Wednesday, December 01, 2021

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 Abstract

Excerpted From: Tuneen E. Chisolm, When Righteousness Fails: The New Incentive for Reparations for Slavery and its Continuing Aftermath in the United States, 24 University of Pennsylvania Journal of Law and Social Change 195 (2021) (Footnotes) (Full Document)

 

reparations400Reparations to descendants of enslaved Africans in the United States of America are long overdue. For support of that assertion, this Article primarily rests on the repeated findings of the United Nations' Committee on the Elimination of Racial Discrimination relating to the nation's progress toward eliminating all forms of racial discrimination, the United Nations' Working Group of Experts on People of African Descent findings on the condition of people of African descent within the nation, and, more generally, the vast, ever-expanding body of literature and legal scholarship detailing the connection of continuing systemic oppression of descendants of enslaved Africans to slavery and post-slavery historical injustices. The only legitimate questions about reparations for descendants of enslaved Africans in America are how such reparations should be framed and implemented, and who or what will succeed in causing the United States to grant them. This Article explores both questions, using a framework that references Jewish Holocaust reparations as a benchmark throughout, notwithstanding certain acknowledged distinctions, because the success of that movement in large degree makes it a logical and helpful comparator.

Few publicly question the merit of past and continuing reparations for victims of the systemic persecution of European Jews by Germany's Nazi regime and its collaborators across German-occupied Europe, over the course of approximately thirteen years. Yet, many, if not most, challenge the merit of reparations for the victims of the Trans-Atlantic Slave Trade and the related enslavement of generations of Africans, and the subsequent and continuing post-slavery persecution and oppression of their descendants, all over the course of centuries.

An estimated 6 million European Jewish men, women, and children were murdered by Nazis who believed that Germans were racially superior to Jews, Blacks, and other groups. That 6 million does not include the numbers of Jews who were otherwise persecuted, caused to die of starvation or disease, forced to flee, and/or deprived of their property solely based on their Jewish identity.

An estimated 12.5 million captured African men, women, and children were transported to the Americas for eventual enslavement in the course of the Trans-Atlantic Slave Trade between 1517 and 1867. An estimated 2 million African men, women, and children were murdered in the course of holding Africans captive and forcing them into the vessels that carried captives over the Atlantic Ocean, away from their homeland and families. An estimated 1.8 million African men, women, and children who were forced on to those vessels “did not survive the horrors of the Middle Passage.” An estimated 300,000 of the African men, women, and children who did survive the Middle Passage were delivered, enslaved, and forcibly bred and raped to produce progeny for the enslavers' benefit in what became the United States. From that number, an estimated 4 million Africans and African descendants were held in bondage and the count is unknown for the number of enslaved Africans and descendants who were murdered in the course of nearly 250 years of slavery in what became the United States. Also unknown is the count of Black men, women, and children murdered, otherwise persecuted, caused to die of starvation or disease, forced to flee, and/or deprived of their property solely based on their Black identity post-slavery and continuing up to present day.

As legal, moral, social, and political philosopher Professor J. Angelo Corlett aptly stated:

“[If] the Nazi oppression of Jews warrants reparations from Germany (which, of course, it does), then racist oppression of Natives and AfricanAmericans warrants reparations from the U.S. government.”

Certainly, the United States understands the importance of reparations and knows how to hold others accountable for granting them. The United States passed laws on restitution of property for the Jews within its occupied zone following World War II, and also championed early denazification efforts during the early part of the occupation. The United States facilitated reparations for Jewish Holocaust victims, and also passed legislation--the Lipinski Resolution--demanding Japan's grant of monetary compensation and issuance of apology for its wrongful acts toward so-called “comfort women” during World War II. As recently as 2014, the United States played a direct role in securing reparation payments from France for certain Holocaust deportation victims, their spouses, and heirs, after civil lawsuits in U.S. federal courts against the French railroad company that transported individuals to Nazi concentration camps were unsuccessful. The United States also knows how to grant reparations, as it granted reparations for its own World War II internment of Japanese Americans and Aleuts, albeit decades after the actual internments.

Yet, in 2001, when discussion of demands for reparations from nations that participated in the Trans-Atlantic Slave Trade was proposed as an agenda item for the inaugural World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (the “WCAR”), the United States shamelessly took a hard stance on the global stage, at first refusing to participate at all, and ultimately withdrawing the U.S. delegation from the conference prior to its conclusion.

Despite its support, facilitation, and subsequent granting of the above-enumerated World War II reparations, the United States has been unwilling to self-impose reparations to descendants of enslaved Africans in America. The H.R. 40 bill, to establish a Commission to Study and Develop Reparation Proposals for AfricanAmericans was modeled after the Civil Liberties Act which ultimately led to the grant of reparations to interned Japanese-Americans and their descendants. Yet, the bill languished in the Senate for nearly thirty years after its introduction in 1993, before the most recent version, introduced in the House in January 2019, finally reached subcommittee hearing in June 2019.

Based on the facts, we can conclude that the United States' failure to grant reparations to AfricanAmericans for the mass atrocity of slavery, Jim Crowism, and the persisting aftermath of those racial caste regimes has been a conscious choice. What accounts for this decision?

While reparations to Jewish Holocaust victims have primarily consisted of monetary payments and restitution of stolen property, the scope of reparations as a remedy is significantly broader than that. Indeed, the remedy is multi-faceted with the aim of addressing both the cause and impact of gross historical injustices and mass atrocities, particularly where there have been government-sanctioned violations of internationally-recognized fundamental human rights. When viewed as transitional justice, reparations consider and accomplish what a “successor regime committed to democracy, human rights, and the rule of law can and should do to achieve justice for human rights abuses perpetrated by and under an abusive forebear [er].” Such must be the focus of reparations for slavery and its aftermath in a country such as the United States, which has historically declared itself the model of democracy.

Thus, for the United States, admitting that reparations for slavery and post-slavery systemic injustices are due would be to admit a critical failure of a nation whose very birth purportedly was premised on evading oppression. Because an effective grant of reparations should be transformative of the institutions and relationships giving rise to the underlying injustices, the granting of meaningful reparations to descendants of enslaved Africans in America must include an overhaul of institutions plagued with systemic racism and would thus necessarily threaten the racial and political power imbalance to which this nation has grown accustomed. It is likely for these reasons that the United States has proven itself unwilling to self-impose reparations to remedy its historical and continuing injustices against Black America. Further, in contrast to the moral economy incentive that was present in connection with reparations for the Jewish Holocaust, the absence of a third-party nation with the political and/or economic power to compel the United States to grant reparations has thwarted the success of movements for reparations for descendants of enslaved Africans to date.

Meanwhile, events over the last decade and, in particular, since the 2016 presidential election, have confirmed continuing patterns of systemic oppression, racial disparities, and discrimination, as well as a genocidal approach to treatment of Black Americans by various government and private actors for the world to see. Based on a fact-finding visit to and study of the United States, in 2016 the United Nations' Working Group of Experts on Peoples of Africa Descent--established at the inaugural WCAR and charged by the United Nations General Assembly with monitoring the human rights situation of people of African descent worldwide--issued a report calling on the United States to finally pass the long-stagnant H.R. 40 bill to establish a Commission to Study of Reparation Proposals for AfricanAmericans. Significantly, the Working Group also called for reparations, urging the United States to seriously consider “applying analogous elements contained in the Caribbean Community's Ten-Point Action Plan on Reparations, which includes a formal apology, health initiatives, educational opportunities, an African knowledge programme, psychological rehabilitation, technology transfer and financial support, and debt cancellation.”

The current state of our nation reveals the United States as a hypocritical and dysfunctional “democracy,” if the nation can rightly be called a democracy at all. It divests the nation of its historic claim to moral high ground, undercutting the validity of the United States' democracy mantra. It also threatens to diminish the power of the United States to maintain alliances for purposes of promoting or coercing democracy extraterritorially. These broader potential consequences now at stake have given rise to new incentives for the United States to grant the reparations necessary to address the slavery-related harms that, until very recently, the United States has preferred to forget--if not outright deny.

The remainder of this Article proceeds in four parts, prior to concluding. Part I sets the stage with a brief discussion of the general scope of reparations as a remedy applicable in the case of mass atrocities and historical injustices, accompanied by illustrations of what the remedy has meant in the context of reparations for Jewish Holocaust victims. Part I also discusses the prerequisites for entitlement to reparations, as set forth in the literature based upon successful claims. With regard to the question of how reparations for slavery and its aftermath should be framed and implemented, Part II begins by examining the definitions of democracy and argues that, consistent with the ideals set forth in the United States' own Bill of Rights, the United Nations Declaration of Human Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”), a substantive democracy is the preferred goal. Part II then explores how the United States has failed to live up to its claimed status as moral leader of the free world and the epitome of democracy, using relevant United Nations treaties as the framework for analysis, but primarily focusing on assessments of the United States' progress toward complying with its obligations under the Covenant for the Elimination of All Forms of Racial Discrimination. Part II also illustrates the race-based gap in the United States' commitment to democracy, human rights, and the rule of law within its own borders, and it includes an overview of the 2016 call for reparations by the Working Group of Experts on People of African Descent.

Further illustrating the continuing harm, while also broadly addressing the question of how reparations for slavery and its aftermath should be framed, Part III discusses why democracy in the United States was a fallacy at its inception, in light of the intentional incorporation of social structures and government systems meant to preserve and perpetuate slavery and the racial caste system upon which it was built. It argues for elimination of such vestiges of slavery. Focusing specifically on the United States' failure and unwillingness to fully comply with Article 4 of ICERD, Part III identifies White supremacist ideology as the core of the United States' systemic ills, arguing that reparations for slavery and its continuing aftermath must directly address White supremacist mentality to transition the United States to a functioning, substantive democracy.

Finally, with regard to the question of who or what will succeed in causing the U.S. government to finally grant reparations for slavery and its aftermath, this Article explores the moral economy incentive for reparations through the lens of interest convergence theory, a theory first articulated by the late Professor Derrick Bell as an explanation for the landmark Brown v. Board of Education decision. This Article concludes that the nation's own interest in restoring and preserving its global image, status, and leverage as a world leader provides a formidable alternative to the missing external or international ally that, under the moral economy incentive theory, would otherwise compel the United States to be accountable for its expansive history of slavery and related continuing injustices against descendants of enslaved Africans.

[. . .]

To date, neither moral obligation nor general public criticism has been enough to motivate the United States to legislate even a study of the threshold issues or how the nation might effectively provide reparations to descendants of enslaved Africans. What has been missing from the repeated calls for reparations from the United States is a political or economic power to support the call and compel compliance, due in part to the complicity of most countries that might be such a power. Because the United States is not so righteous after all, reparations for slavery and its ongoing aftermath must serve a purpose beyond addressing the harms to a people comprising only about fourteen percent of the total population, whose disenfranchisement is the historic norm for this country. Thus, the alternative to the missing moral economy incentive is a contemporaneous, parallel ulterior motive for the United States to grant reparations--a significant benefit to the United States itself that would result from the grant.

Simply put, to correct course from its current trajectory, the United States must rid itself of all vestiges of slavery and eliminate its tolerance for the White supremacist mentality that has been allowed to infect and influence all levels of government and private institutions essential to the democratic functions upon which the United States purports to base itself. That is, the United States must implement comprehensive reparations for its enslavement of Africans and their descendants, and for its subsequent role--up to the present day--in enabling and tolerating the systemic oppression, discrimination, and domestic terrorism against descendants of enslaved Africans in America. Without such comprehensive reparations, this nation is doomed to repeat the cyclic pattern of progress/regress it has been engaged in since the Reconstruction era; it is doomed to fall miserably short of the democracy our Constitution calls us to be.

Having been once again introduced in the House Judiciary Committee just two days prior to the Capitol Siege in January 2021, H.R. 40--Commission to Study and Develop Reparation Proposals for AfricanAmericans Act--finally made it out of committee in April 2021, with a 25-17 majority vote. The question now is whether it will successfully emerge from the House and Senate and move us to correct course and make the reparative interventions required to save ourselves as nation?

In his inaugural address at the United States Capitol, a mere two weeks after the Capitol Siege, President Joseph Biden acknowledged the fragility of democracy and issued a call for racial justice that could be construed as a commitment to the systemic overhaul that reparations require; among other things, he said:

A cry for racial justice some 400 years in the making moves us. The dream of justice for all will be deferred no longer.

A cry for survival comes from the planet itself. A cry that can't be any more desperate or any more clear.

And now, a rise in political extremism, white supremacy, domestic terrorism that we must confront and we will defeat.

To overcome these challenges - to restore the soul and to secure the future of America - requires more than words.

It requires that most elusive of things in a democracy:

Unity.

Unity.

In another January in Washington, on New Year's Day 1863, Abraham Lincoln signed the Emancipation Proclamation.

When he put pen to paper, the President said, “If my name ever goes down into history it will be for this act and my whole soul is in it.”

My whole soul is in it.

Today, on this January day, my whole soul is in this:

Bringing America together.

Uniting our people.

And uniting our nation.

I ask every American to join me in this cause.

Uniting to fight the common foes we face:

Anger, resentment, hatred.

Extremism, lawlessness, violence.

Disease, joblessness, hopelessness.

With unity we can do great things. Important things.

We can right wrongs.

....

We can deliver racial justice.

We can make America, once again, the leading force for good in the world.

....

I know speaking of unity can sound to some like a foolish fantasy.

I know the forces that divide us are deep and they are real.

But I also know they are not new.

Our history has been a constant struggle between the American ideal that we are all created equal and the harsh, ugly reality that racism, nativism, fear, and demonization have long torn us apart.

The battle is perennial.

Victory is never assured.

Through the Civil War, the Great Depression, World War, 9/11, through struggle, sacrifice, and setbacks, our “better angels” have always prevailed.

In each of these moments, enough of us came together to carry all of us forward. And, we can do so now.

May God bless and help the United States of America to do so, lest we fail and fall.


Associate Professor of Law at Campbell University School of Law; J.D. University of Pennsylvania Law School; Sc.B. Brown University.


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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law

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