Representative Sheila Jackson Lee (Democrat – Texas) earlier this year introduced H.R. 40 which is intended to address “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 study and consider a national apology and proposals for reparations for the institution of slavery.” Since that time, many Democratic presidential hopefuls have endorsed her proposal. Senator Elizabeth Warren has stated that she is in favor of government reparations “to black Americans who were economically affected by slavery.” Senator Warren also urges us to “confront . . . the [nation’s] dark history of government-sanctioned discrimination,” an odd qualification given that national and state policy for over 50 years has vigorously enforced civil rights laws in areas like employment, education, housing, and health. Other presidential candidates such as Senator Cory Booker and former Congressman Beto O’Rourke have added their support to Jackson’s proposal.
A national apology for slavery may well be overdue. But the real battle will be over reparations, which any Congressional Commission is likely to endorse. There is presently no formulation in the current legislation indicating the size of the financial burden of this program or how reparations should be distributed. Noticeably absent is any effort to reconcile the policy with other proposed new entitlements, including the Green New Deal, free college tuition, and Medicare for All.
How then to approach this particular claim on public resources? The initial premise of the black reparations movement is one that everyone of all political persuasions should accept: there is no place for slavery in any civilized society. But the issue here is not whether slavery is immoral. It is what should be done about that problem over 150 years after slavery was ended, often with the blood of white abolitionists and soldiers whose descendants are asked to be held account for the wrongs that they bitterly fought against. As I have long argued, one particularly troublesome aspect of the black reparations movement is its strained relationship to generally-accepted theories of individual or collective responsibility.
In dealing with ordinary private lawsuits, it is often instructive to ask: who is suing whom and for what? Those questions receive clear answers in commercial disputes between two traders, or even in civil rights claims that discrete individuals bring against the individuals or organizations whom they identify as the source of the discrimination. But calls for reparations are painted on a far larger canvas that do not satisfactorily address three key issues.
First, which people or groups are to pay for the reparations? It is not sufficient to say that the federal government should pay, without asking which individuals or groups should be taxed to cover the expenses. To pay these expenses out of general revenues means that black taxpayers should be included in the pool of potential payers, along with the descendants of many other groups that have also suffered from official and private forms of discrimination, including Chinese citizens whose ancestors were subject to exclusion laws, Japanese who were subjected to years in internment camps, and Jews and Roman Catholics who suffered various indignities, both private and governmental, sometimes at the hands of a shrinking white Protestant majority, many of whose members sought to redress the wrongs in question. Indeed, many citizens of all races arrived long after slavery had ended, and many taxpayers are permanent aliens who do not participate in the political life of the nation. Do they all pay, and if so in what proportions?
Second, who should be the recipient of reparations? Do black immigrants to the United States after the Civil War receive benefits from the programs? What happens with children born hundreds of years later? What should be done with mixed-raced individuals? Senator Warren seems to suggest that the potential eligible pool should include those parties who suffered from government sanctioned-discrimination. But it is far from clear whether all black populations throughout the United States have suffered to the same extent as blacks who were trapped in such places as Mississippi at the height of Jim Crow. It is also difficult to figure out in any individual case, or even estimate, whether and to what extent each individual was adversely affected by slavery, its aftereffects, or government-sanctioned discrimination. Are athletes and entertainers with million-dollar-plus incomes to receive reparations, or is there some income or wealth cap that eliminates at least some potential applicants?
It is impossible to answer the full range of questions that arise separately for millions of people all of whom have had different life experiences. Nor is it clear what account, if any, should be taken of the substantial government aid given to many black individuals and families, sometimes under race-specific programs and sometimes under general provisions of social services, from welfare, housing, Medicare and Medicaid, to unemployment benefits that have long been on the books.
Third, the current claims for reparations do not fit easily into any known theory of remedies. The strongest lawsuits always address claims that a victim brings against a wrongdoer. For these purposes, the relevant claims come in two sorts. The first claims for reparations point to the deliberate and premeditated acts of theft and despoliation committed by white slave owners and others against black slaves. The second, sounding in restitution, alleges that when the defendant has been unjustly enriched by taking the fruits of the plaintiff’s labor, the plaintiffs are due recompense for those benefits wrested from them by force. Both of these claims resonate in connection with the many sins of slavery. But the moment all the original victims and malefactors are gone, neither of these theories can easily apply. The descendants of any given wrongdoer are not themselves wrongdoers, and in any private dispute, the estate of the decedent could be held liable in a wrongful death action, but no one could seek to recover for those wrongs from the separate assets, independently acquired, of their descendants.
On the restitution side, it is tempting to say that the descendants received the gains that their ancestors wrongfully accumulated, which they are now bound to return. But claims of this sort typically fail for many reasons, the simplest of which is that the wrongdoers who have gained from these illegal actions have long ago consumed the benefits they obtained, making it is very difficult to trace these wrongful gains down across generations. Indeed, progressives have to look at themselves in the mirror because most of the more recent activities that have hampered the economic progress of black citizens can be laid at their doorstep. Legislation like zoning, unions, minimum wage laws, and fierce opposition to charter schools have long disadvantaged black individuals. Indeed, the recent improvement in wages for black and minority citizens is largely attributed to the labor market liberalization of the much reviled Trump administration. The lesson is that voluntary market exchanges can produce wealth far more than any transfer program no matter how noble (or partisan) the motivations.
Nor does a program of the size and scale of black reparations gain any traction from the successful, focused reparations programs of the past. The German reparations program following the Holocaust, signed by Germany and Israel in 1953, came right after a systematic campaign of extermination that in scope and sheer evil exceeded ignominies of slavery and segregation, horrible brutal as they were. And the activities of the Holocaust were all organized by a unified government in a short twelve-year period, not over decades in which many key legislative, executive, and judicial bodies were united in their opposition to discriminatory practices. No one would think that a German reparations program should have begun 150 years after these gross atrocities were committed.
Nor are the long-overdue Japanese reparations for the World War II internments an apt precedent for black reparations today. President Ronald Reagan signed the Civil Liberties Act of 1988 which issued a public apology and provided for a payment of $20,000 to each camp survivor, for a total estimated at $1.25 billion. But no provision was made to provide additional payments to the spouses and descendants of these survivors, which is the demand made in the case of black reparations. No nation should ever forget the sins of its past. But by the same token, the most important task going forward is to heal the tattered social fabric. At this point, we need closure, not further animosities, which is just what we are likely to see if Congress does establish a reparations commission.