Excerpted from: Eric K. Yamamoto, Sandra Hye Yun Kim, and Abigail M. Holden, American Reparations Theory and Practice at the Crossroads, 44 California Western Law Review 1 ( Fall 2007) (398 Footnotes) (Full Document)
Slowed by controversial legal claims, skeptical judges, and flagging mainstream public support, American reparations theory and practice stand at a crossroads. The path they next traverse will likely determine the long-term viability of reparations claims, not only for African Americans, but also for anyone suffering the persistent wounds of injustice. The stakes are high and include both healing for those still hurting and progress for America's communities marked by misunderstanding, mistrust, and division. Indeed, at stake is the healing of the nation itself. All have an abiding interest.
The deep economic and psychological wounds of social injustice sometimes persist over generations. Yet, reparations opponents, who argue simply that “it's time to move on” have made strong headway in policy arenas and courts, and despite intermittent success of reparations, pro-reparations scholars and advocates disagree markedly over how best to repair long-standing damage. Professor Alfred Brophy's influential writing thus calls for “reconsidering reparations.”
In this spirit, in light of the stakes and in the hope of generating practical theory that links scholars and frontline advocates with legal policymakers and the American public, we offer an American reparations path that elevates the role of “social healing” and links group and societal healing to “doing justice.” To help chart this path, we suggest that reparations-as-repair scholars and advocates generate a strategic framework that draws deeply from multidisciplinary understandings of social healing and multifaceted global reparations attempts at symbolic and practical justice.
The suggested framework of social healing through justice bears three distinct markers. First, it builds upon the substantial scholarship embracing reconciliation (rather than compensation) as a conceptual foundation for reparations. It diverges, however, by expressly highlighting the role of justice in social healing and by using language that is less controversial than “reconciliation.” Second, it casts reparations not as the end in itself, but instead as an integral aspect of the larger project of social healing--as the culmination of a series of strategic efforts targeting recognition, responsibility, and reconstruction. In doing so, social healing through justice identifies repairing damage to group members and building new relationships as focal points for fostering an interest-convergence among the victims of injustice, citizens' groups, and society itself. And third, the path is marked by an emphasis on reparations practice; or more specifically, on the insights drawn from recent ground-level struggles worldwide to redress the harms of injustice as a pivotal element of a country's democratic legitimacy--a globalization of American reparations.
To ground these broad observations, consider the following three modern global snapshots of reparations theory in action: Gender and Reparations, The Tulsa Race Riots and the Inter-American Court of Human Rights, and Canada's Multifaceted Reparations for Systemic Abuse of Aboriginal Children. . . .
Collectively, these global snapshots offer glimpses into possibilities for further development of practical theory at America's reparations crossroads.
As a backdrop, Part II surveys three generations of recent reparations scholarship. In particular, it critiques and suggests moving away from the third generation's tight framing of reparations as legal compensation.
Part III describes scholarly reaction to that narrow legal framing through a fourth generation's renewed repair paradigm for reparations. Part III then advances this article's main theme and offers a refashioning of the repair paradigm explicitly to cast reparations as a critical aspect of the broader project of social healing through justice.
To do this, and to encourage critique and further development, Part IV first updates multidisciplinary understandings of social healing--broadly revisiting often overlooked commonalities among theology, social psychology, socio-legal studies, political theory and indigenous people's healing practices. Part IV then coalesces those commonalities into a framework of recognition, responsibility, reconstruction, and reparation to guide the kind of justice effort that promotes social healing.
Part V enlivens this justice aspect of social healing by exploring the salutary impact of international human rights norms and litigation on two levels: first, by shaping public consciousness about what is right and just, even when courts are unable to officially enforce human rights norms; and second, by building new reparations alliances across geographic and ideological borders. Finally, Part V discusses the globalization of contemporary American reparations theory and practice.
This approach highlights the centrality of African American claims and also expands the horizon to encompass other groups struggling for redress in the United States, including: Native Americans, Native Hawaiians, Japanese-Latin Americans, Mexican Americans, Puerto Ricans and, in some instances, black women. It also more closely links American reparations with reparation movements in other countries, for instance, the Pan-African campaign for European reparations for slavery and the harms of colonization.
The salience of an encompassing reparations approach was underscored recently in England. As the 200th anniversary of Britain's abolition of slavery approached, British, African, European and Caribbean groups, led by the Pan-African Coalition for Reparation and the Rendezvous of Victory, pushed then-British Prime Minister Tony Blair to acknowledge England's imperialist history and apologize for its role in promoting the transatlantic slave trade. In a widely publicized written statement in late 2006, Blair first acknowledged:
The transatlantic slave trade stands as one of the most inhuman enterprises in history. At a time when the capitals of Europe and America championed the Enlightenment of man, their merchants were enslaving a continent. Racism, not the rights of man, drove the horrors of the triangular trade . . . [and] three million died.
Blair then recognized Britain's active role in the slave trade and acknowledged that Britain's “rise to global pre-eminence was partially dependent on a system of colonial slave labour . . . .” He also expressed regret in saying “how profoundly shameful the slave trade was--how we condemn its existence utterly . . . [and] express our deep sorrow . . . .” His language of mutual engagement hinted at social healing
Community, faith and cultural organisations . . . [and] [w]e in Government, with local authorities, will be playing our full part. And the UK is co-sponsoring a resolution in the UN General Assembly, put forward by Caribbean countries, which calls for special commemorative activities to be held by the United Nations . . . .
Blair's acknowledgment and apology for slavery and commitment to broad-ranging community activities were significant because they were the first by a leader of a former world colonial power instrumental in fueling the slave industry and casting millions into untold misery. Nevertheless, Blair did not commit England to reparations, and some therefore criticized his statement as little more than usual politics--all image, no substance. Others, however, viewed his tone and substantive acknowledgments as a beginning step toward a much needed national reckoning with the divisive effects of historical slavery and present-day racism.
Will the United States government and its people take the next steps down a path of national reckoning? The process thus far has been marked by fits and starts, and has been riddled with controversy. Will Americans chart a new path toward healing the long-standing wounds of injustice in ways that benefit those harmed, the general populace, and the country itself? The stakes are high: diminishing or perpetuating racial misunderstanding, mistrust, and social division, as well as bolstering or undermining American democracy. The available paths toward reparations are complex and difficult. In light of the impact on America and the world, all have an abiding interest in the future of American reparations theory and practice.
. . .
In March 2007, Virginia, the former capital of the Confederacy and largest slaveholding state, authored a lengthy legislative resolution expressing deep regret for Virginia's pivotal role in African American slavery and the exploitation of Native Americans. The unanimous resolution employed language of healing. The resolution recognized that “the spirit of true repentance on behalf of a government, and, through it, a people, can promote reconciliation and healing.” The resolution also aimed to link the lessons of the past to Virginia's future to “avert the repetition of past wrongs and the disregard of manifested injustices.”
But, despite its acknowledgments, expressions of “profound regret” and “call for reconciliation,” the resolution stopped short. After political wrangling and compromise, the resolution omitted any language that might have been construed as a springboard for reparations. Indeed, even the word “atonement” in the initial draft was stricken because the “word could prompt claims for reparations--monetary compensation.” Claims for compensation would doom the resolution.
Yet, for Ron Walters of the African American Leadership Institute, even though Americans may never agree on reparations, the Virginia resolution was significant because “‘the discussion about it is extremely important’ for national healing . . . .” Similarly, for Vonita Foster of the U.S. National Slavery Museum, the expression of regret was a “‘very positive step.”’
Virginia's pro-active “step,” the first of its kind by a state, may well have been momentous. Yet that step generated a slew of questions. How significant are the words of acknowledgment, responsibility and regret? Are they enough to foster healing? If they are only a step in the healing process, what are the other steps? And why did the language of reconciliation and healing generate an interest-convergence (unanimous approval), while even a rhetorical hint of reparations or compensation raised enough hackles to ensure defeat? Why did the resolution speak of horrific harms, but remain silent about the reconstruction of economic and social institutions needed to respond to the present-day effects of slavery, segregation, and colonial exploitation?
In the face of these multi-layered questions generated by the Virginia resolution, how should African Americans and the American populace respond? How does Virginia as a former slaveholding state, and how do we as a society, assess this effort to promote reconciliation and healing? Is it truly a reparatory act, or merely empty words? Are the efforts complete, or are more steps to come? And should those assessments be altered by the recent federal court rejection of all major slavery-based reparations claims and bolstered by the chorus of reparations nay-sayers?
At this moment, standing at the crossroads, American reparations theory charts a murky path. In light of the stakes and in hopes of generating practical theory that links scholars and frontline advocates with policymakers and the American public, we have suggested next steps down an American reparations path that elevates the role of “social healing” and links group and societal healing to “doing justice.” To help chart this path we have suggested that reparations-as-repair scholars and advocates generate a strategic framework that draws more deeply from multidisciplinary understandings of social healing as well as from multifaceted global reparations attempts at symbolic and practical justice.
The suggested framework of social healing through justice bears three distinct markers. First, it builds upon the scholarship embracing reconciliation (instead of compensation) as the conceptual foundation for reparations. It diverges, however, by expressly highlighting the role of justice in social healing and by deploying language that is less controversial than “reconciliation.” Second, it casts reparations not as an end in itself but instead as an integral aspect of the larger project of social healing--as the culmination of a series of strategic efforts targeting recognition, responsibility, and reconstruction. In doing so, it identifies repairing damage to group members and building new relationships as focal points for fostering an interest-convergence among the subjects of injustice, citizens' groups, and society itself. And third, the path is marked by an emphasis on reparations practice; or more specifically, on the insights drawn from recent ground-level human rights struggles worldwide to redress the harms of injustice as a pivotal element of a country's democratic legitimacy.
Through this framework's lens of recognition, responsibility, reconstruction, and reparation, Virginia's resolution emerges in sharper focus--both as a promising first step and as a starkly incomplete embrace of the kind of justice that “promotes healing and reconciliation.” Briefly stated, the legislative resolution for the first time officially recognizes the history and harms and acknowledges Virginia's responsibility. Yet, the extent of popular support is unclear.
More important, although calling for healing through reconciliation, the resolution does not commit to, or even hint at, forthcoming state acts of reconstruction to repair the very foundations of present-day damage in the schools, workplaces, housing, and financial practices. And passage of the resolution was premised on supporters' apparent renunciation of claims for reparations. Perhaps more will follow, but if Virginia moves no further, believing that nothing more can or should be done, then the social healing through justice framework predicts major stumbling on the path to Virginia's stated goal of healing and reconciliation. The framework's assessment reveals that without meaningful acts of reconstruction and reparation, there will not likely be the kind of ground level experience of justice that promotes social healing for African Americans or for the people of Virginia.
Nevertheless, the framework also illuminates the potential role of Virginia's statement of regret as a catalyst for shifting national “public consciousness” over time about what is right and just. The articulation of human rights principles of equality, freedom, self-determination and redress for injustice in courts of public opinion as well as law (even when legally unenforceable), bear on the United States' legitimacy as a democracy at the very moment America is struggling to find moral grounding in the eyes of much of the world. Whether the United States redresses the continuing harms of American injustice to people within its borders, will speak loudly about its actual commitment to democratic principles and human rights.
Indeed, several states are now considering legislative statements of apology or regret similar to Virginia's and to the Senate's apology for inaction in the face of widespread Jim Crow lynching. Some states may even move further toward reconstruction and reparation. Virginia's resolution may turn out to be a long-range catalyst for southern states and possibly for America as a whole.
But, we submit, this will only occur if reparations scholars and advocates chart and walk a strategic path that far more deeply engages mainstream America in a project that explicitly locates reparations within the larger project of social healing through justice. With this in mind, along with the urgency of pending reparations claims of African Americans, Native Americans, Native Hawaiians, Mexican Americans, Japanese-Latin Americans and Puerto Rican Americans, all have an abiding interest in the next steps for American reparations theory and practice at the crossroads.
Professor of Law, William S. Richardson School of Law, University of Hawai‘i.
Class of 2007, William S. Richardson School of Law, University of Hawai‘i.
Class of 2007, William S. Richardson School of Law, University of Hawai‘I.