A commission to study government redress for the atrocities of slavery and Jim Crow — what is popularly referred to as “black reparations” — is the subject of bills headed to Congress. Most Democratic presidential contenders have also come out in support of HR 40, the House bill, putting the issue on the table for the 2020 election cycle.
For African Americans and the nation as a whole, the question of reparations is the most significant issue in the quest for racial equality since the passage of civil rights legislation in the 1960s. With race relations today severely challenged and getting worse, black reparations can be an opportunity to turn things around — but only if we seize upon this moment with probity and intelligence.
A primary risk comes from the poor judgments of zealous supporters of black reparations. Too many of them have branded black reparations as a campaign for cash reparations, white punishment or white guilt. Framing the matter in this way is too inelegant a response to the exceptional acts of human degradation wrought by slavery and Jim Crow.
Any commission on reparations has a more delicate and complex task. It must ask: How can the government attain moral clarity in the aftermath of slavery, the nation’s worst atrocity? What conditions are necessary to repair the broken relationship between the government and the victims of that atrocity?
Black reparations is not a recent idea. Public calls for reparations were first made after the Revolutionary War and throughout the antebellum period. At the end of the Civil War, ex-slaves sought redress from Congress. In response, an ex-slave pension bill was introduced in Congress, but went nowhere fast. Since then, each generation of African Americans has asserted the need for redress.
Today’s call for and conceptualization of black reparations is heavily shaped by the Federal Republic of Germany’s response to the Holocaust after World War II. German political leaders took as the primary lesson of the Holocaust that atrocities can occur — even in a government run by highly educated and sophisticated individuals — when a nation’s leaders fail to identify with a segment of its society.
The fundamental purpose for redressing atrocities is to accentuate a common humanity between perpetrator and victims.
The fundamental purpose for redressing atrocities, then, is to accentuate a common humanity between perpetrator and victims. Properly understood, a reparation is the revelation and realization of this common humanity.
This same kind of understanding helped to persuade Congress to commission a 1980 study of the internment of Japanese Americans during World War II. The commission’s report resulted in a redress program that, not unlike Germany’s program, extended a governmental apology and redress payments in various forms to those who were relocated and imprisoned in camps. Republicans and Democrats alike supported the authorizing legislation, the Civil Liberties Act of 1988. President Reagan signed it into law.
The next year, Rep. John Conyers (D-Mich.) introduced the first HR 40, calling for the creation of a commission to study black reparations. He reintroduced it every year thereafter until 2017, but the bill never made it out of committee. The current HR 40 is sponsored by Rep. Sheila Jackson Lee (D-Texas); Sen. Cory Booker (D-N.J.) introduced parallel legislation in the Senate this month.
Since the initial introduction of HR 40, scholars have fashioned two competing redress models. The first is the settlement model, also called the tort model. It is backward-looking and victim-focused. Its reparative scheme is designed to financially compensate victims for their demonstrable loss, and, sometimes, to deliver punitive justice.
Supporters believe that wrongs as mortal as slavery and Jim Crow should not go unpunished and victims should not go without individual relief. Redress is thus seen not as a moral imperative but as a legal claim and the quotidian language of tort litigation — statute of limitations, property and restitution law, calculation of damages — takes center stage. This approach, in my view, exaggerates the complexity and contentiousness of what ought to be a mutual movement toward racial reconciliation.
There is no apology or admission of guilt by the perpetrator under the tort model; no personal accountability. There is only a settlement, which allows the perpetrator to declare victory and go home. It does less well by the victims. South African scholars report that victims of apartheid who received cash reparations were poor again within a year of receiving them.
The atonement model, by contrast, is forward-looking and perpetrator-focused. It pursues restorative justice. In other words, the goal is for the perpetrator to reclaim its moral character by initiating conditions that help repair its broken relationship with the victims. Restorative justice imbibes a post-Holocaust vision of redress whereby the perpetrator comes to recognize and identify with the victims’ humanity.
Under the atonement model, redress comes in two stages. First and foremost, the perpetrator issues an apology and tenders some form of reparations; the victims then calculate the sincerity of the apology by the weight of the reparations. Hence, more than the victims’ loss — for no reparation can fully compensate the victims of an atrocity — reparations give substance to the perpetrator’s apology.
Cash payments to individual victims are but a small part of the reparative package under the atonement model wherever it has been implemented. The most effective reparations are “rehabilitative,” as they are designed to nurture the group’s self-empowerment and community-building. In the case of African Americans, rehabilitative reparations must begin with the lingering effects of slavery and Jim Crow, including the racial gaps in homeownership (43% of African Americans are homeowners, compared with 73% of whites), net family wealth (the median white household owns 86 times the assets of the median black household) and educational funding (predominantly black school districts annually receive $23 billion less in K-12 funding than similarly sized white school districts).
Forgiveness is the second step under the atonement model. It may not be immediate or automatically forthcoming. And yet, once an appropriate apology and sufficient reparations are provided by the government, the question of forgiveness arrives on each victim’s desk like a subpoena; it necessitates a response. Forgiveness evolves over time as the perpetrator and victims negotiate and adjust the reparations.
Many questions, philosophical and practical, arise even under the atonement model. How is it that African Americans today are victims of slavery such that they are entitled to reparations for that atrocity? Has not the debt the government owes to blacks based on slavery been paid off with the blood of soldiers during the Civil War? Does the claim for redress lend itself to identity politics or victimhood? How is it possible to calculate the appropriate amount of reparations? Would black immigrants or rich African Americans be eligible for reparations? Scholars have worked out nonpartisan answers to these important questions.
Renowned philosopher Arthur Schopenhauer observed that every truth passes through three stages before it is recognized. In the first stage it is ridiculed, in the second stage it is opposed, and in the third stage it is regarded as self-evident. That our government must at long last redress the atrocities of slavery and Jim Crow has now reached the second stage. I have no doubt that it will reach the third if we can come to see reparations as not about our past, but about our future.
Roy L. Brooks, Warren Distinguished Professor of Law and University Professor at the University of San Diego Law School, is the author of “Atonement and Forgiveness: A New Model for Black Reparations.”