Moral Justice Is at the Heart of the Reparations Issue

It was 1969 when James Forman rose to interrupt the services of New York City’s Riverside Church to demand the payment of $500 million to American blacks as the reparations “due us as a people who have been exploited and degraded, brutalized, killed and persecuted.” Then, the call for reparations for slavery seemed like just one more of the rhetorical extravagances of the black power movement.

Not anymore. Harvard law professor Charles Ogletree and a powerful coalition of civil rights lawyers are planning national legal action on behalf of the descendants of America’s slaves. And bills to establish a national commission on slave reparations and formulate a national apology for slavery thrash vigorously around in congressional committees. For most of modern history, reparations were usually a premium paid by losers to victors in war. But reparations have now assumed the shape of a moral recompense paid to those who have suffered the loss of life or property or even cultural identity. Paying reparations hit home for Americans in 1988, when Congress authorized restitution to 80,000 Japanese Americans who had been interned during World War II.

But the path to reparations for slavery is beset by unusual problems, starting with tactics. Ogletree’s Reparations Assessment Group, which includes attorney Johnnie L. Cochran Jr. and high-powered class-action lawyers like Richard Scruggs, favors a class-action suit similar to the one that won the tobacco settlement.

But who should be the object of such a suit? Suing the federal government for condoning slavery will be impossible unless the government surrenders its sovereign immunity from civil suits. Besides, the federal government never adopted a national slave code, and left slave legislation to the states.

But suing individual states will also prove tricky. In addition to the slave states of the old Confederacy, many Northern states also permitted slavery, but then abolished it voluntarily before 1820. Should Pennsylvania as well as Georgia be sued for reparations?

Facing these obstacles, both Ogletree’s group and the National Coalition of Blacks for Reparations in America leave open the possibility of suing individuals--the descendants of slave owners. But most slaveholders in the Old South were small-scale farmers, not thousand-bale cotton planters, and whatever personal wealth they may have acquired through the labor of their slaves has disappeared in the 136 years since slavery was abolished. Beyond the question of who should be sued is the problem of who is entitled to do the suing. Unlike the Japanese Americans and the Holocaust survivors, there are no living slaves, or even immediate families of slaves. Establishing who are the current descendants may be impossible.

Also, many slaves were the offspring of illicit or forced master-slave unions; a descendant of a slave could simultaneously be the descendant of a slave owner. Many others, like several of the children born to Thomas Jefferson and his slave, Sally Hemings, “passed” into white society long ago. Should they line up for reparations, too?

A better alternative to litigation may be legislation. The Japanese American settlement owed much of its success to the decision of the Japanese American Citizens League to craft a two-stage legislative strategy: first, the creation of a nonpartisan commission, and then action by Congress on the recommendations of the commission. And two reparations bills introduced by Reps. John Conyers Jr. (D-Mich.) (in 1989 and 1993) and Tony Hall (D-Ohio) (in 2000) are written to follow just this path.

But an investigative commission will still suffer from the absence of the original victims. It also leaves uncertain what shape a congressionally funded reparation might take. In one version, monetary payments would be made to all slave descendants at the modern value of the legendary “40 acres and a mule,” about $200,000.

Others, such as black intellectual Randall Robinson in his book, “The Debt: What America Owes to Blacks,” call for a national trust fund to support African American education through “two successive K-through-college educational generations.” But in the end, Congress might choose simply to issue a national apology, without any material compensation.

The most serious obstacles to slave reparations, however, may be philosophical and historical. U.S. law operates under the Enlightenment assumption that rights belong to individuals, rather than to groups. Reparations based on group identity run hard against the grain of treating Americans as individuals before the law.

Also, unlike the Holocaust or the Japanese American internment, American slavery was ended by a civil war that cost more than 600,000 lives and destroyed more than $6 billion of property. President Lincoln believed that the war was a gigantic reparation that God had demanded from a guilty nation. For those reasons, conservatives are going to be a hard sell on reparations for slavery.

Yet a compelling conservative argument for reparations exists. Opinion on the right has grown skittish about appeals to “social” justice, which seem to glide around questions of morality. Reparations recognize the centrality of moral judgments in evaluating human action. And they are proof that economics--and slavery was about nothing if it wasn’t about economics--must, sooner or later, pass the test of moral standards. It would be no small accomplishment for a “compassionate conservative” administration, as well as conservatives in Congress, to recognize the potential of this issue for centering national attention again on the demands of moral justice, not just the paler version of social justice, on the public life of the nation.