II. The Political Dimension

The elimination of all legal avenues of relief will, we can be confident, place great emphasis on political efforts to achieve the same results. These efforts will in turn take place in two distinct arenas. First, there will be efforts to induce the Congress of the United States, and perhaps even individual states, to make reparations or apologies, perhaps on the model that was done with respect to the Japanese who were inexcusably interned during World War II. Second, there will be efforts to reach private parties whose operations were tainted by slavery, segregation, or both, just as in African American Slave Descendants. I think that the political efforts at compensation will go nowhere, but may engender a fair bit of bitterness along the way. The private efforts will produce stranger results, as the new initiative of Brown University is likely to show. Here are some of the particulars. In dealing with efforts to obtain compensation from governmental entities, the first puzzle is why the primary action takes place at the federal level. Here the obvious culprits were the Southern states who practiced slavery until 1865 and perhaps some of the Northern states which had abolished it at some earlier time. With respect to claims against the states, an obvious point is that we do not have to enmesh in struggles those states that entered the Union only after 1865 and thus had no part in any of the earlier practices (except perhaps as territories, which is a complication that I shall happily skip). But here it takes a major effort to remove any of the symbols of the old confederacy, and it seems likely that resistance to any reparations program will be the fiercest in those situations where the case for action is likely the strongest. It is, however, easy to see that those who still bear grudges for the "War of Northern Aggression" will be ill-disposed toward such claims, while the recent arrivals to these states will think it odd that they are taxed for actions done by others long before they arrived. The situation will get only more complicated because other groups that believe that they have fair grievances, such as for the horrible treatment given to Chinese immigrants to the United States, will wonder why they are classified as wrongdoers and not victims. It is just not possible to achieve these efforts one state house at a time.

So we think about nationwide claims, but these too are in turn subject to real difficulties. Over 300,000 northerners, many of whom were black, were killed during the Civil War in the successful effort to end slavery. Their descendants could think that they have paid reparations in blood and do not wish to go further. Next to them stand vast numbers of individuals who regard themselves as wholly unrelated to the wrongs in question and are asked to foot some fraction of the bill, while their own grievances remain largely unredressed. Such is the difficulty whenever a claim to reparations appeals to some principle of vicarious liability. All claims for vicarious liability necessarily affect individuals who were not responsible for the wrong in question: think only of the operation of the law of vicarious liability in tort. But in many cases vicarious liability is tolerated on the ground that the liability in question has some efficiency justification, such as the reduction of accidents that would otherwise take place. Vicarious liability is often approved because it eliminates the need to prove the negligence in hiring or supervision that was present in the particular case. But here there is no efficiency peg on which to hang the reparations claim, so that hordes of indignant taxpayers will rise forward asking, "why should my tax dollars go to compensate for wrongs that I did not commit?"

The second problem arises on the plaintiff side of the equation: Who should get the dollars in question? Any state-wide program is haunted by the problem of migration, which makes it likely that much of the cash would go to the wrong people. But even at the national level, the situation is a lot different from when Bittker wrote about these matters back in 1973. There have been generalized programs of affirmative action and special education, so that the open wound left by Plessy has healed somewhat, except in the eyes of those who are determined to keep any scab from forming. A program of reparations could easily take into account collateral payments, which is done of course in connection with the 9/11 compensation program. The United States has committed huge remedial resources for affirmative action programs and for general social welfare programs to aid the needy, and there is no doubt that a substantial fraction of those expenditures have gone to help individual African Americans. Do these programs count as reparations when they were originally understood as social welfare measures? Do they count as a credit against any reparation claim that could be asserted? The answer is hard to say, one way or the other. But unless someone comes up with a convincing explanation of why all the positives since 1954 should be disregarded, the claims for reparations will stall on the obvious ground that many political steps have already been taken in that direction. It would be a tragedy of national proportions if claims for reparations to all or some blacks were to interfere with other programs that tend in the same direction but lack such a divisive social quality. There is too much water over the dam for this reparation claim to have any traction, even in a Democratic administration. There is much that could be done in individual cases, such as when President Clinton apologized to the human subjects who were mistreated at Tuskegee. But the most likely upshot is that the arguments for reparations will be used as bargaining chips to maintain the level of affirmative action programs that were found to meet a compelling state interest in Grutter v. Bollinger.

The next question is whether there is any chance that reparations claims could be addressed to private parties. Here it is an open secret that just about every major private institution in the United States fears the tarnish to its good name that comes from a credible assertion that it is racist. I think that corporations are often so timid in how they proceed on these questions because they fear that any revelation of improper conduct will result in a massive loss of good will and increased levels of regulation from Congress. They will not be willing to undertake mea culpas that look to the past and ignore all that they have done on affirmative action and similar topics for the last forty or so years. I do not think that we should ask the various corporate defendants who were unsuccessfully sued in African American Slave Descendants to make endless mea culpas, for to do so is to start down a road that has no endpoint at all. In addition, I don't think that it will be easy to shame these corporations into making such declarations in the absence of specific proof of recognizable wrongdoing to identifiable persons. The most that can be expected are bland declarations that X company has been a good corporate citizen that is responsive to African American interests in the communities that it serves. But we get that right now, even from Wal-Mart. The upshot is that the reparations campaign will continue to sputter along. It may generate a few more contracts, jobs, and grants than before, but it will not crystallize into any political groundswell.
The situation with Brown University and its striking initiative is quite different. Non-profit organizations with liberal constituencies and University Presidents can do things that larger corporations must shy away from. In my view, Brown is wholly within its rights as a private institution to conduct whatever internal investigation that it chooses into its own past and to initiate whatever corrective program that it chooses. It is all the more admirable because this particular move is not made in response to any external efforts. I am happy, however, that as a member of the faculty at the University of Chicago, founded in 1891, I will not have to face the prospect of such a hearing. My fear is that such efforts will come to little good.

The first point to note is that the initiative starts on the wrong foot. The emphasis is too introspective. Ruth Simmons may be worried about explaining to herself that her great-grandparents were slaves. She should relax, or at least keep Brown out of it. The true story, moreover, is all to the good, for it highlights the enormous capacity of the United States to correct for its past wrongs through a tortuous political process. How many other nations can claim that members of a despised minority of one generation can see their great-grandchildren rise to join its social elites? One only hopes that the Brown program will give due credit to that enormous transformation as part of its larger engagement with the issue. But here I fear that this will not happen. The announcement made to the Brown community notes that President Simmons asked the committee "'to organize academic events and activities that might help the nation and the Brown community think deeply, seriously, and rigorously about the questions raised' by the emerging national debate over slavery and reparations." It notes further that "[a]t the time of Brown's founding, Rhode Island was the epicenter of the North American slave trade," which seems odd given the prominence of Charleston, South Carolina in that business in 1764, the year of the founding.
It is fine to sponsor lectures on an issue that should be discussed and debated anyhow. But the entire committee process suggests that Brown is to some extent complicit in these activities and ought to do something to purge itself of the wrong. To me, that course of action is a mistake, for the business of universities is teaching and research, and I just don't believe that actions that concentrate on the Rhode Island slave trade will have such results. The great fear is that the efforts at absolution will magnify the relative level of wrong and understate the powerful forces at Brown and elsewhere that opposed slavery in all its forms and worked fearlessly and with great effort to stop its activities. It is worth remembering that there was no single national position on slavery during the period of its existence. In our efforts to give prominence to the institutions that supported slavery, there is the danger that we shall overlook the individuals who were able to bring the issue to a halt.

So why do we have these efforts at self-examination? Here I think that they say as much about the present as they do about the past. Until the passage of the Civil Rights Act of 1964, the Civil Rights Movement marked the single most heroic achievement of the American past. Its great accomplishment was to make sure that all individuals had equal rights and liberties under law. That is a result that can be applauded by people of all political persuasions, and it does us well to remember that it took the better part of two centuries to end practices that were unalloyed disasters. But since 1965 the Civil Rights Movement has suffered from "the March of Dimes" problem. Once you have rid the nation of polio, what do you do for an encore? The civil rights equivalent is that the fall of segregation ended the struggle against obvious human rights violations. In its place came complex debates over antidiscrimination laws, affirmative action programs and the like. The old allies could no longer hold together the coalition, for some people believed in the colorblind principle and opposed affirmative action, while others (like me) believed in the importance of liberty and private voluntary associations, and accepted affirmative action but were hostile to the enforcement of many of the civil rights laws as an unwarranted limitation on freedom of contract. Brown, it should not be forgotten, took a heroic but futile role in its modest attack on Title IX, involving matters of sex discrimination in interscholastic sports.

Against this fractured background, we can see in the movement for reparations more of a political than a financial cause. It is an effort to reinvigorate the old struggle for civil rights by appealing to an issue on which it is possible once again to assert a profound moral unity. But this campaign to relive the present through the past will surely fail. We do not face slavery or segregation. There is no support anywhere in this nation for a return to either practice. The effort to place reparations front and center ignores that time has shifted the locus of our current concerns to a new set of issues that will not be resolved by reliving the horrors of an early generation in some collective or official capacity. We have to live life going forward. We cannot make collective amends for all the wrong in the past. But we can create new and unnecessary hurts by trying to remedy past wrongs. A divisive campaign for reparations will undercut the efforts that we all want to make a stronger, more vital, more productive and more caring nation.


[1]. James Parker Hall Distinguished Service Professor of Law University of Chicago Law School, Peter and Kirsten Bedford Senior Fellow, The Hoover Institution