Excerpted From: Hal Clay, Forty Acres and a Mule: America's Bill for Reparations Is Long Past Overdue, 24 Scholar: St. Mary's Law Review on Race and Social Justice 505 (2023) (615 Footnotes) (Full Document)


HalClayTo accept one's past--one's history--is not the same thing as drowning in it; it is learning how to use it. An invented past can never be used; it cracks and crumbles under the pressures of life like clay in a season of drought.

[. . .]

The idea that the commodification, suffering, and forced labor of enslaved Africans is what made the United States a wealthy and powerful nation is discomforting; it makes many uneasy, bitter, or even hostile. It is an idea that is antithetical to the American values enshrined in our nation's founding documents. Yet, Black labor and suffering created the United States as it exists today. When considered together with the historical suffering and harm Black people living in America have faced in issues of housing, education, voting, health, wealth distribution and criminal justice, there can no longer be any denial that the United States owes Black Americans a monumental debt. America has never officially apologized to Black Americans for slavery, and the subsequent harmful policies and laws enacted against them and on them which have their roots inextricably established in racism. Whenever Black people collectively and specifically speak to the realities of anti - Blackness, there is often outrage and backlash from offended people who would rather pretend that racism does not exist, yet have it continue unabated and most importantly, unacknowledg ed as ““racism.” Acknowledging racism would necessitate people to actively work at eradicating it, or at the very least, to call it out when they see it. The events of the 2020 murders of Ahmaud Arbery in Brunswick, GA, Breonna Taylor in Louisville, KY, George Floyd in Minneapolis, MN, and the shooting of Jacob Blake in Kenosha, WI, have coalesced, bringing to light something that Black Americans have known since before the formation of this country: that there are, and have always been, two Americas.

There is an existing disparity between what the Founding Fathers wrote when declaring independence from Britain's King George II--“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”--and the historic experience of Black Americans. After the American Revolution, those same Founding Fathers wrote that the Constitution promises to its citizens to “form a more perfect union ... and secure the blessings of liberty to ourselves and our posterity,” but failed to adequately address whether those same promises “to ourselves” applied to Black Americans. At the time of its founding, slavery was legal in every state in the Union because “[p]eople of African descent were as important in building northern cities such as New York as they were in producing the cash crops on which the southern economy depended.” The newly formed Federal government and other large domestic institutions were participants and stakeholders in the practice of enslavement. “The savings produced by using enslaved workers spurred economic growth for the country as a whole--and slave owners, particularly--while impoverishing generations of Blacks by depriving them of fundamental rights, freedom, and compensation.”

Make no mistake: race played a pervasive role in the drafting of the Constitution. “When delegates to the Constitutional Convention met in Philadelphia in 1787 [ ... ] there were nearly 700,000 [enslaved persons] living in the United States, worth an estimated $210 million in today's dollars.” The infamous Three-Fifths Compromise did not even attempt to address the inhumanity of slavery. The Founding Fathers were not concerned whether African slaves were entitled to the benefits of the promises enshrined in the Preamble, but rather whether slaves should count as a whole person for purposes of taxation and representation:

Much has been said of the impropriety of representing men who have no will of their own ... They are men, though degraded to the condition of slavery. They are persons known to the municipal laws of the states which they inhabit, as well as to the laws of nature. But representation and taxation go together ... Would it be just to impose a singular burden, without conferring some adequate advantage?

In its original iteration, the U.S. Constitution contained language that allowed the government to tax people that were trafficked via the transatlantic slave trade. Spanning two separate periods, 1798-1802 and 1813-1816, the U.S. Treasury reported slave taxes as one of its chief sources of revenue. States were able to collect 2% per capita of each slave's monetary value.

Many multinational corporations that exist today had a hand in owning slaves in their early history. Cotton commodities, plantation shares, and bonds are all examples of antebellum-era items available on the New York Stock Exchange. Notable universities such as Harvard, Yale, and Princeton were built by slaves and funded the slave trade.

Despite being set free during the Civil War, nearly one million African Americans were left impoverished after they were emancipated. Fountain Hughes was born a slave, and in 1949 was recorded sharing his firsthand observation of what emancipation was like:

When they told me we were free we didn't have nowhere to go. We didn't have no property; we didn't have no home. We was like the cattle; we was just turned out. We had been slaves all of our lives. My mother was a slave, my sisters was slaves, father was a slave. But after freedom you know colored people didn't have nothing.

Facing countless struggles, Blacks were forced to sharecrop to get by. The wealth gap between whites and newly emancipated Blacks became generational through laws passed in the Southern states “that mandated segregation, disenfranchisement, and economic oppression for the next 100 years.” This formed the beginning of the racial wealth gap that plagues our country today. The North was just as complicit. Northern Industrialists realized that Southern cotton and tobacco were vital to the post-Civil War economy and allowed the Southern states to rise from the ashes of the antebellum, rebuilding their society much as it was before the war. Both the North and South needed the agricultural products of the South, which had relied previously on slave labor. This was replaced by sharecropping, which quickly evolved into a system that created a never-ending cycle of indebtedness. One critical issue that was central to post Civil War America was the problem of reintegration of Black people's labor to the American economy. Resumption of the cotton industry was absolutely critical to the re-emergence of the United States as a World Power. Before the Civil War the United States had risen to become the leading producer of cotton in the world with the invention of the cotton gin. Based on census records at the time, the number of slaves increased by 3 million between 1800-1860. “During that same period, the United States per capita GDP more than doubled, going from $58 ($1540 in 2019 dollars) in 1800 to $125 ($3243) in 1860.” At this certain point in history, Natchez, Mississippi had the most millionaires than any other city in the world, due to its ability to produce the greatest amount of cotton. Conversely, the Black population that currently lives in Natchez descended from enslaved workers and still live in poverty. Enslaved Black workers were responsible for nearly half of the workforce in the South, making them partially responsible for the tremendous wealth experienced at that time. However, “[u]nlike the White labor pool, these workers received no wages or profit-sharing, and lived and worked in bondage.” Cotton, a major player in the U.S. economy accounting for at least 5% of the GDP, relied on plantation slave labor to turn a profit. Furthermore, all productivity derived from slave labor accounted for up to 50% of the GDP.

Segregation was legalized if not overtly blessed by successive Republican administrations, and the highest court in the land held that “separate but equal” was a viable solution. The many social, economic and political advances achieved through Reconstruction and implemented to bring about social and economic justice and parity for former slaves, disappeared. Segregation was legal nationwide, which led to Jim Crow legislation being passed in the Southern states, while “in the North, legislatures, mayors, civic associations, banks, and citizens all colluded to pin black people into ghettos” by redlining, limiting movement, restricting access to good paying jobs, schools, labor unions, and brutal policing in the streets for the next 70 years.

It is impossible to separate the legal, social, economic, political and health policies of the United States without recognizing these policies were based solely on race. The Anti-Defamation League defines racism as the “marginalization, exclusion, and/or oppression of people of color based on a socially constructed racial hierarchy that perpetrated White privilege” White identity in the United States was historically constructed in such a way to claim or monopolize access to certain resources and opportunities. By creating that hierarchy and creating policies of exclusion and segregation, whites have been able to reinforce in the American psyche that white people enjoy certain superiority, freedoms, and exclusive access, privileges that other ethnic groups don't. Even poor white people felt and thought that they were better. There is no doubt that there has been much progress made in regard to racial equality, despite the many legal, cultural, educational and economic obstacles to overcome. One needs to only look to a Thurgood Marshall, Michael Jordan, Colin Powell, Oprah Winfrey and Barack Obama as easily identifiable examples. However, in the 21st century, despite the achievements of these and many other notable Black Americans, they remain the exception rather than the rule. Wealthy and successful Blacks didn't get a pass from Jim Crow; well-to-do Blacks didn't (and don't) get an exemption from racism. In their article for Catalyst.org, authors Amelia Costigan, Keisha Garnett, and Emily Troiano note that “[m]any of the disparities between Black and White communities in the United States are an outgrowth of our long history of discriminatory and dehumanizing laws and policies that have created and exacerbated inequality in almost every sphere of life”, adding that “[t]hese laws and policies originated with slavery and continued through segregation and Jim Crow, and are built into the fundamental structures of our societies--our systems of labor, housing, education, voting, healthcare, and justice.” These systemic disparities form the roots of institutionalized racism. To remove these barriers, a full understanding of how racism was built into our social structure is critical, without which, it is impossible to quantify its long-term effects. It is only through acknowledging that the root of these myriad issues descends directly from slavery can the United States reconcile and begin to make long overdue amends. These amends are owed to arguably the most marginalized of her citizens, the direct descendants of her African slaves, and to Blacks who immigrated to the U.S. after the Civil War, who were similarly subjected to and equally marginalized by these same racist policies. Slavery's role in building the economic power of the United States along with its lingering social hierarchy provides compelling evidence of the need for an apology and reparations.

Make no mistake: direct monetary reparations for slavery paid to current Black Americans is the wrong ethical and moral answer, and the incorrect legal solution for the right question. The correct legal, ethical, and moral solution is to pay reparations for the legacy of slavery, which has affected not only the descendants of African slaves, but all Black Americans, including those of African ancestry whose ancestors were never enslaved. They also suffered the same legalized discrimination and state-sanctioned brutality, murder, dispossession and disenfranchisement which continued long after the Civil War ended. That history profoundly handicapped all Black Americans in six distinct areas: (1) limiting access to jobs which paid good wages; (2) restricting access to housing; (3) limiting educational opportunities; (4) disenfranchising Black voters; (5) providing inadequate to no health care; and (6) the overuse of the criminal justice system to suppress Black progress. America's racial reconciliation must begin now with compensation through reparations, which is rightfully owed for the legacy of slavery, and must therefore include Black Americans. If our truths are indeed self-evident, that all men are truly created equal, then it is imperative to right the wrongs of the past now; the urgency is palpable. It is immoral and unconscionable to delay any longer, for if we do, we risk the past continuing to adversely affect America's future.

[. . .]

Father, father

We don't need to escalate

You see, war is not the answer

For only love can conquer hate

You know we've got to find a way

To bring some lovin' here today

Picket lines and picket signs

Don't punish me with brutality

Talk to me

So you can see

Oh, what's going on.

A. Fix Racism. The Continuum Of White Racism Is The Genesis For Reparations

The murder of Black American George Floyd at the hands of a white police officer has become a catalyst for protest throughout America. The murder has also served as a vital moment of national contemplation and introspection to ask ourselves the tough questions we often avoid: How does my own racial bias operate? How can I amplify Black voices? How can I approach the micro and macro aggressions of racism in my workplace, my family, and on the street? Who does my own government work for and against? Only by asking and answering these and similar painful questions sincerely can we bring about tangible change in our own communities, wherever that might be. Marianne Williamson suggests that “the main power of a reparations plan is that it carries moral weight that goes beyond mere economic restitution, because it implies an inherent mea culpa - the acknowledgement on the part of one people of a wrong that has been done, a debt that is owed, and a willingness to pay it.” Williamson further explains that “reparations are not “financial assistance;' they are payment of a debt that has never been paid,” and they thus pave the way for an emotional and psychological healing between Blacks and Whites much needed in the United States.”

At its core, racism in America is a white issue. White tokenism of Dr. King every January falls far short of the permanent change he demanded. Although venerated to near sainthood today, he was despised by white people for standing against the very same issues that continue to exist today. “I imagine that one of the reasons people cling to their hates so stubbornly is because they sense, once hate is gone, that they will be forced to deal with pain.” 1968, Dr. King said the Constitution and the Declaration of Independence were penned by men who owned slaves, and consequently, a “nation that got started like that ... has a lot of repenting to do.” In 1966, Dr. King stated in Mississippi that America “has a choice. Either you give the Negro his God-given rights and his freedom, or you face the fact of continual social disruption and chaos. America, which will you choose?”

The author Michael Dyson mentions that when O.J. Simpson was cleared of the murders of his ex-wife and her friend Ron Goldman, “it was a “racequake” that revealed the fault lines that stretched beneath our national life.” He explains that O.J.'s trial came on the heels of a tragic acquittal of four white policemen in 1992 for the savage beating of Rodney King in 1991. He puts it into context by framing his point in stark terms: “Many whites were outraged and shocked that Simpson could get away with murder, while at the same time Black people cheered and celebrated Simpson's acquittal like it was Christmas in October.” He explains in very blunt, easily understood terms for his targeted audience that the point, white America, is this: “No amount of evidence against Simpson could possibly match the far greater evidence of the historical racial injustice which has been perpetrated against Black people in this country.” The assault of Rodney King at the hands of the LAPD in March 1991 is seen as a grave injustice witnessed worldwide. The most remarkable event happened during the height of the riots that occurred after the officer's acquittal charged with his assault. Despite having sustained severe physical injuries that left him hospitalized, Rodney King simply asked, “‘can't we all get along?”D’ in a tearful and emotional appeal to Angelenos everywhere.” At its core, there may be no more concise and straightforward illustration of what reparations, restorative justice, and reconciliation between white and Black Americans are all about.

Pretending not to see race or color is not the way to address racism; it has the opposite effect. Pretending not to see race is a denial of the historical struggles, challenges, and consequences of being Black in America, and it denies the call and needs for racial justice. If you cannot see race, you cannot see racial responsibility; if you choose not to see race, you choose not to accept the reality of racism and remain blind to the advantages that being white continues to afford white people in the United States while simultaneously ignoring the debilitating effect of more than two centuries of enslavement on Black Americans.

B. It's been a long, a long time coming, but I know a change is gonna come, oh yes it will

There is a silver lining. The Founding Fathers created a masterful political document that remains unchanged, despite our inability at times to fully live up to the core principles and values enshrined therein. The framework and legal authority found in the Constitution comes from the idea that the Rule of Law applies to everyone equally, and it has been amended to reflect that ideal. The Supreme Court held in Regents of University of California v. Bakke that a university's use of racial “quotas” in its admissions process was unconstitutional, but a school's use of “affirmative action” to accept more minority applicants was constitutional in some circumstances. The Court upheld the Fifth Circuit's decision nearly forty years later by stating that strict scrutiny should be applied to determine the constitutionality of the university's race-sensitive admissions policy. These cases demonstrate that the Court fully understands its role must be that of an active participant to reconcile, how it can amend, through reparations. If America is to live up to its belief that all men are indeed created equally, then the law, our American law, must be used to correct historical mistakes.

The full payment for all the adverse effects of the legacy of slavery may be impossible and may never be entirely realized. The idea of paying for reparations and acknowledging the real need for genuine reconciliation is frightening for white America. This is not a fear that the country might somehow lack the ability to pay for them, as much as it is an acknowledgment of what reparations represent. Paying reparations will finally force white America to critically and honestly assess the value of its most sincerely held beliefs: pride in America's remarkable heritage, remarkable history, values of liberty, values of freedom, and gratification from our standing in the world. America can face the truth to ask what it owes its most vulnerable citizens only by willingly being brutally honest, accepting the conclusions reached, and accepting the answers provided that self-assessment brings. America can no longer look away and ignore the sins of the past, present, and future. Reparations and reconciliation summons us all to reject the attraction of arrogance and hubris and see America as it really is, the work of fallible humans trying to make a more perfect union and do what we must to “finally get along.”

J.D. Candidate at St. Mary's University School of Law, May 2022. B.A. University of Texas San Antonio, 1992.