Excerpted from: Vincene Verdun, "If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans", 67 Tulane Law Review 597-698, 612-639 (February, 1993)
(cites omitted)(Permission Requested).
A precursor to any relevant discussion . . . is the acceptance that race is a factor in the development of a dominant culture and an African-American culture. Furthermore, the values and norms that define those cultures result in a dominant perspective and an African-American consciousness that can affect the analysis of an issue. The civil rights movement, and the pervasive liberal ideology of equal opportunity and integration that grew out of it, established new notions of a colorblind society and of the declining significance of race. Ironically, considering its origins, the colorblind ideology has done more to thwart the integrationist ideal than to promote it. Ignoring or even downplaying the significance of race in a system that discriminated against a group of people based on its race for hundreds of years-a system that left that group in a politically, economically, and socially disadvantaged state-threatens affirmative action plans and efforts. Liberals and progressives rejected race consciousness on the part of blacks or whites because of its perceived conflict with the ideal of integrationism. [The theory of reparations for African Americans]. . . bears the brunt of that rejection since it is based on the premise that a people who share a common heritage and living experience establish a common perspective or consciousness that can have a profound impact on how they analyze an issue-in this case reparations to African Americans. . .
Even if one strongly disagrees about the survival of African culture and its effect on the consciousness of African Americans, common sense suggests that groups of people systematically segregated from each other will develop distinctive cultures over time. When the effects of and reaction to slavery and discrimination are added to systematic segregation, the grounds for this intuitive belief become even stronger.. . .
A. The Dominant Perspective
Individualism and self-determination are values in the dominant society that most significantly affect the analysis of reparations to African Americans. Robert Staples describes the value orientations of white Americans on individualism as follows:
In human society each individual must make his own mark through competition for the prestige goals of his culture. The rewards of his victory in the competition are his alone, to be shared only with certain prescribed people (e.g., wife, children) over whom he has control. Those who have not achieved success or are without sufficient resources have only themselves to blame because of their inability to compete. The dominant group perceives that each individual is responsible for his or her own behavior. . .
. . . . The value placed on individualism is so entrenched in the dominant perspective that it cannot yield to foreign concepts like group entitlement or group wrongs. Opponents of reparations to African Americans analyze the merits of the remedy from this dominant perspective with its focus on individualism, thereby contributing to the opponents' conclusion that the idea of reparations to African Americans is absurd, frivolous, or unworthy of serious consideration.
B. The African-American Consciousness
In stark contrast with the dominant perspective of individualism, African- American consciousness emphasizes the significance of group identification. Robert Staples describes the perception of African Americans on group orientation as follows:
"The concept of the individual is usually subordinate to a group orientation. It is the group that is important and the Black self is an incorporated part of the social group. Cooperation through collective efforts is the accepted means of achieving culturally prescribed goals.. . . The African ideals of collectivism and communalism were so strongly entrenched in the psyche of the young adults who were part of the slave trade, and the slave society was so isolated from the dominant society, that these general values sustained the generations. African values were reinforced among the slaves as the slave trade continued and African slave immigrants were interspersed with slaves with a longer tenure on the American continent."
Perhaps the best evidence that African Americans have accepted values of communalism and collectivism, whether or not the source of those values is found in the African culture, is through the demonstrative experiences of African Americans. An example of how African Americans identify with communalism, as compared with individualism, is found in the treatment of success and responsibility. An African American who succeeds owes that success to the efforts of the many in addition to the individual effort. Not only is there the common sharing of glory with parents and relatives who contributed to an individual's progress (a type of sharing that is also a part of the dominant group culture), but also African Americans acknowledge the civil rights activists and the African-American community that paved the way for the individual's success. That the community assumes some credit for the success of the individual is further evidenced by the communities' expectation that the successful member make a contribution or give something back to the community failure to do so may result in that successful individual losing the respect of the community.
Young, successful African Americans frequently experience the sense of their communities' pride in their achievements. When an older African-American man approaches a new law school graduate whom the elder person does not know and ingenuously says to that young person, "I am proud of you," there must be a source of that pride. Since the relationship is not one of friendship or kinship through blood, the source of that pride can only be explained by kinship through race-a kinship that is strengthened by the common struggle among African Americans. The sense of communalism among African Americans allows one to take pride in the accomplishments of the other based on no other commonality than the race of the individual. Mari Matsuda describes the kinship wrought out of common struggles:
Victims necessarily think of themselves as a group, because they are treated and survive as a group. The wealthy black person still comes up against the color line. The educated Japanese still comes up against the assumption of Asian inferiority. The wrongs of the past cut into the heart of the privileged as well as the suffering. Whether through common suffering or the survival of cultural norms birthed in Africa, the values of collectivism and communalism are a part of the African- American consciousness that affects the perspective and analysis of African Americans on the issue of reparations. That consciousness leads the reparationist to the conclusion that the debt owed to African Americans for the injuries endured during slavery and over one hundred years of systematic discrimination is obvious and justified and that the refusal to pay is a further perpetuation of the injury.
C. Comparative Analysis of Reparations from the Dominant Perspective and the African-American Consciousness
Opponents of reparations to African Americans argue that living whites have not injured living African Americans; the wrongs of slavery were committed by individuals who have been dead for years. African Americans living today were never slaves and are not entitled to wages for slave labor performed over one hundred years ago. Furthermore, if systematic discrimination experienced in the lifetime of living African Americans is counterproposed as a basis for reparations, opponents minimize the prevalence and impact of racism in this country and argue that any individual guilty of racism should be prosecuted under existing antidiscrimination laws. When reparations to Native Americans or internees of Japanese ancestry are cited as precedents for reparations to African Americans, opponents distinguish these cases based on practical considerations such as the absence of seizure of land belonging to African Americans or the difficulty of determining who should be eligible to receive relief. Finally, reparations are opposed for a number of practical reasons, including economic feasibility. Positions like these have even convinced some supporters of reparations that there is no legal case for reparations and that any relief must be founded on moral obligations. The dominant perspective of individualism forms one of the foundations in every argument that opposes reparations. In this section each proposed basis for reparations to African Americans will be analyzed from the dominant perspective and from the African-American consciousness to afford a comparison of the outcomes.
1. The Reparationists' Claim for Unpaid Slave Wages or Compensation for Injustices Suffered During Slavery
The dominant perspective limits the liability of an individual to compensation for injuries that can be identified as having been committed by that individual. It also requires that the recipient of compensation suffer an injury caused by that individual. Accordingly, the opponents of compensatory damages to African Americans arising out of lost wages or injustices suffered during slavery argue that no slave owners can be identified to pay the debt because they are all dead. Furthermore, even if it were possible to trace the benefits of slave labor to living individuals through inheritance of wealth, it would be impossible to identify the descendants of the slaves that generated such benefits and match them with the heirs. From the dominant perspective, it would be patently unfair to make all white people or society pay for slavery because that would necessarily include people who did not participate in the wrong. These people include whites who are descendants of abolitionists and nonslaveholders, and immigrants, or descendants of immigrants, who came to this country after slavery was abolished; post slavery immigrants cannot be connected with a wrong associated with slavery.
A claim for compensation based on slavery, when interpreted from the dominant perspective, would imply that all African Americans were injured by slavery and that all white Americans caused the injury or benefitted from the spoils of slave labor. These implications are offensive to anyone whose perception of justice is derived from the dominant perspective because liability and right to compensation are based on race rather than the commission of an injurious act. For many, the establishment of rights and liabilities based on race is not only unjust, it is also immoral. Opponents to reparations, who usually assume the dominant perspective with its focus on individualism, would construe the imposition of liability on non-wrongdoers as illogical and unjust. Thus, the dominant perspective's focus on the individual makes an argument for reparations for slave labor seem imminently rebuttable.
Reparationists, perceiving the claim for compensation for slavery from the African-American consciousness, would identify a continuing and uncompensated wrong to a community. As a result, they would hold the larger community responsible to right the wrong. The uncompensated wrong takes two forms: 1) failure to pay for slave labor and the contribution of slaves to the building of this country and 2) the presumption of inferiority, devaluation of self-esteem, and other emotional injuries, pain, and suffering, that resulted from the institution of slavery.
Unlike opponents to reparations who assume the dominant perspective, reparationists have no trouble linking the wrongs against ancestors to the condition of living descendants. Using the history of Florine Verdun from the prologue as an illustration, reparationists would argue that the parents of Aaron Page, a young slave emancipated when he was nine years old, might have been able to assist Aaron during their lives if the parents had been able to earn a living. They could have purchased a farm, or helped him start a business, or sent him to college-the way that parents typically do. However, because Aaron's parents were not paid, and in fact were separated from him before he was emancipated, Aaron continued to work on the plantation after his emancipation. His only option as an adult was to become a sharecropper, which led his daughter Bessie and her daughter Florine to become sharecropper's daughters. The African-American consciousness allows reparationists to perceive the impact of the injury-the unpaid wages-on the total community, which includes not only Aaron's parents, but his daughter, Bessie, and her daughter, Florine, and Florine's children.
The extent of the injury is magnified when all of the people in the community who came into contact with these descendants of Aaron Page in their impoverished state, and who could have derived greater benefit from their contacts if the descendants had been better off, are included in the calculation. When contacts with all of the descendants of slaves are included in the calculation, reparationists would argue that the entire African-American community-including people who were not the direct descendants of slaves-was affected by the injury. Thus, unlike opponents to reparations, who would need to identify the particular descendants of slaves, reparationists would identify the entire African-American community as the injured party.
The reparationist identifies a second type of injury arising out of slavery: spiritual injuries, such as the presumption of inferiority and the devaluation of self-esteem. The reparationist would argue that these spiritual injuries- the pain and suffering of slavery-have had a significant and lasting impact on the African-American community. Slaves were taught by word and deed that they were subordinate and inferior to whites. Inferiority was used to justify subordination. The belief in the inferiority of African Americans was pervasive in the African-American community and the white community until the civil rights movement of the sixties, when educators, historians, sociologists, and activists began to dispel some of the myths of inferiority. However, the myth of inferiority was so ingrained in the spirits of the slavemaster and slave that it has survived the generations since slavery in the subconscious of Americans; it stands as the staple of racism among whites and self-deprecation among African Americans. As Professor Lawrence stated about the origins and pervasiveness of racism in our society today:
Racism is in large part a product of the unconscious. It is a set of beliefs whereby we irrationally attach significance to something called race. I do not mean to imply that racism does not have its origins in the rational and premeditated acts of those who sought and seek property and power. But racism in America is much more complex than either the conscious conspiracy of the power elite or the simple delusion of a few ignorant bigots. It is a part of our common historical experience and, therefore, a part of our culture. It arises from the assumptions we have learned to make about the world, ourselves, and others as well as from the patterns of our fundamental social activities.
... We attach significance to race even when we are not aware that we are doing so.
... It is a malady that we all share, because we have all been scarred by a common history. Racism's universality makes it normal.
... We must understand that our entire culture is afflicted, and we must take cognizance of psychological theory in order to frame a legal theory that can address that affliction.
Professor Lawrence stated that the origins of racism were in the rational and premeditated acts of those who sought power and that we are all affected by racism because we have been scarred by our common history. Slavery, as an institution supported by the ideology that people were inferior and appropriately subordinated because of their race, would have to be high on the list of premeditated acts that established racism, and is part of the common history that has scarred us all. Although most whites and African Americans would consciously disclaim any notion that African Americans are inferior to whites, subconsciously many decisions, heavily camouflaged in the cloak of meritocracy, are made based on such beliefs. This heritage of inferiority looms in eerie, ghostlike form over African Americans in the workforce, classrooms, markets, and social circles throughout the nation. It is emotional injury, stemming from the badge of inferiority and from the stigma attached to race which marks every African American, that composes the most significant injury of slavery.
The dominant culture is blind to this injury. It is so remote from the experience of most members of the dominant culture that it is beyond their conception. When African Americans identify an act that was motivated by this perception of inferiority, it is perceived by the dominant group either as a kind of paranoia or as an excuse for failure to perform in accordance with the mandates of a meritocracy. It is beyond the scope of this Paper to describe the injury at length or to prove the merits of the injury, but Professor Lawrence does an excellent job of describing the source of unconscious racism and how it manifests itself in the lives of ordinary people. Billy J. Tidwell describes at length the sociopsychological, sociopolitical, and economic costs of racism to American society. Opponents of reparations would have no problem dismissing this injury as baseless, unprovable, and nonexistent. Reparationists who are also African Americans are aware of the injury because of personal battles combatting feelings of inferiority and because of frequent encounters with whites and African Americans which confirm that both are making evaluations based on presumptions of inferiority of African Americans. With the injury identified, reparationists would propose that every African American suffers from the emotional injuries of slavery and therefore deserves compensation.
After identifying the injuries of slavery and the victims as the entire African-American community, the reparationist would still have to contend with the opponents' argument that the wrongdoer cannot be identified or matched with the victim. From the African-American consciousness, the wrongdoer is not limited to some prescribed set of individuals such as slave owners. One reparationist said that "[w]hite Americans are not guilty of practicing slavery and most are not actively engaged in economic discrimination, but most are collectively the beneficiaries of slavery and economic discrimination." The slave owner was joined in his acts against African Americans by a host of others, including the slave traders, merchants and bankers who financed the slave trade, legislators who enacted constitutions and laws to protect the slave owner and to disfranchise the slave of rights, Northern industrialists who purchased the products of slave labor, consumers who purchased the products produced by raw materials provided by slave labor, the people who enjoyed an increased status and standard of living because of the national economic stability generated in part by the institution of slavery, and others who came in contact with those whose lives were so enhanced.
It is easy to see that the list is probably all-inclusive and it is difficult to conceive of the hermit who could escape this broad classification of wrongdoer. African Americans refer to the wrongdoer, much to the offense of individual white people, as "the white man" or "the man" and less often as "the system." Perhaps the more appropriate description of the wrongdoer is society. Society, through all of its consumers, producers, governments, laws, courts, and economic institutions, perpetrated and supported the institution of slavery. Society, propelled by a set of values that were manifested in the laws, allowed the injury to take place and to remain uncompensated for generations. The entire society acquiesced in the institution of slavery. Even abolitionists must admit that they participated in the institution of slavery to the extent that they continued to live in and enjoy the benefits of a society that sanctioned slavery. If abolitionists, the precursor of modern- day white liberals, had decided to move their fortunes elsewhere, had not purchased the products of slave labor, or had taken a stronger stand, slavery could have been eradicated earlier. The global fight against apartheid has demonstrated that the refusal of economic participation in a wrongful institution can result in its undoing.
Because society perpetuated and benefitted from the institution of slavery, all of society must pay. Society, unlike individuals, does not have a natural life. The society that committed the wrong is still thriving. In a sense, reparationists would analogize society to a trustee who holds the corpus of the trust-the benefit society derived from slave labor during slavery and since emancipation-and would view African Americans as the beneficiaries of the trust who are entitled to trace the assets of the trust in whatever form they can be found. Treating society as the wrongdoer necessarily includes the injured parties in the classification of wrongdoer. If society pays, it will do so at least in part with tax dollars, and African Americans pay taxes. There is a ring of propriety in having African Americans share in the benefits and burdens. Opponents of reparations are quick to point out that Africans participated in the slave trade and African Americans owned slaves. The truth in these statements cannot be rebutted. Vincent Verdun, from the prologue, is an injured party, because he was deprived of his rightful inheritance because his great-great-great grandmother was a slave. On the other hand, his great- great-great grandfather was a slave owner; before he emancipated the mother of his children, he owned her. Records indicate that at the time slaves were emancipated, Romain Verdun owned twenty-two slaves. When society is identified as the wrongdoer, Vincent Verdun will pay as a member of a society that benefitted from the wrongs of the institution of slavery, and he will be compensated as a member of the injured group.
The reparationist would therefore identify the injured party as all African Americans and identify the wrongdoer as society. Society is doing well and still reaping the benefits of slave labor. The injured party is still injured and suffering from the consequences of the wrong. From the African-American consciousness, the match is an obvious and simple one, and it is hard for African Americans to conceive how opponents of reparations can justify a continued refusal to right the wrong. . . .
D. Conclusion to Part II
One summer when I was about six, my family drove to Maine. The highway was very straight and hot and shimmered darkly in the sun. My sister and I sat in the back seat of the Studebaker and argued about what color the road was. I said black. My sister said purple. After I had successfully harangued her into admitting that it was indeed black, my father gently pointed out that my sister still saw it as purple. I was unimpressed with the relevance of that at the time, but with the passage of years, and much more observation, I have come to see endless overheated highways as slightly more purpley than black. My sister and I will probably argue about the hue of life's roads forever. But, the lesson I learned from listening to her wild perceptions is that it really is possible to see things-even the most concrete things-simultaneously yet differently; and that seeing simultaneously yet differently is more easily done by two people than one; but that one person can get the hang of it with lots of time and effort. [Quote from Professor Patricia Williams]
Undoubtedly, Professor Williams's sister's opinion about the road was not ideologically based, nor did the compromise cause the sister to displace a system of values. . . [This] Article has described two points of view on the issue of reparations to African Americans. Each perspective is driven by values and norms that affect the perception of the evaluator. It is not anticipated that opponents of reparations, who assume the dominant perspective, will upon reading this Article be convinced that their position is wrong. In fact, it is not proposed that their position is wrong; it is just different-a difference that is better understood when the foundational principles on which it stands are exposed. It is important for Professor Williams to understand that she will see black at times when her sister will see purple, and perhaps she will come to know why her sister sees purple. That understanding births respect for the sister's point of view. Without that understanding, Professor Williams might construe her sister as frivolous, outlandish, or even silly. Opponents of reparations have been intolerant and even insulting to reparationists, evidencing an overt disrespect for their position. That intolerance was created in an Ethnocentricity Laboratory, which recognizes "one way" which is by popular acceptance "the right way." Opponents of reparations should understand that there are different ways of perceiving the world, and that those different perceptions, in this case the African-American consciousness, can have a profound impact on the analysis of the issue of reparations. What is obviously right to the opponent of reparations is clearly wrong to the reparationist. In fact, there is no universal right or universal wrong on the issue of reparations. Understanding and respecting difference is a starting point for constructive debate, negotiations, and compromise.