Edieth Y. Wu
excerpted from: Edieth Y. Wu, REPARATIONS TO AFRICAN-AMERICANS: THE ONLY REMEDY FOR THE U.S. GOVERNMENT'S FAILURE TO ENFORCE THE 13TH, 14TH, AND 15TH AMENDMENTS , 3 Connecticut Public Interest Law Journal 403 -429 (Spring, 2004) (187 Footnotes)
This article takes a hard look at U.S. history: the political, the social, and the legal landscape after the passage of the 13th, 14th, and 15th Amendments. The author wholeheartedly believes that the Reparations dialogue must continue. Many, including well-educated Americans, are solidly divided on this important issue and have taken the position that Reparations should be buried because American slaves are buried. In spite of the difficulties, wemust study and question the societal norms that led to major changes in the United States and forge ahead to find a solution to the issues that adversely affect a major portion of America's citizenry. Reparations have been used internationally as well as domestically and are not novel theories.
The U.S. has not realized the great society that so many projected was possible for this nation. Like the Truth and Reconciliation Commission in South Africa after Apartheid, the U.S. must come to grips with its failures and shortcomings as they relate to a major sector of its population. Therefore, this article first examines the 13th Amendment, its purposes, and failures. Next, the 14th Amendment's purposes and failures are analyzed. Third, the 15th Amendment is analyzed. Finally, the article concludes that Reparations is the only remedy for the federal government's egregious breach of the protections that are guaranteed by the Amendments.
African slaves were subjected to extreme conditions, as well as continued acts of violence long after they were freed and in spite of major legal advances. Today, "when African Americans [descendants of the African slaves] say the word 'reparations,' you'd think they had suggested something completely outrageous." To the chagrin of many, "the concept is legitimate." Fifty billion dollars in restitution was paid by Germany to the Jews after WWII, and Japanese Americans received twenty thousand dollarsfrom the U.S. government as a result of their confinement in camps during WWII. The request for "reparations aren't some extralegal remedy that belongs to the past, but a process that is the usual means to resolve harms done by a nation against a people. The penumbras of the post slavery Amendments and the Government's failure to enforce the Amendments support such a process.
Two years before the ratification of the 13th Amendment, African slaves in many parts of the U.S. had learned about The Emancipation Proclamation, which freed slaves in designated parts of the United States. "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Congress had the power to enforce this article by appropriate legislation. "Emancipation, while it may have ended slavery - did not bring freedom to the African [slaves]. It was after slavery that you get some of the most barbaric, uncivilized manifestations of hate and of the sense of white superiority." This unfortunately continues in modern times. As recently as December 2003, the FBI investigated a situation where threatening letters were sent to prominent black men in sports and other prominentcareers. These letters included threats of being shot, castrated, or set on fire if Black men refused to stop having relationships with Whites.
After freedom, Blacks were brutally segregated and relegated to hard times and conditions. Due to many changes in America, "Black rights became vulnerable to compromise and sacrifice. By the late 1800's Whites began to insist on formal racial segregation, which had long been practiced in fact; segregation was given official status to show whites that they were indeed superior to blacks." The Black Codes were a constant reminder to Blacks that "freedom was not as they had anticipated." The Codes were used to inhibit freedom by dictating all aspects of the ex-slaves' lives, from work hours and duties to behavior, especially when Blacks had to deal with Whites or when they were in the presence of Whites. Blacks were often arrested when they solicited services from restaurants that were open to the general public. States usually had statutes that made it a misdemeanor to refuse to leave the premises of establishments when requested by the owner to do so. These statutes were used to protect Whites from the inferior Blacks. In Georgia v. Rachel, the defendants argued that "their arrests were effected for the sole purpose of aiding, abetting, and perpetuating customs, and usages which have deep historical and psychological roots in the mores and attitudes ...." These were common types of prosecutions that were unfolding throughout the country. Blacks were barred from towns after certain hours and could not reside in certain towns and cities. Under Jim Crow, many "Black males were expected to tip their hats in the presence of whites, even if they were walking on the opposite side of the street." The Codes were implemented in the late nineteenth century and, unfortunately, lasted until the 1960s. Neither Blacks nor Whites could easily disregard this 'Code Mentality'; thus, the 'Code Mentality' had a profound effect well beyond the 1960s because people who had lived under that system refused to relinquish what they had come to know as the 'norm.' "[L]egalized segregation could not achieve its purpose without imposing inequality," and grave inequity. "The purposeful creation and maintenance of inequality" was sanctioned and upheld by the U.S. government to the detriment of the freed African slaves. The judicial branch of the U.S. Government put its stamp of approval on separate but equal when it made it the law of the land.The Court, in Plessy v. Ferguson, put its stamp of approval on the "superiority" of Whites. After the Plessy decision, Whites had a "legal right" to a separate lifestyle. Though many services and amenities were financially supported by the federal government, it nevertheless decided to enforce white rights at the freed African slaves' expense. "De jure segregation in the Southconstituted one of the material benefits of racial exclusion and subjugation which functioned to stifle class tensions among whites." This government sanctioned exclusion highlights the government's failure to treat its new citizens equally by providing protection only to the majority Whites.
Early in American society and especially after the abolition of slavery, "white privilege" became an expectation. Whiteness became the quintessential property of personhood. The societal sentiment of the day, which was legally supported by the Codes, elevated "whiteness" to an "object" over which continued control was expected and, in reality, obtained. Whites were expected to use this privilege, and they did - it was accepted as a right because they were "White" and that had value, which brought benefits. The "law recognized, either implicitly or explicitly, the settled expectations of whites built on the privileges and benefits produced by white supremacy, it acknowledge[d] and reinforce[d] a property interest in whiteness that reproduces Black subordination." With this type of support for White supremacy and domination, the freed African slaves' path was severely jeopardized.
As a result of the passage of the 13th Amendment, additional legislation was passed. Unfortunately, progress was further hampered because the judicial system failed in the art of genuine interpretation, which is to uncover the rule the lawmaker intended to establish. Notwithstandingpositive laws, slow progress was recorded for ex-slaves after their emancipation. Additional amendments were adopted, but bias continued in the courts immediately after Emancipation and that bias still exists today. Thus, "it takes legislative [and judicial] support and public concern to bring about changes," not only in the judicial system but also throughout the fabric of America. In spite of setbacks, ex-slaves remained optimistic that they would soon be accepted by White society, and they continued to work toward that end.
In 1865, African slaves were finally made citizens of the U.S. They could finally drop
the 'slave label' and accept themselves as American African citizens or African Americans citizens.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.
Congress had the "power to enforce, by appropriate legislation, the provisions of this article." The 14th Amendment and subsequent legislation were intended to impose a new political and economic view on a country that had, prior to the Amendment, conducted itself without much restraint. During the early periods after the 13th and 14th Amendments were passed, courts offered little assistance; thus, oppression and violations of civil rights continued. These results were not part of the Amendments' vision of the new order. This "spurious interpretation" and disregard for the Amendments' purposes continued up to, through, and beyond the passage of the 15th Amendment. As a result, the law was brought into disrepute, the Court was placed under extreme political pressure, and the personal element was highly visible in the judiciary.
The courts' refusal to uphold the intent of the legislation reinforced the African Americans' view that courts make and unmake the law at will. Many courts buckled under pressure and "adjusted[ed] constitutional provisions to the exigencies of [the] current policy." Public sentiment that was not always favorable to the African American was, nonetheless, often interspersed into final decisions. White supremacy and "white privilege serve[d] several functions ... it provide[d] white people with 'perks' that [they did] not earn and that [African Americans did] not enjoy" and still do not enjoy to date. "Whiteness as property hascarried and produced a heavy legacy .... It has warped efforts to remediate racial exploitation."
This "legacy" also affected the new African American citizens' hope that expanded educational opportunities would be available now that they were citizens. In spite of roadblocks that were set up to thwart educational opportunities, the Court determined that mandating equality of education could rectify past denials. The Supreme Court affirmed the constitutionality of such programs in higher education in Regents of the University of California v. Bakke. In upholding the University's position, the Court specifically stated "that race can be used to remedy disadvantages cast on minorities by past racial prejudices." Since 1980, the demise of affirmative action became more evident as decisions to enforce the equal protection clause came under attack. Many middle-class Whites summarily reject all types of affirmative action programs for African Americans while selectively forgetting the reality that they did not get where they are today based on the virtues of "[m]erit-hard work, intelligence, pluck, and maybe a little luck. And while we [whites] may be sympathetic to the plight of others, we close down when we hear the words 'affirmative action' or 'racial preferences."' We worked hard, we made it on our own, the thinking goes, why don't they? After all, the Civil Rights Act was enacted almost 40 years ago." This view led to an all-out attack against affirmative action.
As a result, projections are made that affirmative action programs may not be upheld if a compelling interest is not shown. For example, a Texas law school's attempt to "remedy past discrimination (through affirmative action) in the Texas school system and to increase the diversity of the law school" was assaulted because it exemplified affirmative action. Specifically, in Hopwood v. Texas, white plaintiffs argued that the University of Texas Law School's admissions policy was using an impermissible quota system. This decision came in spite of the knowledge that the American Bar Association's "academic standards create a system that without affirmative action, would have allowed only 22 percent of the 8,375 blacks who applied to law school to be accepted at even the least selective school. The remaining 6,554 blacks would not have qualified for admission at any school." "The underrepresentation in the legal profession oppresses blacks in pervasive, insidious ways." The Court agreed that race was being used impermissibly. Fortunately, a positive change in African Americans' struggle to obtain equality in education came with the U.S. Supreme Court's decision in Grutter v. Bollinger, where it held that "The Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited bythe Equal Protection Clause, Title VI, or 1981." As a result, the Court definitively clarified the rule concerning the use of race, which was not uniform in the circuit courts. Race can be used to correct past harms as well as to provide educational benefits to minorities.
Affirmative action helps alleviate segregation in higher education. In public elementary and high schools around the nation, segregation continues to be a major issue. Sub-standard public schools contribute to ill preparedness for those students who want to attend institutions of higher learning. "Minority students in high poverty areas are not getting a quality education." Thus, a strong argument has been waged that merit should not be equated with performance on standardized tests because they are unreliable in determining who will succeed in college. Likewise, they not only prevent capable students from attending college but they also fail to accurately predict persons who will perform well in future jobs. One study has shown that Blacks' social disadvantages are reflected in low SAT scores and high school grades but do not hinder their success if they are admitted to good schools. The graduates, more often than not, take active roles in society and become important leaders both within the Black community and in society at large. Usually, the affirmative action argument normalizes and legitimizes procedures for selection that are not fair or functional. This is done in spite of the education thatBlacks receive or fail to receive in the public school systems. Blacks and other ethnic minorities are expected to compete with students who are afforded educational opportunities that were envisioned for the freed slaves, but which have not been realized to date. "Every passing day denies these children their constitutional right to a substantially equal educational opportunity" and perpetuates the imbalance in education and economic advancement.
A recent study has shown a deeper problem in the education system that creates a labeling bias which usually only affects African Americans. For example, Black boys living in wealthier communities with a majority White student body are found to be at a greater risk of having schools label them as mentally retarded and, as a result, Black boys are often sent to special education classes. After being placed in special education, African American children are far less likely to be part of the regular classes than similarly situated White children. These decisions have long-term effects that affect the employability and economic potential of Black males.
The assault on affirmative action is analogous to the government's passing laws that have the pretext of providing opportunity, yet in actuality fail to protect the pretextual opportunities. Studies have shown that "Actual performance often correlates best with on-the job training." Thepeople who do well usually learn on the job; the ones who are given the opportunity to learn on the job usually do well. Opportunity is so often what has been denied to descendents of ex-slaves. If Black students are labeled as mentally retarded, they are denied opportunities on several levels. "Assessment through opportunity to perform works better than testing for performance." Blacks have been excluded and marginalized in the workplace and in schools. This marginalization is insidious and affects all aspects of life; it prevents Blacks from becoming integral links in society, especially economically. African Americans do not enjoy equal opportunity in the U.S., which is undeniably reflected in the unemployment rate. The jobless rate for African Americans in 1998 for 20-24 year-olds was 16.8%. Although down from 24.5 percent in 198l, the prospects for employment are grim for African Americans. Even though the jobless rate has gone down, that means little to Travon Netherly, a student at L.A. Southwest College. Recently, says Travon, four of his brothers applied for a job at an Orange County amusement park. Despite the help-wanted ad in the window, all were turned away. My brothers were willing to take anything, even wear one of those Snoopy costumes, says Netherly, who bitterly adds, it don't take skills to be Snoopy.
This type of blatant rejection of young African Americans sends a clear signal that the time has come to bury the property interest in "whiteness" because it profoundly affects Blacks. Affirmative action is a "must tool" in that task. Affirmative action is consistent with equality and is essential to ridding America of the legacy of oppression against African Americans and the elimination of "whiteness as property." The U.S. government played a major role in discriminating against African Americans. Not only did the Government neglect issues that affected African Americans, it also inconsistently enforced the laws in favor of private citizens who developed elaborate plans to prevent Blacks from exercising their rights. For example, the Department of Agriculture agreed to compensate Black farmers for discrimination that the Department inflicted on them. The settlement was a result of a lawsuit that alleged that the government used more restrictive terms for loans to Black farmers than to White farmers with similar credit histories. This treatment impacted the farmers' economic situation. As a result of this discrimination, to which the government admits, the percentage of Black farmers has dropped to 1%. In the 1920's, however, 14% of the nation's farmers were Black. In spite of the settlement and its admitted discriminatory behavior, the Government is allowing its past to repeat itself as a result of the Agriculture Secretary's refusal to terminate high officials who allowed the discrimination against Black farmers to take place in the first place. Such decisions fuel antagonism and send signals to the nation's employers and private citizens thatit may be worth taking a chance on discrimination. If the Government can do it, so can others. This complacency "is going to cost taxpayers hundreds of millions of dollars. It seems that somebody should be held accountable." This failure to fully accept responsibility and dismantle the problem from its roots is analogous to what the U.S. Government is doing in its failure to address the Reparations issue in a meaningful way.
Blacks are discriminated against by both the federal and state governments, the educational system, and employers, especially in the legal arena which continues to exclude blacks en masse. Blacks are so underrepresented in the legal system today that Black lawyers are sometimes mistaken for defendants and restrained by bailiffs when they attempt to approach the bench. This is degrading to the Black lawyer and his, oftentimes, Black clients as well because it highlights the ill-treatment that highly educated, professional Blacks are also subjected to. When Black clients witness this, they have little confidence in the judges. Moreover, Blacks usually receive unequal sentences to similarly situated Whites, and bail is also granted inequitably. Judges are also part of the racism that is so overtly reflected in the courtroom: judges oftentimes "overrule juries' imposition of life sentences in favor of death sentences for Blacks who kill Whites and credit White witnesses while discrediting similar Black witnesses." In 1996, the ABA's Commission on Opportunitiesfor Minorities in the Profession stated that minorities are "experiencing legal setbacks that remind them of Plessy." "The Supreme Court of 1996 seems very similar to the court of Plessy v. Ferguson." For about thirty years, statutory protection was afforded to African Americans. "After 40 years of constitutional rulings ... in the courts, we now see a sense of fatigue. Currently, the Supreme Court is ignoring the vestiges of widespread racism in society. As a result, a trend toward re-segregation is developing. "The Country is witnessing resegregation without ever having achieved the goal of a completely desegregated society. Schools across the nation are being resegregated. "The resegregation trend picked up momentum as a result of a 1991 Supreme Court decision that authorized a return to neighborhood schools instead of busing, even if such a step would lead to segregation." This segregation or "resegregation" extends to all areas of the society: social, employment, education, and especially the legal system, which is the last of the citadels.
Perceptions of bias, especially in the legal system, are not viewed the same by Black and White Americans; a major divide exists. As late as 1999, many African Americans, especially African American lawyers, continue to believe that racial bias currently exists in the judicial system.Fifty-two percent of the Black lawyers, as opposed to six-and-one-half percentof the White lawyers believe very much that bias exists. Additionally, "[t]wo-thirds of the black lawyers, about 92 %, said that, compared to other segments of society, the justice system has the same amount of racial bias or more. Nearly half the White lawyers believe there is less." The Association of American Law Schools (AALS) Equal Justice Project (EJP) highlights the importance of law schools working with the equal justice community in order to provide needed services to minorities, especially Blacks. The public interest and grassroots organizations provide a range of services to the poor and working class, many of whom are African Americans with limited resources and education. Programs like the Law School Consortium Project, the famed Innocence Project, which provides services to people that claim unjust convictions, the Equal Justice Centers at the University of California at Berkeley, Santa Clara Law School, and the University of Seattle have also created centers to help with equal justice activities in their schools and communities to provide services and support for African Americans who have been denied adequate legal representation based on economic and other factors. These programs indictate that major problems persist in America, and that they are inextricably tied to race. They are not only based on economic inequality but also based on inequality in the justice system and lack of representation therein. Many African Americans are profiled based on race. Skin color has been amajor issue in recent police shootings and other profiling related cases. African American arrests resulting from profiling cases are usually drug related. Black and White drug arrests are comparable; nonetheless, Blacks are more often jailed than their White counterparts for the same offense.
Massive changes have taken place since 1868, when citizenship brought hope of a better day and better treatment. This hope was fueled by the prospect of perhaps being able to vote now that citizenship had been bestowed on "ex-slaves."
"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Congress has the "power to enforce this article by appropriate legislation." There is a basic connection among work, education, and citizenship [which] suggests that the screening process for employment and education has become the modern-day equivalent of eighteenth and nineteenth-century screening processes for voting. In the colonial period and the first decades of independence, the franchise was generally restricted by race and gender to landed white males .... In the last nineteenth century, voting was also conditioned on the capacity to pay and theability to read. Voting was not as easy as the "new citizen" thought it would be. For many years voter qualifications were tied to their ability to pay a poll tax, which was based on one's ability to find employment - a most difficult task for the ex-slave. African Americans struggled to pay because they realized, and believed, that voting was worth it.
In order to obtain finances to pay poll taxes, Blacks would often try to separate themselves from White society. Nonetheless, they were often met with serious racial violence. In 1921, one of the worst cases of racial violence was manifested when approximately 10,000 Whites invaded a prosperous Black neighborhood and killed 40 Blacks and destroyed 35 blocks of business and family homes. Unfortunately, Blacks were reminded that in spite of amassing financial wherewithal that would allow them to participation in the system, Whites could easily amass a myriad of roadblocks.
Finally, it was concluded that wealth was not germane to people's abilities to participate intelligently in the election process; thus, wealth-based credentials, especially ones with extreme race consequences, should not forge access to work and education but which they often do in American society.
Blacks continued to struggle for their civil liberties. By 1963, "the movement for racial equality was in full flower." African Americans'zeal and contributions to getting others to vote came under direct attack. Voter-fraud investigations were initiated against Black voter advocates in increased numbers. For instance, after African Americans began to win a number of offices in the Black Belt counties, local Whites complained of voter fraud and the federal government subsequently initiated a voter-fraud investigation against two local voting-rights activists.The two were convicted but the case was later overruled with the assistance of the NAACP Legal Defense Fund. In 1985, the federal government also launched an investigation against Albert Turner, his wife, Evelyn, and Spencer Houge Jr., or the "The Marion Three," all of whom were civil rights activists. The Government accused them of fraud in the absentee ballots and forgery of signatures. This suit ended in an acquittal for all three. Similar cases have also been pursued in Alabama, and many Blacks believe that the cases have had a profound impact on the Black vote in Alabama, which has caused a major reduction in voter turnout, and which benefits White Alabamans.
Perhaps even more egregious and appalling was when Republican North Carolina Senator Jesse Helms, trailing a black opponent in 1990, mailed out postcards to 125,000 black voters implicitly threatening them with jail if they went to the polls. Helms's campaign settled a complaint with the Justice Department in 1992, but not before he had won another term. Many activists believethat the U.S. government should put a stop to abusive prosecution in the voter area. They argue, "the rights that blacks have fought hard for may be in fundamental danger."
The U.S. government must protect the African American vote. "Voter-fraud investigations and other attempts to intimidate black voters [is] a stunning reversal of the goals of voting rights, aided by a willing Justice Department." Unfortunately, racial conflict, as a result of legal inroads and civil rights activity, continues to have a great impact in the South. Getting the vote was nice, but attitudinal vestiges continue not only in the ballot box but also in the White South's proud use of questionable symbols that remind Blacks, especially southern Blacks, of the old south - such as the display of the Confederate flag. Major discrimination in all areas continues to persist. The laws that were passed to protect African Americans were not vigorously enforced in the early years, and many people continue to circumvent these laws because punishment is often inconsequential. To date, "civil rights laws, even more than others, are radically flouted and underenforced."
Unfortunately, even after the passage of the Amendments, African Americans were deprived of life, liberty, education, and family ties, and vestiges of these deprivations are still pervasive. As a result of such demoralizing denials, a few Blacks tried to establish themselves in Americansociety by adopting the "whiteness as property" ideal. The so-called Black elite adopted the "white nice features" - i.e., sharp features - thin noses, thin lips, sharp jaws, and hazel, green, or blue eyes as standards for entry to Black "membership-by-invitation-only" social clubs. These Black elites only accepted "those who passed the 'brown paper bag and ruler test' - skin no darker than a paper bag, hair as straight as a ruler." In other words, like "whiteness," Black elite success was "a color thing and a class thing. And for generations of black people, color and class have been inexorably tied together" because the elite African Americans, like the White American majority, began to see what color could offer. As a result, America placed value on color, mostly "white"and in order to realize benefits, the African American elite bought into the "white" as property and set up its own system, which mirrored the White view.
In spite of the progress that a small Black elite may have accomplished, the masses of Blacks who have not been afforded opportunities are indicia that the basic principle of equality are still being denied to African Americans as a people.
Buying into "color," especially "white," was vividly displayed by Sally Hemings' heirs and other Blacks who unquestionably accepted the Sally Hemings-Thomas Jefferson story on its face, and Whites who unequivocally rejected it until DNA gave the final answer. Being part White translated intosomething tangible in the White world, and later in the Black elites' world. Who can really say why the Black side of the family so insisted that the story was true? The "whiteness as property" concept probably has major bearing on the why. "Perhaps a more historically responsible way to make a similar if slight different case is to suggest that advancing technology has at least allowed us to open a window into the covert and concealed [and often denied] interracial intimacies that have always been there but that many white Americans have preferred to deny."
Americans' denial of racial injustice persists for inexplicable reasons. The recent revelation about Strom Thurmond's Black daughter, which is similar to the Sally Heming's story, illustrates that Blacks as well as Whites had to know about the daughter, but for inexplicable reasons decided not to divulge credible evidence. Essie Mae Washington-Williams also acknowledged in her statement to the press that "there are many stories like Sally Hemings' and mine." Ms. Washington-Williams was born in South Carolina in 1925; her mother was a maid to the Thurmond family. She admitted that she wanted to end "all the speculation and questions," the same types of questions that were raised in the Hemings story. The truth about the Senator's daughter and the questions raised were kept secret for more than seven decades. This revelation has ignited many dormant feelings for many African Americans. Someremembered that if a Black man looked at a White woman in those days, the Black man would have been severely harassed or hanged. This story brings many of the hard issues to the surface. Americans, both Black and White, made hard decisions during a very tumultuous time in American history; some of the decisions were detrimental to the African American, but not all were. Some Blacks reaped benefits from their ability to use "whiteness."
The 13th, 14th, and 15th Amendments did not bestow exactly what the "new citizen" had envisioned, but at least they were starts. These Amendments inspired and allowed them to work zealously to correct past injustices. African Americans are demanding and uniting to pressure the U.S. Government to give its African American citizens, who are obviously deeply affected by the vestiges of post-slavery atrocities, the opportunity to at least air their grievances and receive an apology, as well as ultimately receive Reparations that would allow closure and reconciliation. Representative John Conyers introduced bill H.R. 40 in 1989, which urged Congress to establish a Commission to study the issues. One germane argument is that the judges allowed Holocaust victims to pursue restitution in a U.S. court. Even though the case was settled prior to litigation, opportunity was afforded to the litigants to have their day in court. The Reparations Assessment Group has launched an aggressive effort, though most lawsuits and legislation dating back to the mid-1800s have not beensuccessful, to get American Blacks compensated for more than 244 years of slavery. Most would agree that the Holocaust victims should have had access to the legal systems. Nonetheless, the U.S. should evaluate its approach to its other citizens, the African Americans, and concerns about Reparations. In recent years, victims of atrocities, many of whom are not American, have filed more than 100 lawsuits in U.S. courts in an attempt to obtain accountability for offenses against human dignity and rights. These suits are indicia that the world has started to recognize such atrocities as legitimate legal issues and also that victims should have recourse, yet some U.S. judges have refused to adopt this position. For example, the United Nations World Conference Against Racism recently "declared slavery a crime against humanity." The U.S. needs to embrace this position as well.
No nation can enslave a race of people for hundreds of years, set them free bedraggled and penniless, put them, without assistance in a hostile environment, against privileged victimizers, and then reasonably expect the gap between the heirs of the two groups to narrow. Lines, begun parallel and left alone, can never touch.
Reparations suits are being filed in U.S. courts, but the Supreme Court has not allowed them to proceed to trial.
Reparations supporters are not looking to place a check in the hands of everyAfrican American, but they "envision reparations being used to fund education, improve health care, create cultural facilities and buy and expand businesses in the [B]lack community. At the very least they hope the government will issue a formal apology for the institution of slavery."
Black organizations have been created to assist African Americans in realizing their dream to enjoy their rights as freed citizens, including the right to vote, the right to obtain justice, and ultimately, the right to achieve equality of opportunity. "Slavery's aftermath ... deserve[s] to be met with the same sense of public penance that the nation eventually applied to its wartime failures in having imprisoned Japanese-Americans and in ignoring evidence of the Holocaust in Germany." Unfortunately, "white" skin continues to open doors in the U.S. for Whites because dominance has been conferred on them. Whites continue to enjoy unearned skin privileges because
1. [They] can take a job with an affirmative action employer without having coworkers on the job suspect that [they] got it because of race.
2. [They] can choose public accommodation without fearing that people of [their] race cannot get in or will be mistreated in the places [they] have chosen.
3. Whether [they] issue checks, credit cards, or cash, [they] can count on [it that their] skin color will not work against the appearance of financial reliability.
Obliviousness about White advantage and Black disadvantage is kept strongly inculturated in the U.S. in order to maintain the meritocracy myth. They are constantly being challenged because they are used as a pretext for not opening doors of opportunity to African Americans. Like South Africa, America needs to unite the country and courageously accept the undeniable truth that cruel acts were committed against its former slaves, later its ex-slave citizens, and now the children and grandchildren of these ex-slave citizens. African Americans, the descendants of ex-slaves, may not have direct recollection of the specific cruelties, but they have faced severe limitations as a result of years of de facto practices and de jure laws that affected their liberties and unfortunately persisted for many, many years.
"The United States government is a continuous, living body that must be held accountable for all its previous actions and make amends for past mistakes." After the passage of the 13th, 14th, and 15th Amendments, the U.S. allowed its [White] citizens to continue to exploit and destroy a people; as a result, "it owes them" because the effects of this exploitation continue. As late as 1995, a UN report estimated that American Whites would lead the world in well-being if they were a separatenation, but African Americans would rank 27th worldwide. It is interesting to note that the report's measures were based on life expectancy, educational achievement, and income.
"Full equality still is a distant prospect in the United States." Nonetheless, some have decided to assist in the move toward equality. In 2000, Chicago became the fifth city to endorse national hearings on reparations, and in 2001, the California Legislative Assembly joined the list making California the forerunner of all the states. California's Resolution urges "Congress to apologize to Black Americans for the "fundamental injustice, cruelty, brutality and inhumanity of slavery."'
The reparations cry is definitely gathering momentum. "America will continue to be haunted by slavery [and its aftermath] until the government makes amends" and addresses the issue because "the truth is quite crucial to the process of reconciliation." This process would allow the U.S. to "shut the door on that past." This may be a past that we may not want to remember, but remember we must. An apology must come. The nation must send a message to its citizens that will lead to racial harmony. "The debate over slavery reparations should be viewed as a means toward improving race relations." We must resist allowing the public to turn the issue into "a shouting match about paychecks and forty acres." "America will continue to be haunted by slavery until the governmentmakes amends beginning with a formal apology."
[a1]. Interim Associate Dean and Associate Professor of Law, Thurgood Marshall School of Law at Texas Southern University.