III. Modern Narratives About Race and Slavery: Post-Racialism, Race-Consciousness, and Reparations

      We do not see things as they are, we see them as we are.

       -- Anais Nin
      The Polley case brings to the present a past that is often referred to, but not often discussed, in non-academic contemporary contexts. Indeed, Judge Pratt and the Polley descendants had a dual purpose in bringing this 150 years overdue case to trial. The judge and the descendants sought to “set the record straight” for the knowledge of the Polley descendants and to raise the historical awareness of the general public. In doing so, this case raises larger concerns about how we ought to consider the American history of slavery in our modern context. This next section will offer some introductory remarks on this matter and then briefly examine our varying approaches to this question--how America considers the narrative of slavery and the resulting challenges of race that come with it.

      To put it directly, slavery has often been called the “original sin” of the United States. Slavery existed in each one of the thirteen original colonies. And although never referred to by name in the document itself, the original Constitution of the United States made reference to and laid a foundation for the federal government to mediate the political economy of slavery during the first half of the nineteenth century. Subsequently, the abolition of slavery and the effort to address the consequences of its ending were the key purpose of the Reconstruction Amendments to the Constitution. These amendments have defined our constitutional law and serve as a cornerstone of the individual rights every American holds.

      Moreover, slavery and the racial, cultural, and political divides that slavery created have been intrinsic parts of the history and present-day culture of the United States. Though it goes beyond the scope of this short Essay to provide an extended discussion of the history of slavery and its overarching contribution to defining modern American race relations, most would agree to the basic proposition that slavery defined the American condition. The question then becomes how best to understand this past and what relevance should it have in our present. The claim of this Essay is that slavery is the defining first idea of relations between peoples in the United States.

      At the heart of this idea is the notion that slavery has defined this nation and shaped its contours. This claim creates a narrative lens through which one might view how American society functions and what its core principles are. Slavery thus created a narrative within the United States about how Americans should understand the damage done by slavery. In this narrative, slavery created (or at least contributed to) a hierarchy based upon white male supremacy and the subjugation of women and people of color. While some might argue that this is the correct assumption through which to understand American society, others would argue that such assumptions are no longer warranted given the passage of time and the advancements that minorities have made in American society.

      At the heart of this larger debate is the question of what remedy, if any, ought to be provided in light of the harms one believes are still relevant from the history of slavery (assuming one believes there are still present harms). Put another way, what obligation still exists to create equality between those who suffered slavery and those who benefitted from slavery? There are those who, depending on their narrative, would argue that the harms of slavery have already been remedied, or would argue that the harms need to be addressed in an ongoing way. Even though it may appear that this issue is one of mere history, these debates about remedies for the legacy of slavery continue in modern-day issues, like affirmative action.

      Although one might debate the effects of slavery on modern-day America, the Polley case presents a different challenge: How should one speak of this history and what remedies for specific actions in the past should be carried out in the present? Rather than focus on cumulative effects and societal changes over time, the Polley case forces us to consider whether, how, and to what extent the past should be spoken of in the present. It requires us to think about historical mindfulness and concrete facts about our collective past.

      Nonetheless, any American reading these cases approaches them with some combination of three modern narratives about slavery and racism in the United States. We must inevitably view the history of the Polley case through these lenses. This part of the Essay will now turn to briefly analyzing the core assumptions of each of these lenses. It will begin by examining the ideology of post-racialism, the view that America no longer needs to consider the problems of racism in its public policy discourse. Then, the Essay will discuss what I am calling the race-conscious viewpoint, which claims that racism is present, salient, and should be considered in addressing modern-day public policy concerns. Finally, this section will examine the reparations approach, which not only claims that racism is salient in modern-day society, but that compensation ought to be paid for the overt harms done by the majority to the minorities during the period of de jure racial subjugation. Then, in the next part, this Essay will consider in more detail how the Polley case may offer a different approach through which we might consider our collective--and individual--past.

A. Post-Racialism and the Discontinued Relevance of Slavery

      Probably the most contemporary lens through which the American dilemma of race is viewed (and as a result it provides a narrative for the history of slavery) is the idea that America is a “post-racial” society. The narrative relies on the premise that American society has concluded its struggle with race and, therefore, when it comes to the structuring of our laws, there is no further need to discuss issues of race. It is the ideology that claims that America has moved beyond race and that there is thus no need to discuss race as a salient issue.

      Scholars have explained that post-racialism works as an ideology--it offers a point of view about the world and, thus, allows the adherent to consider and reflect on various issues through this particular lens. In particular, Professor Sumi Cho points out that the power of post-racialism is that of making conversations about race irrelevant to the adherent of the ideology. Adopters of the post-racialism point of view tend to discount the importance of race as the relevant guidepost for the way society is organized. Conversations about race become irrelevant, and those who wish to discuss race are seen as divisive and destructive.

      Working in close relationship with post-racialism is the separate but complementary view of colorblindness. Colorblindness is an aspirational concept that takes expression for many as a view that by force of societal change, race will become irrelevant throughout society; where, in contrast, post-racialism is an ideology which shapes decisions about how the world ought to be viewed and explains choices concerning issues regarding race.

      Professor Cho argues that colorblindness, though it is still important to the mainstream, traditional political right, is relatively outmoded in comparison to the ideology of post-racialism. Post-racialism is more virulent and persuasive because it represents an ideology that converges with enough of the facts of the moment and the hopes of people across the political spectrum to offer a salient battle-is-over analysis of the current state of race relations in the United States. Put more directly, post-racialism offers the point of view that the ideology of White Supremacy has effectively run its course, and thus, the adherents of White Supremacy are no longer forced to confront their own prejudice. White people are, therefore, redeemed of their prejudices and absolved of their past bad conduct.

      Thus, from this point of view, discussions about race are irrelevant to the public policy and legal conversations of our era. For political conservatives, analyses of social problems are cast in terms of defending the apparent status quo and the existing hierarchy of social class as neutral and beyond race. In particular, analysis of social problems is placed in the context of completing the (illegitimate, they would argue) mission of remedying racial inequality. From this point of view, for example, the election of Barack Obama becomes a hallmark of triumph, and thus, the attention that the left wing racial rabble-rousers have received can be directed to other issues. Moreover, the ideological oppression of the right can be lifted. In other words, the condemnation that it suffers for perpetuating racial hierarchies is now invalid because a minority has ascended to the highest office in the land, thus feeding the narrative that any person may have access to the social goods of the United States without being limited by race.

      Similarly, for the political left, the completion of the conflict concerning race also liberates American society from further need of discussion of the topic. To use again the example of the election of President Obama, it represents the ability to move on to more important concerns because the battle concerning race is now complete, and the liberal vision of America in terms of race is now a reality. Moreover, the problems of social inequality are viewed as having to do with factors other than race--for example, the misdistribution of educational benefits is considered to be one that can be remedied by emphasis on class analyses rather than race.

      The effect of this shift of the mode of thinking is that we now arguably have a society that desires to avoid altogether conversations that have to do with race generally. This, in essence, completes the work done by the legal movement towards colorblindness. The aspirational scheme of colorblindness sought to steadily move away from a vision of combating racism towards a vision of a world where race is completely irrelevant. Conversations about race are relegated to the past, and those who attempt to raise the issue are seen as irrelevant. This is despite the mountain of evidence of the role race plays in political conversations from day to day. Post-racialism represents the achievement of this goal to those who buy into the ideology. The logical conclusion of such a view is that the issue of race as a framework for organizing preferences and priorities in our society is outmoded.

      Thus, the post-racialist lens would likely treat a unique historical occurrence like the Polley litigation as historical trivia, and therefore view it as irrelevant to modern considerations. More to the point, a post-racialist view would see this as an interesting story about a kidnapping over 150 years ago, but would likely deem it a waste of time for a court to be involved in rehashing wounds from a time long past concerning a history that is no longer relevant. And even if the history were relevant for historical purposes, the use of judicial resources and governmental action in making a declaration of freedom would nonetheless be a waste.

B. Critical Race Theory and an Awareness of Slavery

      In contrast to the race-is-now-irrelevant position of the ideology post-racialism and colorblindness, the ideology of race-consciousness begins with the assumption that racism is a tool through which society is organized, and thus, racial hierarchies exist and affect how we see the world. Racism is a present reality, and, thus, policy and practice on both a societal level and an individual level should take this into account in order to improve the state of being throughout our society.

      Racism, as both a collective and an individual nature, serves to structure our society. As a collective matter, racism creates a hierarchy where society is structured along racial lines so that members of one race receive more status and benefits than others. In particular, in the United States especially, members of the white race have been the beneficiaries of this distribution where members of other races--for example, Blacks, Latinos, and Asian Americans--have been denied the same degree of benefit. Indeed, members of these groups have suffered detriment. Given the nature of the system, race-conscious theorists would call this a system of White Supremacy. This system of racial preference distributes prime material benefits to white people and denies or creates a detriment to people of other races.

      In addition to the material nature of racism, racism also has an ideological dimension. Racism forms a lens through which one sees the world, or, put another way, it creates a narrative that has explanatory power about how the world is structured. Racism as ideology provides “a pool of beliefs, symbols, metaphors, and images that justify and ‘naturalize’ its Racism creates a narrative by which one might apply this particular logic whereby one can understand the world. Thus, the racial distribution of property and privilege and social status has a justification. It also provides a view of history whereby the distribution and the beliefs are rationalized and made functional. Racism is both a system of privilege and an epistemology.

      The question then becomes whether and how to combat this system in its modern-day guise. For the person who believes this entire narrative, and sees it as the correct structure, no further analysis is necessary. Obviously, this person would be an unrepentant White Supremacist--content with the ideological structure of the world as is (or this person may even desire a shift of the current system of racism to be more in line with his or her ideology). In contrast, the adherent to the race-conscious point of view of which I speak-- which perceives racial discrimination as a wrong--would believe that race-consciousness is the beginning of an effort to effect a remedy to such discrimination.

      Logically, such a desire to combat the system of White Supremacy would begin with the question of whether the ideology of racism can ever be supplanted. The late Professor Derrick Bell, who is often touted as the founder of the Critical Race Theory intellectual movement in the legal academy, famously argued that racism is permanent. In other words, racism is an immutable characteristic of American society and it is impossible to eradicate. To this end, Bell believed that conscious awareness of racism would lead to a more sane and aware scope of life for individuals and for society. For others, strands of critical race theory have taken a different tact than Bell and do not necessarily agree that racism is permanent.

      Despite what view one might take concerning the ultimate nature of racism, most race-conscious theorists would agree that advocacy against racism is an appropriate reaction to societal and institutional racism, and that laws of antidiscrimination and conscious awareness of interpersonal interaction would provide a way to ultimately combat--and ideally eliminate--racism on the personal and cultural level. Thus, like the aspiration of colorblindness, the race-conscious combatant of racism would seek a day where racism is irrelevant to our modern lives, but the race-conscious school of thought does not believe that this goal has been reached in the present day. Thus, it must be combated continually through efforts to make people aware of the material harms, status harms, and psychic harms that racism causes.

      Within this context, the race-conscious ideology would value an exploration of the history of race revealed by cases like the Polley kidnapping. Conscious confrontation of the “original sin” of slavery and its continuing effects is necessary from this ideological point of view. Thus, an explanation of the harms of slavery and the objectifying nature of its practice--as the Polley case illustrates vividly--is a necessary and welcome exercise. Indeed, in the Polley case specifically, the narrative is powerful precisely because a legal institution legitimized the Polley descendants' claims. In this sense, the Polley family is validated and legitimized because society has recognized their ancestors' proper status as “FREE PERSONS.” Moreover, the Polley court, through undertaking the hearing and ruling in this case, expresses the values of our modern society. It is powerful to hear the implicit pronouncement of freedom despite imposed slavery by a court of law, even if this effort at justice was 150 years delayed. Furthermore, through naming the history that the Polley children and their descendants suffered, it would, from this view, go a long way to remedying the psychic harms of slavery and its long legacy.

      However, even in the race-conscious approach, there are limits. While the Polley case may be useful as a psychic exercise to raise consciousness, it would not necessarily satisfy the remedial needs for the harms caused. Those critical race theorists would believe that such a debt exists, whether that debt is material, financial, or psychic, and that the debt should be paid as a necessary step in racial reconciliation. This leads us to discuss the reparations position.

C. Reparations and the Present Demand for a Material Remedy for Slavery

      Within the realm of race-conscious ideology is a particular movement that is directed to the state's obligation to address the harms of slavery and the long legacy of racism. This particular claim is premised on the notion that awareness is insufficient to remedy the harms of slavery and racism. The reparations school of thought would argue that racism has created tangible material harms against specific people. They, and their descendants, have suffered material, status, and psychic harms as a result of the existence of racism, and those harms should be remedied. Moreover, the White Supremacist power structure perpetuated and benefitted from such economic, physical, and psychic injury. The nature of society today is built upon this foundation, and, therefore, those who benefit from it should remedy this injurious situation by providing compensation--reparations--to those who have suffered the harms.

      This argument has societal and individual dimensions. However, most of the modern debates concerning reparations are about remedying societal and broad economic harms. Various reparations lawsuits have been brought to remedy specific harms such as race riots, systemic and specific harms to groups of people of color, medical experimentation on people of color, and similar large-scale harms. These lawsuits have failed, however, due to a number of legal concerns regarding standing, the complexity of causation, statute of limitations, and the difficulty of conceptualizing the remedy.

      Another theoretical issue concerning the reparations movement is how to conceptualize the nature of the remedy. As suggested above, those who advocate for reparations often see themselves as wishing to address material economic and social harms. Most often this is framed as a consideration of specific economic compensations for damages done. But others have framed this consideration as repairing the status and cultural harms done by long-term racism, such as providing educational benefits and economic revitalization to minorities so as to remedy the effects of slavery. There are those who have also argued that an apology, given the authority of and on behalf of the state, would also count as a type of reparation.

      From this point of view, the unearthing of facts relating to the harms of slavery would be the first necessary step to providing compensation for its harms. It would then follow that the person to be held accountable--or their successors--would then provide compensation for the harms done to the minority or former slave or their successors. It would, in and of itself, establish a relationship and require a connection that recognizes the nature of the harm and provides compensation for it.

      In light of these competing ways of understanding the history of slavery, the twenty-first century Polley case represents something that is different from the three modalities described above. The Polley descendants did not ask for any compensation, or any apology, or any concession from the state. This would certainly not represent an effort to obtain reparations as classically conceived. The act of adjudicating this case (where the legal need to do so in light of the Thirteenth Amendment might be thought of as dubious by some) and putting the imputer of the state upon this decision definitely flies in the face of the post-racialist model. A race-conscious theorist would see value in unearthing and making people aware of this history, and they would find a declaration or judgment remedying the error of omission at the heart of the West Virginia Polley case essential to an understanding of the present fight against racism. And certainly a post-racialist attitude would deny wholesale the need to even have this conversation, and in particular, place judicial resources behind such a declaration. At best, such a view would relegate the Polley case to the history books.

      If the Polley case does not fit our current models of how to think about race, and as a result how we view the history of slavery, then what does it represent? The next part of this Essay will attempt to offer some thoughts on this by considering the Polley case as a nascent Truth and Reconciliation approach to understanding our history of slavery.