Wednesday, June 20, 2018

H. The Modern Slave Reparations Movement

Plaintiffs' Second Consolidated and Amended Complaint falls within the broader context of a present and ongoing social and political movement for slave reparations in America. In order to properly place this suit within the context of that movement, the court offers a brief analysis of recent efforts undertaken by various groups to gain reparations for the historic injustices of slavery.


1. A Definition of “Reparations”

A complete definition of the term “reparations” will answer, at least, the following questions. What political, moral, or legal justification is there for the assertion that descendants of slaves are owed some sort of reparations? What are the arguments against reparations? Assuming reparations are justified, what form should these reparations take? Which specific individuals or groups will pay these reparations? To which specific individuals or groups will these reparations be paid?

In general, reparations advocates argue that reparations are justified because America itself owes a debt to the descendants of slaves. America owes this debt, advocates assert, simply because the slaves themselves were never paid for their labor. “[B]lack people worked long, hard, killing days, years, centuries—and they were never paid .... There is a debt here.” Randall Robinson, The Debt: What America Owes to Blacks 207 (2000). In other words, the basic moral principle of fairness, and the fundamental legal principle that parties must repay their debts, justifies reparations. “[B]elief in the fairness of reparations requires at the intellectual level acceptance of the principle that the victims of unjust enrichment should be compensated. Under reparations, Blacks more readily may position themselves as creditors seeking payment of an overdue debt, rather than as racial supplicants seeking an undeserved preference.” Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?, 40 B.C. L.Rev. 429, 436 (1998).

Other advocates argue that reparations are justified as a way to “repair a country by creating a sense of mutual, interracial trust, respect, and shared destiny.” Note, Bridging the Color Line: The Power of African–American Reparations to Redirect America's Future, 115 Harv. L.Rev.. 1689, 1689–90 (2002) (hereinafter, “Note”). Still others argue that reparations for descendants of slaves are justified because other groups that have suffered historical harms have been able to obtain reparations. See Alfred L. Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. Ann. Surv. Am. L.. 497, 499 (2003) (hereinafter “Conceptual and Legal Problems ”) (noting that “Native Americans, Holocaust victims, [and] Japanese Americans interned during World War II” have obtained reparations).

However, opponents of slave reparations identify a number of reasons, they assert, that reparations are unjust or unwise. Alfred L. Brophy, The Cultural War over Reparations for Slavery, 53 DePaul L.Rev. 1181, 1201–02 (2004) (hereinafter “Cultural War ”); see also David Horowitz, Uncivil Wars: The Controversy over Reparations for Slavery 12–16 (2002) (identifying ten separate arguments against reparations). The court will briefly summarize what seem to be the most cogent of these arguments. Some assert that there is no genuine moral or legal liability on the part of those who are currently asked to pay the reparations. Cultural War, supra, at 1202–06. This argument focuses on the fundamental notion that “one should be liable only for the harms one causes....” Id. at 1202. Since today's Americans do not hold slaves, the argument goes, today's Americans are not morally or legally liable for the evils of slavery. Id. Others argue that the reparations asked for have, in fact, already been paid.

Since the passage of the Civil Rights Act and the advent of the Great Society in 1965, trillions of dollars in transfer payments have been made to African–Americans in the form of welfare benefits and racial preferences (in contracts, job placements and educational admissions).... It is said that reparations are necessary to achieve a healing between African–Americans and other Americans. If trillion-dollar restitutions and a wholesale rewriting of American law (in order to accommodate racial preferences) is not enough to achieve a “healing,” what is?

Horowitz, supra, at 14; see also Chicago, Ill., Ordinance 2–92–420 et seq. (providing that “Minority-owned business[es],” including those businesses owned by African–Americans, are to receive at least twenty-five percent of the dollar value of any contract, purchase order, or agreement awarded by the City of Chicago). Some also argue that the Civil War itself was payment, in blood and human lives, for slavery. Cultural War, supra, at 1208; see also Horowitz, supra, at 15 (“If not for the sacrifices of white soldiers and a white American president who gave his life to sign the Emancipation Proclamation, blacks in America would still be slaves”). Finally, a common argument made against reparations is that reparations talk is divisive, and continues to enmesh African–Americans in a culture of victimhood. Cultural War, supra, at 1209–10 (“[talk of reparations] makes blacks think that whites as a group are their oppressors; it makes whites who have no responsibility for the sins of the past feel like oppressors and plays on feelings of guilt”).

Advocates of reparations differ in their assessments of exactly what form reparations ought to take. Some reparations advocates assert that reparations should start with a formal apology from America, as well as the establishment of “truth commissions” to investigate the complicity of various groups or organizations in slavery. Cultural War, supra, at 1185–1189; see also Chicago, Ill., Ordinance 2–92–585 (requiring parties entering into contracts with the city to search company records, and provide “full and accurate disclosure to the public about any slavery policies sold by any companies, or profits from slavery by other industries (or their predecessors) who are doing business with the city”); S. Res. 39, 109th Cong. (2005) (formally apologizing for the Senate's failure to enact anti-lynching legislation, and expressing sympathy to the descendants of victims of lynching). Apologies, “truth commissions,” and local ordinances requiring companies to disclose ties to slavery, are thought by some to be a first step along the road to full reparations. “By preparing people to understand the nature of the harm and why reparations are needed, they are a way of making the claim before the public.” Cultural War, supra, at 1188.

Most commonly, however, the term “reparations” simply means some sort of financial compensation for descendants of slaves. Some reparations advocates have proposed that reparations take the form of a “trust ... established for the benefit of all Black Americans.” Westley, supra, at 470; see also Robinson, supra, at 244–45. This trust “should be financed by funds drawn annually from the general revenue of the United States,” and the funds would “be expendable on any project or pursuit aimed at the educational and economic empowerment” of African–Americans. Westley, supra, at 470. Specifically, advocates of reparations assert that trust funds should be used to finance the creation of special schools for black children found to be “at risk in unhealthy family and neighborhood environments.” Robinson, supra, at 244–45. These funds could also be used to finance the work of black political and advocacy groups. Id. at 245–46. Other reparations advocates propose that reparations take “the form of subsidies to black-owned businesses, investment in education programs and scholarships for black youths, training programs for black workers, affirmative action programs, resources for community-based organizations in predominantly black communities, and development and implementation of programs designed to educate the country about the legacy of slavery.” Note, supra, at 1690.

The reparations movement has thus moved towards the notion that reparations should be directed towards certain groups of people, rather than specific individuals. “Pro-reparation positions more readily see harm to entire groups and want to repair that economic and psychological harm.” Conceptual and Legal Problems, supra, at 509; see also Robinson, supra, at 244–46 (advocating group reparations). The group entitled to receive reparations would obviously consist of descendants of slaves, and determining exactly who is and is not a member of this group could be done in a number of different ways. See Kevin Hopkins, Forgive U.S. Our Debts? Righting the Wrongs of Slavery, 89 Geo. L.J. 2531, 2542 (2001) (proposing that genealogical research, blood testing, or genetic mapping could be used to determine whether one is a legitimate descendant of slaves).

However, there may well be no perfect method of determining exactly who is a descendant of a slave, and thus a member of the group entitled to receive reparations. See id. at 2542–2547. Genealogical research “often fails to provide significant information about a person's ancestry.” Id. at 2543. The blood, or “one-drop,” test (whereby anyone with any trace of African ancestry is deemed part of the group entitled to receive reparations) “fails to differentiate between descendants of U.S. slaves and those of other nationalities with African heritage....” Id. at 2544. Genetic mapping, or DNA testing, is more promising than the above two methods, but *734 “alone is insufficient to provide a decisive link to a homeland....” Id. at 2547.

The question of who ought to pay the reparations is also complex. The value of slaves' unpaid labor, reparations advocates argue, was scattered amongst numerous entities: “plantation owners, northern entrepreneurs, state treasuries, the United States government.” Robinson, supra, at 207. In the case presently before the court, the Plaintiffs have chosen to bring suit against private entities, the corporations who allegedly held slaves, and their successors in interest. For example, the first named Defendant is FleetBoston Corporation, which Plaintiffs allege is a successor in interest to Providence Bank, which allegedly financed and profited from the slave trade. SCAC, ¶¶ 116–126. Many reparations advocates, however, focus their attention on the United States government as the proper party to pay reparations. See Note, supra, at 1700 (“Reparations are not intended to hold individual Americans living today morally responsible for the acts of their forefathers, but rather to insist that the country apologize for its wrongful acts and take the necessary steps to bridge the racial divide and to alleviate the economic and social disparities that resulted from those acts.”); see also Hopkins, supra, at 2551–52 (advocating that the United States government pay these reparations).

The following general definition of slave “reparations” thus emerges. “[R]eparations mean truth commissions that document the history of racial crimes and the current liability for those crimes, apologies that acknowledge liability, and payments to settle the account.”Cultural War, supra, at 1190. These payments may be made in the form of a trust, with the descendants of slaves named as trust beneficiaries, or other forms of subsidies given to the descendants, and could be made by private entities who have allegedly profited from slavery (as the plaintiffs in the instant suit urge). The reparations movement more commonly insists, however, that the United States government should make these payments. Reparations are justified, advocates argue, on several grounds, including that of an alleged moral and legal debt owed to descendants of slaves, and the historical precedents of reparations for the victims of other historical injustices. However, there are a number of cogent arguments against reparations, including the arguments that present day Americans are not morally or legally liable for historical injustices, that the debt to African–Americans has already been paid, and that reparations talk is divisive, immersing African–Americans in a culture of victimhood.


2. Previous Attempts at Slave Reparations

Reparations advocates identify five different time periods during which reparations for slavery were seriously discussed in one form or another. See Vincene Verdun, If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 Tul. L.Rev.. 597, 600 (1993). First, during and immediately after the Civil War, both Congress and President Lincoln attempted to confiscate property from former slaveowners, and to redistribute that land to former slaves. Id. at 600–01. These attempts ultimately failed in 1865, when President Johnson ordered that lands be returned to their “pre-Civil War owners.” Id. at 602.

The second period of attempts at slave reparations, occurring near the turn of the century, included attempts to establish pension funds for former slaves. Id. at 602–03. The third attempt at reparations, occurring during World War II, was not a proposal to pay African–Americans a sum of money; the proposal was rather to “provid[e] for the migration and colonization of negroes to newly acquired territories.” Id. at 603. The fourth period of attempts at reparations coincided with the civil rights movement of the 1960's. Id. Various black activists such as James Forman, Audley Moore, and Dr. Martin Luther King, Jr., demanded, or in some cases, hinted at, slave reparations for African–Americans. Id. at 603–05. For example, in his celebrated “I Have a Dream” speech, Dr. King asserted that “America has given the Negro people a bad check, which has come back marked ‘insufficient funds.’ ” Id. at 604.

Finally, the fifth, and current period of attempts at slave reparations began with the Civil Liberties Act of 1988. Id. at 605–06. This Act provided $20,000, and a formal apology from the United States government to Japanese–Americans who were interned during World War II. Pub.L. No. 100–383, 102 Stat. 903 (1988); see also Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (upholding the constitutionality of military and executive orders issued during World War II which excluded individuals of Japanese descent from the West Coast, and provided for the detention of those individuals in “assembly or relocation centers”). Seizing on what appeared to be Congress' willingness to right the wrongs of history, reparations activists began their efforts anew. Numerous grassroots organizations formed to advocate slave reparations. Verdun, supra, at 606 nn. 26–27. In 1989, U.S. Representative John Conyers introduced a bill that would have established a commission to study the effects of slavery on present day African–Americans, and to study whether reparations would be appropriate. H.R. 3745, 101st Cong. (1989). The preamble to Conyers' proposed legislation stated that its intent was

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, subsequent de jure and de facto racial and economic discrimination against African Americans, and the impact of these forces on living African Americans, [and] to make recommendations to the Congress on appropriate remedies, and for other purposes. Id. Conyers has introduced similar legislation to each Congress since 1989, but none of these bills has made it out of committee. See, e.g., H.R. 40, 108th Cong. (2003), H.R. 40, 107th Cong. (2001).


3. The Legislature as the Proper Forum to Achieve Slave Reparations

Despite Representative Conyers' lack of success before Congress, some reparations activists today still assert that the legislature, rather than the courts, is the best forum in which to introduce their claims. See, Westley, supra, at 436 (“It is Congress, and perhaps the legislatures of the former slave states, that must be persuaded to enact reparations”); Note, supra, at 1704 (“There are concrete benefits of working in the legislative branch rather than the judicial branch”). Activists acknowledge that there are significant problems involved with bringing the issue of reparations for slavery before a court of law.

The specific problem with bringing this issue before a court is that courts are equipped for, and charged with the responsibility of, “dealing with claims by well-identified victims against well-identified wrongdoers....” See Conceptual and Legal Problems, supra, at 502. Claims asserting harms against groups of long dead victims, perpetrated by groups of long dead wrongdoers, are particularly difficult to bring in modern American courts of law. “First, the victims are making claims against people who are not themselves *736 wrongdoers. Furthermore, that defendant class may not have any current benefit from the harm.... Often the perpetrators cannot be identified with specificity or are no longer alive.” Id. at 503. For these reasons, plaintiffs in reparations suits will inevitably face the conceptual problems of standing and statutes of limitations. Westley, supra, at 435. However, reparations advocates who bring their claims before legislatures face no such problems. “[L]egislatures may hold hearings, make findings, and pass resolutions or laws on any matter affecting the public interest and within the scope of constitutional power. Substantively, legislatures provide a friendlier forum than courts for racial remedies.” Id.

In addition to reparations offered to Japanese individuals interred during World War II, at least one state legislature has passed a bill authorizing reparations for past racial injustices. See C. Jeanne Bassett, House Bill 591: Florida Compensates Rosewood Victims and Their Families for a Seventy–One–Year–Old Injury, 22 Fla. St. U.L.Rev. 503 (1994). In January 1923, the small town of Rosewood, Florida, inhabited entirely by African–Americans, was burned to the ground by a group of whites after a white woman claimed she had been raped by an African–American man. Id. at 505–07. In addition, at least eight African–Americans were murdered. Id.; see also Martha Minow, Not Only for Myself: Identity, Politics, and Law, 75 Or. L.Rev. 647, 679 (1996). In 1994, Florida passed House Bill 591, which authorized compensation for the victims of this massacre, and their direct descendants. Bassett, supra, at 517–18. The compensation included up to $150,000 for each survivor, and college scholarships for their descendants. Id.

Legislatures, both federal and state, are thus sometimes inclined to award compensation to victims of historical injustices. See Pub.L. No. 100–383, 102 Stat. 903 (1988) (awarding compensation to Japanese individuals interred during World War II); see also Bassett, supra, (describing how the Florida legislature awarded compensation to victims and descendants of victims of the 1923 Rosewood, Florida massacre). Courts of law, however, are constrained by judicial doctrine and precedent, including concepts of standing, statutes of limitations, and the political question doctrine. Legislatures, both state and federal, face no such conceptual and doctrinal constraints. For that reason, advocates of slave reparations may resolve to bring their concerns and demands to the legislative and executive branches of the government, rather than the adjudicative and adversarial judicial branch.


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