Friday, January 19, 2018

Slavery to Reparations

Slavery and Tort Law

Keith N. Hylton

Abstract of: Keith N. Hylton, Slavery and Tort Law, 84 Boston University Law Review 1209- 1255, 1209-1213 (December, 2004) (186 Footnotes Omitted)

On March 26, 2002, a class action complaint seeking reparations for slavery was filed in the federal district court for the Eastern District of New York under the name Farmer-Paellman v. FleetBoston. The complaint named as defendants FleetBoston Financial Corporation (a bank), Aetna (an insurance company), CSX (a railroad) and a large number of unnamed corporations described as "Corporate Does Numbers 1- 1000." The complaint asked for restitution, compensatory damages, punitive damages, and an accounting of the profits earned by the predecessors of these firms from slavery.

The FleetBoston complaint transformed a long-discussed theoretical matter into a living animal with the potential to bite someone. For up until the date of the complaint, the reparations debate had been conducted largely among friends and receptive audiences. Anyone who objected to the notion of paying reparations for slavery could ignore the issue, and most people did just that. One member of Congress, John Conyers, introduced a bill seeking slavery reparations twelve years in a row, each time meeting a lopsided defeat and a collective yawn from his colleagues. The class action suit, though a long shot from the start for the plaintiffs, represented a significant change in the terms of the debate.

This paper evaluates the claim for slavery reparations from a torts perspective. I start with an examination of the injuries inflicted on slaves, and the extent to which tort law provides a vehicle for redressing these injuries. Next, I address the question of "derivative claims," claims brought by someone other than the direct victim. This category of claims covers the reparations complaint. As I will explain, tort law, for the most part, has not been receptive to derivative claims. Lastly, I discuss the accounting demand by the reparations plaintiffs.

Tort doctrine appears to be inadequate as a means of converting the injuries to slaves into claims for damages. Slavery involves some obvious torts, such as assault and battery, conversion, and wrongful confinement. A person held as a slave today could surely collect damages. Slavery also involves a category of "social torts," however, that are equally if not more harmful, for which tort law appears to be an inadequate means of seeking compensation. Among these social torts are the slave marriage, the deprivation of status, and the denial of religious freedom. Traditional tort doctrine does not have any readily available "forms of action" for these injuries. And yet it is the social torts that are potentially most damaging to slave descendants because, like a constantly mutating virus, they have the capacity to injure successive generations.

Of course, reparations claims are derivative in the sense that they are not brought by direct victims, and thus the fact that a person held as a slave today could collect damages does not tell us whether descendants of slaves should be able to seek compensation through the tort system. The derivative status of reparations claims presents special obstacles for plaintiffs. However, the fact that slavery was entirely within the law when it was practiced should not be viewed as a substantial obstacle. The slaveholder sought a regime in which the law would not constrain him in his dealings with slaves. Applying today's law to that relationship should be viewed as bringing law to a regime from which it had been entirely displaced, not as a retroactive application of a different set of rules.

The more troubling problem for plaintiffs is the passage of time. After enough time has passed, tort doctrine shuts the door on compensation claims based on old and distant injuries. The FleetBoston complaint and its progeny are clearly vulnerable to this argument.

The only component of the new reparations claims that has the potential for social gain is the demand for an accounting. Information on slavery's victims and how they were hurt has been readily available for a long time. Information on slavery's beneficiaries and precisely how they profited should also be in the public's hands, for it has the potential to clarify perceptions on the social costs of slavery, bring about a more honest exchange on racial issues, and reduce incentives to discriminate in the present. I would prefer to see the scope of the demand expanded to include information not only on profits from slavery, but also profits from the oppressive and discriminatory regimes that appeared in its wake.

[1]. Professor of Law and Paul J. Liacos Scholar, Boston University,

Unjust Enrichment and Reparations for Slavery

Dennis Klimchuk

Abstract of: Dennis Klimchuk, Unjust Enrichment and Reparations for Slavery, 84 Boston University Law Review 1257-1275, 1257-1259 (December, 2004)(67 Footnotes omitted)

As a number of commentators have argued, and as recent developments in the slavery reparations litigation attest, actions in unjust enrichment brought by descendants of African American slaves against corporations that benefited from slavery face a number of serious procedural and substantive hurdles (barriers, on some tellings). Without meaning to suggest that these problems - for example, limitation periods and difficulties with tracing and quantifying the enrichment - are mere technicalities that do not also raise questions of justice, or are otherwise unimportant, I would like to set them aside. My concern here is with a moral objection to framing claims for reparations for slavery as claims in unjust enrichment. The objection, pressed by Tony Sebok in a series of recent articles, applies in particular to claims aiming to recover the value of slave labor and profits derived from it. Sebok's objection is that framing the reparations claim in this way profoundly misrepresents the wrong of slavery. "If you want to be overly literal," he argues, "to enslave someone is to force him to work without pay. But that's an impoverished understanding of what happened . . . during the period of American slavery." It is impoverished because it "suggest[s] that the wrong of slavery is that, after they were kidnapped, beaten, and abused, Africans and their descendants were not salaried." In short, it reduces the grossest of human rights violations to an outstanding bill for services.

This is a deep and important criticism. This criticism draws attention to an aspect of private law to which more attention is due, namely what we might call the moral-expressive content of legal actions. A quick, but only partial, answer is that Sebok's criticism overstates the reductive message of the recent litigation, in which unjust enrichment is only one of a number of causes of action brought, and the retention of unpaid wages and resulting profits only one of a number of wrongs alleged. Still, the criticism matters, because even if one among many, the unjust enrichment claim is being made. Furthermore, if sound, it reaches not only the recent litigation, but also a long line of arguments in support of legislated reparations that rest (at least in part) on the claim that the unremunerated value of slave labor represents a persisting unjust enrichment at the expense of the descendants of slaves.

I will argue, however, that the moral-expressive content of the claim in unjust enrichment gets the wrong of slavery exactly right. The bulk of my paper is taken up with outlining the account on which my analysis rests. I'll begin there, and return to the slavery claims only in the final section.

[1]. Associate Professor, Department of Philosophy and Faculty of Law, The University of Western Ontario.

Reparations as Redistribution

Kyle D. Logue

Abstract of: Kyle D. Logue, Reparations as Redistribution, 84 Boston University Law Review 1319-1374, 1319-1324 ( December 2004) (160 Footnotes Omitted)

The most controversial, and most intriguing, remedy sought by proponents of slavery reparations involves massive redistribution of wealth from whites to blacks within the United States. This is not to say that reparations proponents have focused only on racial redistribution. Some have called for an official apology from the U.S. government. Others seek the creation of a foundation or institute, funded by U.S. tax dollars, to be devoted to furthering the interests of African Americans, including the funding of K-12 educational programs for black children and the funding of general civil rights advocacy to counteract the lingering effects of racism in American society. In a relatively new twist, some state governments have passed laws requiring companies to disclose the extent to which they or their predecessor companies were involved in or benefited from the practice of slavery; and some local governments - notably, Chicago, Los Angeles, and Detroit - have adopted ordinances requiring companies seeking to do business with the city's government to disclose any profits they received from slavery. A similar slavery "accounting" was also one of the remedies sought in the recent lawsuits brought by slavery descendants against corporations alleged to have historical ties to slavery. Nevertheless, at the core of most slavery reparations proposals are calls for either cash or in-kind transfers from whites to blacks. Such redistributive programs will be the focus of this Article.

Broad-based racial redistribution would, according to proponents, provide a measure of compensation to the present generation and perhaps to future generations of African Americans for the harms caused by slavery, including the many years of unpaid slave labor. Furthermore, a white-to-black redistributive transfer would reduce the colossal inequality of resources between whites and blacks in America. Given the historic scope of the injustice slavery represents, the potential size of a fully "reparative" transfer could be astronomical. Although most slavery reparations proponents decline to suggest specific dollar estimates of the appropriate transfer, some are willing to venture a guess. One researcher, for example, focusing on a stolen-labor measure of harm and using 1790-1860 slave prices as proxies for the value of unpaid slave labor, calculated a sum of between $448 billion and $995 billion, which in 2003 dollars would be approximately between $2 trillion and $4 trillion. By comparison, the entire U.S. government budget in 2004 is projected to be just over $2 trillion. More recently, taking a different approach to assessing the social harm associated with slavery, sociologist Dalton Conley suggested that if all of the present wealth gap between African Americans and whites were attributed to the institution of slavery and related injustices, a one-time transfer of 13 percent of existing white wealth would be necessary to eliminate the black-white wealth disparity entirely. Alternatively, Conley suggested that a better approach might be to determine what fraction of existing household wealth is attributable to inheritance from prior generations, and to use that number to determine the extent to which current levels of black household wealth lag behind those of whites because of slavery. Following that approach, Conley arrived at a more modest one-time tax of 3.7 percent of white household wealth to be distributed among African Americans.

Only the most radical reparations supporters would regard such a massive wealth transfer as desirable, and few people - perhaps none - would regard it as politically plausible. Putting aside the discussion as to amount, the idea itself of a transfer of resources from whites to blacks is intriguing. What would such a transfer even look like? Perhaps the most obvious and most controversial possibility would be a program of direct cash transfers to African American taxpayers funded by federal tax revenues or, as suggested above, by some special tax on whites. Indeed such a system is what many slavery reparations proponents seem to have in mind. That type of racially redistributive cash transfer, however, is not the only possibility. Once we broaden the notion of what counts as a program of redistribution, it becomes clear that we already engage in some degree of racial (white-to-black) redistribution, some of which is controversial and some of which, apparently, is not. Thus, for example, affirmative-action programs can be seen as a prominent real-world example of an explicitly race-based in-kind transfer from whites (and Asian Americans) to blacks (and some other racial and ethnic groups, such as Native Americans). Moreover, even transfers that are not explicitly race-based can be understood as a form of redistribution by race. For example, because blacks are overrepresented in most inner-city metropolitan areas, any federal or state spending programs that primarily benefit the inner city, but that are funded by general tax revenues would have a racially redistributive effect. Even certain types of anti-discrimination law can be seen as having a racially redistributive component, insofar as it such laws result in racial cross-subsidization of blacks by whites. An example of this would be laws against racial discrimination in insurance underwriting. The point here is that broad-based racial redistribution, from all or almost all whites to all or almost all blacks, can take many forms. One of the lessons of this Article will be that all of these various program-design issues must be taken into account by those calling for slavery reparations in the form of white-to-black redistribution.

My main argument is straightforward. First, I contend that some level of redistribution from whites to blacks - whether paid in-cash or in-kind, whether explicitly race-based or only implicitly so, and whether labeled reparations or something else - can be defended on fairly intuitive and straightforward distributive justice grounds. The idea is that, according to every empirical study of the issue, African Americans are on average significantly less well off than whites. Moreover, the inequality extends to almost every conceivable measure of well-being - income, wealth, education, employment, health, housing, even life expectancy. Given this fact, and given especially this country's history of slavery and segregation, it is not difficult to argue that the government ought to spend some resources to reduce that inequality. Although the conclusion is not especially new, the distributive justice angle has been largely overlooked in discussion of slavery reparations. Second, I argue that any program to effect racial redistribution or reduce racial inequality - again, whether labeled reparations or not - should be informed by the basic lessons of public finance economics, a field that has long been devoted to the problem of designing real-world distributional programs. Drawing on that literature, I point out that the concept of race has three qualities that make it a surprisingly useful tool, at least in theory, for implementing an egalitarian vision of distributive justice: (a) race is one of the best predictors of, or proxies for, overall social and economic well-being; (b) unlike redistribution with respect to other proxies for well-being, such as redistribution with respect to income or wealth, redistribution on the basis of race will not cause labor-market distortions, because race is relatively immutable; and (c) race is relatively observable. For all of these reasons, redistribution on the basis of race, at least in theory, has the properties of a distributively just lump-sum transfer program. Third, although I do not here endorse any particular racially redistributive program, I point out the costs and benefits of several alternative forms that programs of racial redistribution might, and in some cases already do, take. Included in that discussion are direct cash transfers from whites to blacks (perhaps administered through the federal tax system), which would probably be unconstitutional but which provides an interesting point of comparison. I also discuss a range of in-kind redistributive programs, from race-based affirmative-action programs to federal funding of urban housing and educational programs to certain types of anti-discrimination law, all of which may be constitutional, depending on their particular design details. One point of emphasis in the Article is that, although redistributing explicitly on the basis of race may have certain advantages, such as the absence of labor distortions that accompany income or wealth redistribution and the increased precision of the redistributive transfers, there are disadvantages that have to be considered as well, such as the difficulty of defining and policing racial categories for the purpose of administering a redistributive program. In addition, it may ultimately be that there are other proxies for well-being besides race (such as geography) that can be used to produce a distributively-just lump sum transfer, but those systems will inevitably have drawbacks as well.

Before launching into my primary argument regarding the use of race in redistributive programs, I should point out that my focus on reparations as redistribution is a departure from the general thrust of the slavery reparations literature. Instead, most reparations scholars and activists view reparations as an issue of corrective justice, of rectifying a historic wrong. That vision of reparations, insofar as it builds on the notion of corrective justice that is employed in the private law context, is derived from an analogy to tort law, which says that if person A wrongfully harms person B, A must pay compensation to B. That view of slavery reparations has considerable appeal. Much, probably most, of the inequality between blacks and whites today, which I describe in some detail below, is doubtless attributable directly or indirectly to the historical injustices of slavery, Jim Crow, and subsequent discrimination. And it is certainly understandable that reparations proponents would seek to link racial redistribution directly with those past injustices. To ignore that link would itself be an injustice, as well as perhaps a tactical political (and perhaps legal) error. Nevertheless, because of the amount of time that has elapsed since the end of slavery and the difficulty of assigning blame today for what happened hundreds of years ago, a program of slavery reparations that involved large-scale redistributive transfers from whites to blacks would not fit neatly within the conceptual category of corrective justice. Again, I am not arguing for ignoring the past. To the contrary, as will become clear, my distributive justice argument has an important historical component. Rather, my primary argument is that whether and how society ought to structure a slavery reparations program depends on what such a program is expected to achieve. The goal of slavery reparations - whether it is to achieve distributive justice by reducing the substantial inequalities between whites and blacks, or to achieve corrective justice, which requires identifying specific wrongdoers and assigning them blame for the harms caused by slavery - will have important implications for the design of the program.

The Article proceeds as follows. Part I describes the private-law roots of corrective justice and explains how the move from paradigmatic private-law setting (the simple tort or contract case) to group-based harm saps the intuitive strength of the corrective justice rationale. Building on this conclusion, Part I then points out some of the conceptual and practical difficulties with applying the corrective justice rationale to slavery reparations that take the form of broad-based transfers from whites to blacks. Next, Part II argues that some level of white-to-black racial redistribution can be justified on the basis of a modest (and fairly conservative) version of egalitarian distributive justice, although I make no claim as to the appropriate amount. Part III emphasizes the lump-sum (and therefore relatively efficient) nature of racial redistribution, discusses some of the alternative forms that racial redistribution might take, and highlights some of the costs and benefits of those alternatives. The final section in Part III also responds to some of the most obvious objections to the idea of racial redistribution of any kind. As I conclude there, it may well be that the expressive or political problems associated with racial redistribution - such as the hostility that might be created among non-black citizens who would be required to pay the cost of the program and the expressive harms experienced by blacks who regard the program as demeaning - would outweigh the social benefits of such a program. That is an issue, I argue, for voters to decide. Indeed, insofar as government programs that implicitly engage in racial redistribution already exist, the voters have already decided. The question is whether more, or less, should be done. Part IV then concludes.

[1]. Professor of Law, University of Michigan Law School.

The Role of the Federal Government in Slavery and Jim Crow

David Lyons

Excerpt from:  David Lyons, Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow , 84 Boston University Law Review 1375-1404, 1375- 1378, 1386-1397 (December, 2004) (167 Footnotes Omitted)

Chattel slavery was a brutally cruel, repressive, and exploitative system of racial subjugation. When it was abolished, the former slaveholders owed the freedmen compensation for the terrible wrongs of enslavement. Ex-slaves sought reparations, especially in the form of land, but few received any sort of recompense. The wrongs they suffered were never repaired.

No one alive today can be held accountable for the wrongs of chattel slavery, and those who might now be called upon to pay reparations were not even born until many decades after slavery ended. For some scholars, the lack of accountable parties makes current reparations claims preposterous. Such reactions are understandable, but they do not settle the matter.

My concern in this paper is not the legal but the moral merits of reparations claims. If we think of such claims as referring only to chattel slavery and as calling for transfers among individuals, these claims face serious difficulties, which I discuss in Part I. Recent legal claims, however, diverge from that pattern by seeking recompense from corporations for their complicity in chattel slavery, or from governmental bodies for their responsibility for more recent wrongs. Although no claim has yet been successful, if such suits were to succeed, they would bring some measure of relief and vindication to current claimants, but they would fail to address the conditions that underlie reparations claims, namely, deeply entrenched systemic conditions that require large-scale corrective programs. The current legal claims do, however, suggest a useful shift in thinking about reparations.

We need first to look more broadly at U.S. history, and second to remind ourselves that racial subordination was not primarily a matter of private arranging but essentially a matter of public policy. Chattel slavery was only the first stage of institutionalized racial subordination. Some freedmen left the rural South, but most ex-slaves remained in the South and entered another form of peonage, as tenant farmers or sharecroppers, in a new system of racial subordination. After a brief, aborted period of Reconstruction, slavery was followed by Jim Crow, another brutally cruel, repressive, and exploitative system of racial subjugation. Jim Crow was maintained until the recent past. Those systems imposed massive deprivation, required sustenance from racist ideology, and left a legacy of disadvantage and indignity.

Most obstacles to validating reparations claims can be avoided by shifting our focus: (a) from reparations for wrongs of the distant past to reparations for wrongs that continued under Jim Crow and persist today; and, (b) from limited transfers of property to comprehensive public programs capable of addressing the persisting legacy of slavery and Jim Crow.

Part II gives reasons for regarding current claims as timely rather than concerned only with injustices of the distant past that can no longer be rectified. For two hundred years, the federal government embraced policies that supported slavery and Jim Crow. It endorsed, in effect, a Racial Subjugation Project. At crucial junctures in our history, the government chose not to prevent or repair those wrongs. Although it finally condemned slavery and Jim Crow, it failed on both occasions to address their inequitable consequences - a deeply entrenched, substantial gap between the life prospects of whites and blacks. The federal government is reasonably held accountable for the persisting legacy of those wrongs.

Part III suggests how the legitimate concerns that underlie current reparations claims can be addressed by a National Rectification Project, grounded upon public policies at the federal level. It also suggests how such a project can be justified by uncontroversial principles of political morality that are central to avowed public policy. Our society places great emphasis on individual responsibility and competition. Fair competition requires equal opportunity. This is particularly true for children who will have little opportunity to develop into adults capable of competing and taking individual responsibility if they are not provided with good housing, strong communities, and a healthy physical environment. The federal government has an obligation to rectify wrongs in which it has been significantly complicit and therefore is morally obligated to undo past policies that have ensured a lack of equal opportunity for children. A comprehensive set of programs dedicated to ensuring this opportunity would address most if not all of the legitimate concerns manifested by reparations claims.

As this paper regards the federal government's support for slavery and Jim Crow as part of a continuing history of wrongs, it refers to the morally required rectification not as reparations, which are usually thought of as addressing past wrongs, but under the broader heading of corrective justice. Although corrective justice is sometimes understood as restoring a condition that existed prior to the wrong, such an understanding is not appropriate here. For a brief historical period, the initial wrongs of slavery might have been rectified by freeing, compensating, and returning enslaved Africans to their homes. That time has long since passed. Those Africans who were forcibly brought here and their descendants became founding members of American society. Corrective justice now requires addressing the legitimate claims of African Americans.

. . .

II. The Role of the Federal Government

We normally assume that a government can retain a morally relevant identity for a very substantial period of time, that its acts and practices are subject to moral appraisal, and that it can be held accountable for its past acts. Governments have often accepted accountability for their prior acts and have paid reparations even after significant changes have been made in their character, personnel, laws, and policies. Thus, the United States government has accepted accountability for the Tuskegee syphilis experiment and the World War II internment of Japanese Americans, and it has paid reparations accordingly. I shall assume here that the federal government can be regarded as an accountable party in such matters, and in this section I will explain why it is reasonable to hold the federal government accountable for the life-prospects gap between blacks and whites.

The story is briefly this: Just as the North American system of chattel slavery had not been imposed by the British government on its colonies but was constructed and color-coded by the colonies themselves, at crucial junctures in its history (from its founding through the twentieth century) the federal government found itself obliged, time and again, to confront the question of racial equality. Its overall responses - its resulting policies and practices - have been gravely deficient.

I do not mean merely that we can now, in retrospect, imagine different directions that might conceivably have been taken. Alternatives were understood well enough by those who made the relevant decisions. Alternative outcomes would have been difficult to achieve, in part because the interests of those who would be adversely affected by the decisions (African Americans most directly) were not represented by those who made them (the colonial elite, the founders of the republic, et al.). That does not refute my point about accountability. To see this, it may help to consider the history that is reviewed below in the light of a more recent case. By the time of the 1942 Wannsee conference in Nazi Germany, it had been decided to exterminate Jews, Roma, and others. The conference participants understood the alternative well enough, and the road taken was not unavoidable in a way that excludes them (and others) from responsibility for genocide. In a parallel way, the federal government is morally accountable for its support of a deeply entrenched racial hierarchy and its failure to repair the consequences of slavery and Jim Crow.

A. The Eighteenth Century

The traditional story of the constitutional framing is that, in order to achieve a settlement that would secure a viable union of the newly independent states under a capable central government, it was necessary for the North to compromise its anti-slavery principles. An interesting aspect of the story is that, as early as 1787, anti-slavery sentiment was perceived as a threat by Southern states. Anti-slavery arguments had in fact been circulating in the colonies since 1700 and had spread increasingly as the European Enlightenment influenced colonial thinking. During the War for Independence, European allies of the rebels had pointedly noted the inconsistency between the colonials' human rights rhetoric and their maintenance of chattel slavery. By the time of the constitutional convention, three Northern states had abolished slavery, three had enacted gradual emancipation statutes, and three others were about to follow, as would three of the states that were soon to be carved out of the Northwest Territory. Anti- slavery sentiment was significant in the Upper South, especially Virginia and Maryland.

The traditional story assumes that anti-slavery sentiment was adequately represented by Northern delegates to the constitutional convention. However, the delegates who attacked slavery, such as Gouverneur Morris of Pennsylvania and George Mason of Virginia, were vastly outnumbered. Northern delegates largely represented commercial interests, who derived profits from the slave system and exerted no significant pressure against slavery. Delegates from New England almost always voted with the Lower South (especially Georgia and South Carolina) when it sought protections for slavery. The possibility of abolition was, however, not beyond the ken of the convention delegates.

Furthermore, it is unclear that all of the constitutional supports for slavery were needed for an agreement among the states. The Lower South was not in the best position to wrest concessions through hard bargaining. Georgia and South Carolina wanted a central government strong enough to aid them against powerful Native American nations, and Georgia was concerned about its southern border with Spanish Florida. Although the representatives from the Northern states could have pressed the slavery issue, the convention agreed without great difficulty to provisions that supported slavery - a fugitive slave clause, a bar (for at least twenty years) against interference with the slave trade, and added representation for states with substantial numbers of slaves. If Northern delegates had actually represented anti-slavery sentiment, the slave states might have agreed to a constitution that tolerated but did not so vigorously support slavery. The federal government instead became committed in law and policy to that institution.

B. The Nineteenth Century

The next crucial set of federal decisions concerning slavery and its legacy were made at the end of the Civil War. Andrew Johnson supported the maintenance of a racial hierarchy. Over his veto, and for a decade thereafter, Congress endorsed civil rights legislation and aid to poor whites and blacks through the Freedman's Bureau. It laid down requirements for new state constitutions, including universal male suffrage and acceptance of the Fourteenth Amendment, and it mandated equal access to public accommodations.

But the federal government's commitment to reconstruction soon faded. After the Hayes-Tilden agreement of 1877, federal troops were withdrawn from Southern capitals and federal supervision of Southern elections ended. Supreme Court decisions undermined the civil rights acts and the Fourteenth Amendment. Even more crucial, however, was the federal government's failure to endorse a redistribution of Southern land, which was needed to secure economic independence for the freedmen, end the planters' control of Southern society, and make democratic reform possible.

Freedmen recognized their own just claims for land and agitated for a modest allotment. Their proposals were supported by some poor Southern whites, by some agents of the Freemen's Bureau, and by some political leaders. During and immediately after the war, some land was given to them, but most of that land was soon restored to its former owners or sold to others. Most significantly, Congress rejected Thaddeus Stevens' proposal for confiscation and redistribution.

The First Reconstruction was thus aborted. Over the next generation, through force, fraud, terror, and various legal devices, blacks were driven from political participation. Neglecting its responsibilities under the amended Constitution, the federal government declined to intervene. Most freedmen became sharecroppers on land that had been restored to its original owners. To secure racial subordination, lynching became increasingly frequent (up to three a week during the 1890s). No longer valuable private property, blacks could be killed with impunity. White supremacy was thus violently re-established and, during the most intense period of lynching, Jim Crow was sanctified by the Supreme Court's 1896 decision in Plessy v. Ferguson. Anti-lynching legislation, frequently proposed, never survived in Congress. The United States had officially committed itself to civil and political rights for blacks, but it failed to enforce those rights. It made a promise that it did not keep. African Americans were betrayed, and a brutal white supremacist regime was allowed to replace chattel slavery.
C. The Twentieth Century

The Jim Crow system survived into the second half of the twentieth century. Following the Supreme Court's decision in Brown v. Board of Education, the federal judiciary began systematic enforcement of blacks' constitutional rights. Congress enacted significant civil rights legislation, including the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Fair Housing Act of 1968, and the Equal Employment Opportunity Act of 1972.

During this period, acknowledgment of widespread poverty in the United States led to a "War on Poverty," including a number of programs funded all or in part by the federal government, such as food stamps, Medicare (for the elderly and disabled), Medicaid (for poor children and some adults), Supplemental Security Income (serving needy aged, disabled, and blind), the Comprehensive Employment and Training Act of 1973 (subsidizing low wage jobs in non-profit and public settings), and Head Start (preschool program for disadvantaged children), and some existing programs were expanded, such as Aid to Families with Dependent Children ("welfare"). Because of African Americans' disproportionate share of economic disadvantages, such programs are relevant here.

The Second Reconstruction, like the first, secured important changes in public policy. Racist ideology was officially rejected. Openly racist appeals became unacceptable for mainstream political candidates and explicitly racist comments were banished from public policy statements. Anti-discrimination laws were once again enacted, but this time the courts upheld their enforcement. Opportunities became available for blacks in politics, education, skilled trades, and the professions. Overt discrimination and anti-black violence were reduced. Unlike the public policy changes of the First Reconstruction, those of the Second have come to seem irreversible.
Once again, however, federal commitment to many of the reconstruction programs soon faded. By the early 1980s, government policy had reduced interventions on behalf of blacks and government assistance was reduced. Nutritional, educational, medical, employment, and housing programs that were developed in the 1960s faced cutbacks, which were severe by the 1980s and are worse today. The real benefits of Medicare and Medicaid have been reduced. New construction of affordable public housing has virtually ceased. Federal subsidies for low-income families to rent private housing have decreased. CETA programs have ended. Eligibility for food stamps has been restricted. AFDC has been terminated; its replacement, Temporary Assistance to Needy Families, sets lifetime limits on receipt of aid, requires more work from mothers of young children, and denies four-year college study as a means to improved employment. Despite increased work requirements, the government has failed to provide for adequate child day care.

More importantly, the adopted measures failed to address the deep, systemic inequity left by slavery and Jim Crow. African Americans entered the Second Reconstruction with life prospects substantially lower than that of their white counterparts. Since then, conditions have in some respects improved, but a substantial gap continues. As of 1996, for example, life expectancy was 76.8 years for whites and 70.2 years for blacks. Blacks had significantly inferior access to health care. Blacks experience significant disadvantages in the labor market. In 1994, for example, the unemployment rates for blacks and whites were 12.0% and 5.4% respectively. More significantly, in 1994 the median net worth of whites and blacks was $52,944 and $6,127 respectively, and the median net financial assets of whites and blacks were $7,400 and $100 respectively. At every income level, blacks' net worth is a fraction of whites'. At most income levels, blacks' financial resources - funds available in case of lay-offs, serious illness, and other emergencies - are substantially less: zero or negative. Twenty-five percent of white households lack such financial resources, but sixty-one percent of black households are in that potentially disastrous predicament.

As equity in private housing constitutes the main component of wealth for most American families and the wealth gap appears crucial to the perpetuation of the black-white life prospects gap, public policies affecting the acquisition and appreciation of housing are of special importance here. Prior to the Second Reconstruction, employment discrimination was not merely tolerated but was practiced by government at all levels. Such discrimination generated a black-white income gap, which affected African Americans' ability to purchase homes. Other government policies, however, have greatly promoted home acquisition by whites while inhibiting it for African Americans. Many of those policies promoted residential segregation.

The black urban ghetto was created by the migration of blacks to urban areas and periodic housing shortages that resulted from exclusionary actions by private parties and policies of local officials and federal agencies. One such policy was "redlining," which identified black neighborhoods within which home purchase and home improvement loans were denied or interest rates inflated. Redlining was embraced by federal agencies, such as the Home Owners Loan Corporation, the Federal Housing Administration, and the Veterans Administration. Federally supported "slum clearance" programs intensified ghetto conditions. Many public housing projects, typically high-density, were located within or adjacent to existing ghettos. As the projects accommodated fewer ghetto dwellers than slum clearance displaced, more pressure was placed upon housing in the ghetto. Public housing authorities employed segregation policies that further promoted black isolation. When the federal courts ordered the housing authorities to reform, funding for public housing was halted. Congress enacted a Fair Housing Act in 1968, but only after it was stripped of enforcement provisions. When such provisions were added by the Fair Housing Amendment Act of 1988, the federal government declined to enforce them vigorously.

Blockbusting and "white flight" can occur only when some communities are maintained as white domains. Federal and local governments funded and constructed new highways to serve white suburbs. When overt housing discrimination was prohibited, realtors developed covert measures to divert black renters and home buyers from white communities. Such unlawful practices can be identified, but because of law and federal policy, private, non-profit organizations have had the burden of combating them. Their "audits" of such practices have been effective, but their number was substantially reduced with the end of CETA, which had supported a variety of community-based anti-poverty jobs.

By 1940, the isolation of blacks within segregated urban communities was greater than had ever been experienced by any other ethnic group in America. Following World War II, as white suburbs expanded and African Americans of all income levels were excluded from white domains, urban black ghettos increased in size and density, giving rise to a degree of uniquely concentrated isolation that sociologists have dubbed "hyper-segregation." Hyper-segregation persists partly because of the continuing exclusion of blacks from white communities, partly because federal fair housing legislation has not significantly been enforced, and partly because public policies can adversely affect an established black ghetto without hurting a significant number of whites.

Poverty in the United States is most concentrated in the black urban ghetto. Social contacts with whites are minimized by the isolation of the ghetto, as are job opportunities and access to business networking opportunities. Most importantly, residential segregation promotes the black-white wealth gap. Public policies such as redlining have reduced the opportunity for blacks to acquire, maintain, and improve homes. African Americans who could afford the higher interest rates they were charged on housing loans have paid more than whites for homes of similar value, which has reduced their available financial resources. In periods of economic hardship, such as the 1930s and 1970s, "demand density" dropped dramatically in the ghetto, commercial outlets and services withdrew, buildings fell into disrepair and were abandoned, and crime and disorder increased. These conditions caused housing values to appreciate at a lower rate in black than in white communities, adversely affecting blacks' net worth and their ability to borrow in order to invest in educational and business opportunities.

The effects are transgenerational and profound. "Nearly three-quarters of all black children, 1.8 times the rate for whites, grow up in households possessing no financial assets. Nine in ten black children come of age in households that lack sufficient financial reserves to endure three months [without income, even at the poverty line], about four times the rate for whites." The life prospects of children depend more on parents' wealth than on their income. "Asset poverty is passed on from one generation to the next, no matter how much occupational attainment or mobility blacks achieve." As a result of the wealth gap, there is, between one generation and the next, both more downward mobility and less upward mobility for blacks than for whites. The policies that have promoted hyper-segregation have thus intensified the legacy of slavery and Jim Crow, and the results are not being challenged by public policies.

The foregoing review includes an incomplete but relevant description of the federal government's role relative to African Americans. The government's policies supported both slavery and Jim Crow. Since 1865, the government has violated or failed to enforce its own Constitution and legislative enactments for extended periods. In accepting violations of its own basic law, the federal government allowed the racial caste system to be reconfigured so that it could survive the abolition of slavery. It thereby enabled the entrenchment of inequities for African Americans in a new system - Jim Crow. It tolerated gross misconduct by officials, frequent public lynchings, rape, harassment, terror, and coercion - in other words, widespread, grievous violations of African Americans' most fundamental rights. Given the opportunity, it has more than once declined to undertake measures necessary to substantially rectify the long-standing inequities. Of course, this pattern does not fully describe public policy; but it has dominated public policy since the United States was established.

The federal government has thus been party to and partly responsible for the wrongs done to African Americans. It is the single most important currently existing party that can truly be held accountable to those who have suffered the wrongs of racial subjugation. The federal government is, furthermore, an appropriate recipient of moral demands for corrective justice because of the nature, scope, and magnitude of the inequities that remain to be addressed.

[1]. Professor of Law, Law Alumni Scholar, and Professor of Philosophy, Boston University.


Transatlantic Slave Trade
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Laws related to Slavery
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Civil War and Reconstruction
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13th Amendment
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Legal Apartheid (Jim Crow)
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Civil Rights Era
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Racial reentrenchment
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