Excerpted From: Joyce Hope Scott, Reparations, Restitution, and Transitional Justice: American Chattel Slavery & its Aftermath, A Moral Debate Whose Time Has Come , 39 Wisconsin International Law Journal 269 (Spring, 2022) (162 Footnotes) (Full Document)


JoyceHopeScottThe involuntary arrival of captive Africans in America was accompanied by the creation of a flurry of laws (such as the infamous Code Noir introduced to Louisiana in 1724) which operated to co-opt their personhood and re-assign them the status of property. These laws resulted in the racial caste system that became embedded in the very fabric of the United States' sociocultural and politico-economic reality. Thus, from the start, colonial powers literally and figuratively created a prison-like environment to contain the African captive within the defined spaces of the plantation economy and its sociopolitical landscape. To Americanize the African, it was necessary to rewrite the Black body through institutionalized practices of violence against it, including scarring, mutilations, distortions, and other destructions. Stripped naked, shackled, and branded, the trafficked African could become disciplined flesh. The re-spatialization of Blackness was accompanied by myriad architectures of confinement, policing, and surveillance. In the public imagination, the enslaved African was rendered hopelessly barbarous, and the enslaved body became an unable and unwilling mass of flesh for use and abuse.

This denial of personhood is evident, for example, in the advertisements for runaway slaves, especially the early ones which have only the barest outline of a human form. The nondescript imagery is associated with the captive's sociopolitical, economic, and legal status as a piece of property. This placed the enslaved African in between racial being and nothingness. Thus, the Black body in America began, as Charles Johnson says, as “a product of imagination, a plastic and malleable thing freighted with ambiguity.”

A new ideology of representation developed out of the legal and sociocultural constructs of personhood found within the institution of slavery. Whiteness and the white body were legalized and normalized, in contrast to the “other.” The idea of Blackness as a commodity was normalized through a process of Black bodies being measured, priced, valuated, and redefined in biology, anatomy, and physiology. Within the discursive authority of science and law, the Black captive became the preeminent signifier of the propertied body, assessed for its economic potential, worth, and ability to produce commerce and reproduce human commodities. This specific construction of the African American as something different from a citizen begins with the framing of the Constitution where, for purposes of apportionment, Blacks were defined as three-fifths of a human being. “The Constitution assumes white men's rights to hold citizenship,” as Jon-Christian Suggs suggests, “African Americans, on the other hand, are amendments to the narrative of American legal and social reality and their individual and collective existences must always be argued rather than assumed.”

In response to this history of dehumanizing Black people, this article offers a critical reading of the movement for reparations. It proposes that the movement is a call for reckoning, restitution, and transitional justice for the lasting legacies of slavery and segregation in America, and a call for structures to help Black people self-repair psychologically, economically, and spiritually. This article will first explore the history of the transatlantic trafficking to and enslavement of Africans in America (Part I). It will look at the laws that accompanied and cemented the structures of white supremacy and the theft of personhood and Black wealth, before discussing the lasting economic, psychological, and social effects of slavery and Jim Crow. It will then discuss the reparations movement, including the key concepts and current developments in the national and international scenes (Parts II & III), before concluding (Part IV).

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The horrific abuse endured by Black people during slavery did not end with the abolition of slavery. Emancipation was followed by one hundred more years of institutionalized subjugation (and dispossession) through the enactment of Black Codes and Jim Crow laws, peonage, convict leasing, domestic terrorism, lynching, theft, and the destruction of Black homes, towns, and communities. Today the violations continue with indiscriminate police murders, injustice in the courts, unequal education, and substandard health care. When we combine the human rights violations of institutionalized enslavement with these crimes fostered by racism and violation of citizenship rights, they all equal catastrophic damage to one class of American citizenry. As discouraging as it is today, “centuries after racist slave patrols formed the foundation of American policing in the South, Black people are still disproportionately arrested and killed by law enforcement, and police officers are rarely held to account.”

That historical injustices and thefts at all levels were committed against people of African descent is undeniable. The very origins of the United States attest to the fact that the nation was founded as a slave colony and that captive Africans were imprisoned in an enclave of carcerality and deprivation as a result of laws, policies, and practices created and enforced by a ruling white elite. In essence, narratives of United States history have reframed and glorified the European settlers' purpose and program in the establishment of the nation. Nevertheless, the immoral and paradoxical nature of a nation existing on exclamations of God-given unalienable rights while at the same time depriving one group of its citizens of those very rights is a Frankenstein specter that has continued to haunt the nation since its founding. Thus, the matter of repair for moral and legal transgressions is interwoven into the long litany of injustice and dispossession of Black Americans. The justifications for restitution were foregrounded as early as the writings of John Locke in his Second Treatise. The Quaker minister, John Woolman, also wrote a clear justification for reparations in his reflection on the inhumanity and violent excesses he witnessed taking place against enslaved Black people. The irony today is that many in positions of power seem willing to rationalize the irrationality of chattel slavery and the subsequent abuse and dispossession of African people in order to protect white supremacist power and financial dominance. To a large degree, perhaps this is why there has been a failure to confront the nation's festering wounds of systemic racism and judicial injustices for African Americans. The emergence of social movements like the current “Black Lives Matter,” the National African American Reparations Commission (NAARC), the National Coalition of Blacks for Reparations in America (N'COBRA), among others, reveals the urgency of the moment and the determination of African Americans to continue the long line of civil actions begun in the 18th century.

To be sure, much change has occurred in United States society over the past several decades, particularly around policies of amelioration and reform to ensure civil rights for all Americans. It is, indeed, time to re-deploy those strategies to advance the agenda of H.R. 40 and other reparatory justice initiatives taking place. For example, a number of United States cities like Stockton, Sacramento, Providence, Austin, Durham, Asheville, Kansas City, and St. Paul have initiated policies to award reparations to their African American populations. These overtures of repair are timely and laudable with the potential to foster healing and facilitate reconciliation, restorative justice, and restitution for the millions who seek justice. It is serendipitous that in this UN International Decade for People of African Descent (IDPAD), we find ourselves again in a transformative moment where reclaiming the soul of this nation can be undertaken seriously by addressing the claim for reparations. Theft, persecution, and dispossession have long been the defining signifiers of Black people's experience in America. Indeed, reparations to them are long-overdue, and it is time for a good-faith gesture of atonement.

Dr. Joyce Hope Scott is Clinical Professor of African American Studies at Boston University. Boston, Massachusetts USA.