Epstein’s arguments he misses the most simple point of this issue, that no one expects that there will ever be a single penny paid to anyone ever for reparations for enslavement prior to 1865. This is a political red herring. The left pulls out all of their silly wishlists whenever they are out of power and seeking to regain it. Even though they know that a large majority of their followers find these “goals” absurd, they know that there are a number who will believe this nonsense and back the demagogue or his/her party in the election which could push the numbers of electors on their side over the top. The Green New Deal is the same kind of idiotic nonsense. Perhaps AOL believes it, but, given her level of sophistication and lack of self-awareness, that isn’t a surprising. As for the rest, Beto being the possible exception, there is a degree of woeful cynicism in their support for these pipe dreams currently being resurrected out of desparation by a party which sees its relevance rapidly declining against the onslaught of Trump’s “winnings.” My sense is that this stupidity will simply mobilize at least and equal number of centrists who find this kind of rhetoric a bit threatening to their own sense of entitlement about things like infrastructure, decent schools, controlled immigration, and a host of other issues where funds could spent meaningfully. There is a vast pool of ignorance out there, but there is also a sense of fairness, and few would find reparations added onto the years of Affirmative Action hiring which deprived many of advancement because their are white or males or both to be anything approaching fairness.
That was a whole lot of legal analysis to answer absurdity.
Last I looked, 600,000 people were killed to end slavery. That was price enough.
Oh, but wait, we have had Affirmative Action and lots of Amendments to the Constitution and many other good things as reparations.
The people who held others as slaves are all dead. The people who were slaves are all dead.
My family did not get here until after slavery ended. I make no apology to anyone for what those people did. There can be nothing sincere about an apology given by those who made no offense, and given to those who have never been offended.
Sheila Jackson Lee is an ongoing embarrassment to our Congress and our country.
Shouldn’t the Indians be first in line for reparations? We could just cut a check to Elizabeth Warren and ask her to distribute the funds to her people.
Everyone living who owned a slave should pay everyone living who was a slave reparations.
The Grifter Tribe?
I demand Saxony for the Saxons, and reparations from France for what William de Bastard did to the Anglo-Saxons after 1066 AD.
And then history will not change one bit. What happened, happened. Also what happened between then and now, as RE noted, has been a steady effort to not only right those wrongs for the descendants of slaves, but there are groups that have shared the benefits without the shared history. And there will be groups that will pay that already paid (war) the price to make every state free. This isn’t about history, but ideology and identity.
I’m all for it. No Republican has owned a slave and almost all of those that did own slaves were Democrats. Thus, every registered Democrat should be taxed and all non-Democrat’s who can prove to be descendants of slaves should get a nice check. However, they should be required to renounce US citizenship and move to Liberia in order to cash said check.
The problem is that Professor Epstein is attempting to analyze this outrageous idiocy rationally. This proposal has zero, zilch, nada to do with anything rational. If we want to repay all the sins of history, we will need more money than God. So to speak.
The proposal is so absurd that its motive has to be mere pandering.
By the way, I’m Irish and I had an ancestor who was brought to America in servitude. I no doubt could have done better in my life — more money, a prettier wife with larger breasts, and better behaved kids — if it hadn’t been for that episode in servitude back in the 1700s.
I deserve something! If you want to send me a few bucks, here’s my address: 1300 North Farthing way, Ding Dong, Texas.
I can definitely tell that your wife never reads this blog. Even so, you are playing with fire. These are things a man only thinks to himself and never, ever, ever says out loud!
Cdor, as you know, the governor that control’s one’s thoughts wears out over time. I’m eighty now so my governor is pretty much shot.
OK..Governor..I’m too chicken to say it–not think it.
Damn it Richard, how many times do we have to apologize? The more I think about it, the more I say, “No, we don’t have to apologize. That’s the way it was back then, we were wrong, and we fixed it.”
Besides, we didn’t invent slavery. It was there before we became a country, while we were a young country, we got rid of it, but it still exists in the world today. We should turn our attention to slavery as it exists today – or is that too hard for you liberals to deal with? Hmmmm?
Right on, Stad. I don’t apologize for anything that I wasn’t personally responsible for. I don’t apologize for the lefty nonsense that English professors spread, for my Okie grandparents’ racism, or for my Northern Irish ancestors’ sneak attacks on the English.
I do apologize, however, for my inability to place these comments within your response.
I suddenly sympathize with the folks who swear at every Republican victory that they will leave the country. I endured Obama, but this may be about the only thing that would make me feel like an exit if it ever got serious. Then again, I suspect there would be one heck of a lot of passive resistance.
Minorities had a chance at the opening of the “Great Society” era to ask instead for reparations, and they did’t. Things have only gotten more complicated since then, so they blew it.
My great great grandfather’s farm in PA was the last stop for one of the Underground Railroads. Sadly, he was mistakenly shot in the back by a runaway slave. To this day, no one in the family holds any animosity toward that man – or any other black person. It was just a horrible mistake.
When one looks at human history, slavery was the norm along with poverty, hunger, disease, etc. All of that still exists. @stad is correct. We should focus on today’s slavery and ways to mitigate that and the other ills of society. Tho, as history has proven, we can’t eradicate all of those problems.
No to reparations.
I think our friend is just pointing out the notion’s absurdity. He’s well aware it isn’t. The only real question is whether anyone thinks it’s serious.
Personally, since the Democrats were the party of the Confederacy, Jim Crow, and segregation, I’m in favor of reparations. But only registered Democrats should have to pay.
It is serious for the people the bill was written for, and when the bill fails people will be encouraged to feel ripped-off.
No it is not.
A war was fought. People spilled blood to end it.
What is overdue is Democrats apologizing for Jim Crow and their ongoing racisim.
The Japanese-American reparations are the perfect model for slavery reparations. Let’s even double the money. $40,000 for every surviving ex-slave.
An absolutely brilliant solution which I fully support.
Well I couldn’t stomach even clicking on this yesterday, but here we go (Georgetown U students leading the way?). If this ever really took off, I can’t imagine anything that would create more active dislike of the recipients (however they are determined) once average people’s hard earned money is approved to be transferred forcibly from one group to another group. I think that would happen even if disguised as taxes.
https://www.bbc.com/news/world-us-canada-47886292
At least with normal lottery winners, you have a choice whether to voluntarily buy a ticket.
For one silly moment I thought the four students were going to pay it out of pocket.
Nah. Like Dem-millionaires they want someone to make them and everyone else pay.