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David Lyons

Excerpt from:  David Lyons, Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow , 84 Boston University Law Review 1375-1404, 1375- 1378, 1386-1397 (December, 2004) (167 Footnotes Omitted)

Chattel slavery was a brutally cruel, repressive, and exploitative system of racial subjugation. When it was abolished, the former slaveholders owed the freedmen compensation for the terrible wrongs of enslavement. Ex-slaves sought reparations, especially in the form of land, but few received any sort of recompense. The wrongs they suffered were never repaired.

No one alive today can be held accountable for the wrongs of chattel slavery, and those who might now be called upon to pay reparations were not even born until many decades after slavery ended. For some scholars, the lack of accountable parties makes current reparations claims preposterous. Such reactions are understandable, but they do not settle the matter.

My concern in this paper is not the legal but the moral merits of reparations claims. If we think of such claims as referring only to chattel slavery and as calling for transfers among individuals, these claims face serious difficulties, which I discuss in Part I. Recent legal claims, however, diverge from that pattern by seeking recompense from corporations for their complicity in chattel slavery, or from governmental bodies for their responsibility for more recent wrongs. Although no claim has yet been successful, if such suits were to succeed, they would bring some measure of relief and vindication to current claimants, but they would fail to address the conditions that underlie reparations claims, namely, deeply entrenched systemic conditions that require large-scale corrective programs. The current legal claims do, however, suggest a useful shift in thinking about reparations.

We need first to look more broadly at U.S. history, and second to remind ourselves that racial subordination was not primarily a matter of private arranging but essentially a matter of public policy. Chattel slavery was only the first stage of institutionalized racial subordination. Some freedmen left the rural South, but most ex-slaves remained in the South and entered another form of peonage, as tenant farmers or sharecroppers, in a new system of racial subordination. After a brief, aborted period of Reconstruction, slavery was followed by Jim Crow, another brutally cruel, repressive, and exploitative system of racial subjugation. Jim Crow was maintained until the recent past. Those systems imposed massive deprivation, required sustenance from racist ideology, and left a legacy of disadvantage and indignity.

Most obstacles to validating reparations claims can be avoided by shifting our focus: (a) from reparations for wrongs of the distant past to reparations for wrongs that continued under Jim Crow and persist today; and, (b) from limited transfers of property to comprehensive public programs capable of addressing the persisting legacy of slavery and Jim Crow.

Part II gives reasons for regarding current claims as timely rather than concerned only with injustices of the distant past that can no longer be rectified. For two hundred years, the federal government embraced policies that supported slavery and Jim Crow. It endorsed, in effect, a Racial Subjugation Project. At crucial junctures in our history, the government chose not to prevent or repair those wrongs. Although it finally condemned slavery and Jim Crow, it failed on both occasions to address their inequitable consequences - a deeply entrenched, substantial gap between the life prospects of whites and blacks. The federal government is reasonably held accountable for the persisting legacy of those wrongs.

Part III suggests how the legitimate concerns that underlie current reparations claims can be addressed by a National Rectification Project, grounded upon public policies at the federal level. It also suggests how such a project can be justified by uncontroversial principles of political morality that are central to avowed public policy. Our society places great emphasis on individual responsibility and competition. Fair competition requires equal opportunity. This is particularly true for children who will have little opportunity to develop into adults capable of competing and taking individual responsibility if they are not provided with good housing, strong communities, and a healthy physical environment. The federal government has an obligation to rectify wrongs in which it has been significantly complicit and therefore is morally obligated to undo past policies that have ensured a lack of equal opportunity for children. A comprehensive set of programs dedicated to ensuring this opportunity would address most if not all of the legitimate concerns manifested by reparations claims.

As this paper regards the federal government's support for slavery and Jim Crow as part of a continuing history of wrongs, it refers to the morally required rectification not as reparations, which are usually thought of as addressing past wrongs, but under the broader heading of corrective justice. Although corrective justice is sometimes understood as restoring a condition that existed prior to the wrong, such an understanding is not appropriate here. For a brief historical period, the initial wrongs of slavery might have been rectified by freeing, compensating, and returning enslaved Africans to their homes. That time has long since passed. Those Africans who were forcibly brought here and their descendants became founding members of American society. Corrective justice now requires addressing the legitimate claims of African Americans.

. . .

II. The Role of the Federal Government

We normally assume that a government can retain a morally relevant identity for a very substantial period of time, that its acts and practices are subject to moral appraisal, and that it can be held accountable for its past acts. Governments have often accepted accountability for their prior acts and have paid reparations even after significant changes have been made in their character, personnel, laws, and policies. Thus, the United States government has accepted accountability for the Tuskegee syphilis experiment and the World War II internment of Japanese Americans, and it has paid reparations accordingly. I shall assume here that the federal government can be regarded as an accountable party in such matters, and in this section I will explain why it is reasonable to hold the federal government accountable for the life-prospects gap between blacks and whites.

The story is briefly this: Just as the North American system of chattel slavery had not been imposed by the British government on its colonies but was constructed and color-coded by the colonies themselves, at crucial junctures in its history (from its founding through the twentieth century) the federal government found itself obliged, time and again, to confront the question of racial equality. Its overall responses - its resulting policies and practices - have been gravely deficient.

I do not mean merely that we can now, in retrospect, imagine different directions that might conceivably have been taken. Alternatives were understood well enough by those who made the relevant decisions. Alternative outcomes would have been difficult to achieve, in part because the interests of those who would be adversely affected by the decisions (African Americans most directly) were not represented by those who made them (the colonial elite, the founders of the republic, et al.). That does not refute my point about accountability. To see this, it may help to consider the history that is reviewed below in the light of a more recent case. By the time of the 1942 Wannsee conference in Nazi Germany, it had been decided to exterminate Jews, Roma, and others. The conference participants understood the alternative well enough, and the road taken was not unavoidable in a way that excludes them (and others) from responsibility for genocide. In a parallel way, the federal government is morally accountable for its support of a deeply entrenched racial hierarchy and its failure to repair the consequences of slavery and Jim Crow.

A. The Eighteenth Century

The traditional story of the constitutional framing is that, in order to achieve a settlement that would secure a viable union of the newly independent states under a capable central government, it was necessary for the North to compromise its anti-slavery principles. An interesting aspect of the story is that, as early as 1787, anti-slavery sentiment was perceived as a threat by Southern states. Anti-slavery arguments had in fact been circulating in the colonies since 1700 and had spread increasingly as the European Enlightenment influenced colonial thinking. During the War for Independence, European allies of the rebels had pointedly noted the inconsistency between the colonials' human rights rhetoric and their maintenance of chattel slavery. By the time of the constitutional convention, three Northern states had abolished slavery, three had enacted gradual emancipation statutes, and three others were about to follow, as would three of the states that were soon to be carved out of the Northwest Territory. Anti- slavery sentiment was significant in the Upper South, especially Virginia and Maryland.

The traditional story assumes that anti-slavery sentiment was adequately represented by Northern delegates to the constitutional convention. However, the delegates who attacked slavery, such as Gouverneur Morris of Pennsylvania and George Mason of Virginia, were vastly outnumbered. Northern delegates largely represented commercial interests, who derived profits from the slave system and exerted no significant pressure against slavery. Delegates from New England almost always voted with the Lower South (especially Georgia and South Carolina) when it sought protections for slavery. The possibility of abolition was, however, not beyond the ken of the convention delegates.

Furthermore, it is unclear that all of the constitutional supports for slavery were needed for an agreement among the states. The Lower South was not in the best position to wrest concessions through hard bargaining. Georgia and South Carolina wanted a central government strong enough to aid them against powerful Native American nations, and Georgia was concerned about its southern border with Spanish Florida. Although the representatives from the Northern states could have pressed the slavery issue, the convention agreed without great difficulty to provisions that supported slavery - a fugitive slave clause, a bar (for at least twenty years) against interference with the slave trade, and added representation for states with substantial numbers of slaves. If Northern delegates had actually represented anti-slavery sentiment, the slave states might have agreed to a constitution that tolerated but did not so vigorously support slavery. The federal government instead became committed in law and policy to that institution.

B. The Nineteenth Century

The next crucial set of federal decisions concerning slavery and its legacy were made at the end of the Civil War. Andrew Johnson supported the maintenance of a racial hierarchy. Over his veto, and for a decade thereafter, Congress endorsed civil rights legislation and aid to poor whites and blacks through the Freedman's Bureau. It laid down requirements for new state constitutions, including universal male suffrage and acceptance of the Fourteenth Amendment, and it mandated equal access to public accommodations.

But the federal government's commitment to reconstruction soon faded. After the Hayes-Tilden agreement of 1877, federal troops were withdrawn from Southern capitals and federal supervision of Southern elections ended. Supreme Court decisions undermined the civil rights acts and the Fourteenth Amendment. Even more crucial, however, was the federal government's failure to endorse a redistribution of Southern land, which was needed to secure economic independence for the freedmen, end the planters' control of Southern society, and make democratic reform possible.

Freedmen recognized their own just claims for land and agitated for a modest allotment. Their proposals were supported by some poor Southern whites, by some agents of the Freemen's Bureau, and by some political leaders. During and immediately after the war, some land was given to them, but most of that land was soon restored to its former owners or sold to others. Most significantly, Congress rejected Thaddeus Stevens' proposal for confiscation and redistribution.

The First Reconstruction was thus aborted. Over the next generation, through force, fraud, terror, and various legal devices, blacks were driven from political participation. Neglecting its responsibilities under the amended Constitution, the federal government declined to intervene. Most freedmen became sharecroppers on land that had been restored to its original owners. To secure racial subordination, lynching became increasingly frequent (up to three a week during the 1890s). No longer valuable private property, blacks could be killed with impunity. White supremacy was thus violently re-established and, during the most intense period of lynching, Jim Crow was sanctified by the Supreme Court's 1896 decision in Plessy v. Ferguson. Anti-lynching legislation, frequently proposed, never survived in Congress. The United States had officially committed itself to civil and political rights for blacks, but it failed to enforce those rights. It made a promise that it did not keep. African Americans were betrayed, and a brutal white supremacist regime was allowed to replace chattel slavery.
C. The Twentieth Century

The Jim Crow system survived into the second half of the twentieth century. Following the Supreme Court's decision in Brown v. Board of Education, the federal judiciary began systematic enforcement of blacks' constitutional rights. Congress enacted significant civil rights legislation, including the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Fair Housing Act of 1968, and the Equal Employment Opportunity Act of 1972.

During this period, acknowledgment of widespread poverty in the United States led to a "War on Poverty," including a number of programs funded all or in part by the federal government, such as food stamps, Medicare (for the elderly and disabled), Medicaid (for poor children and some adults), Supplemental Security Income (serving needy aged, disabled, and blind), the Comprehensive Employment and Training Act of 1973 (subsidizing low wage jobs in non-profit and public settings), and Head Start (preschool program for disadvantaged children), and some existing programs were expanded, such as Aid to Families with Dependent Children ("welfare"). Because of African Americans' disproportionate share of economic disadvantages, such programs are relevant here.

The Second Reconstruction, like the first, secured important changes in public policy. Racist ideology was officially rejected. Openly racist appeals became unacceptable for mainstream political candidates and explicitly racist comments were banished from public policy statements. Anti-discrimination laws were once again enacted, but this time the courts upheld their enforcement. Opportunities became available for blacks in politics, education, skilled trades, and the professions. Overt discrimination and anti-black violence were reduced. Unlike the public policy changes of the First Reconstruction, those of the Second have come to seem irreversible.
Once again, however, federal commitment to many of the reconstruction programs soon faded. By the early 1980s, government policy had reduced interventions on behalf of blacks and government assistance was reduced. Nutritional, educational, medical, employment, and housing programs that were developed in the 1960s faced cutbacks, which were severe by the 1980s and are worse today. The real benefits of Medicare and Medicaid have been reduced. New construction of affordable public housing has virtually ceased. Federal subsidies for low-income families to rent private housing have decreased. CETA programs have ended. Eligibility for food stamps has been restricted. AFDC has been terminated; its replacement, Temporary Assistance to Needy Families, sets lifetime limits on receipt of aid, requires more work from mothers of young children, and denies four-year college study as a means to improved employment. Despite increased work requirements, the government has failed to provide for adequate child day care.

More importantly, the adopted measures failed to address the deep, systemic inequity left by slavery and Jim Crow. African Americans entered the Second Reconstruction with life prospects substantially lower than that of their white counterparts. Since then, conditions have in some respects improved, but a substantial gap continues. As of 1996, for example, life expectancy was 76.8 years for whites and 70.2 years for blacks. Blacks had significantly inferior access to health care. Blacks experience significant disadvantages in the labor market. In 1994, for example, the unemployment rates for blacks and whites were 12.0% and 5.4% respectively. More significantly, in 1994 the median net worth of whites and blacks was $52,944 and $6,127 respectively, and the median net financial assets of whites and blacks were $7,400 and $100 respectively. At every income level, blacks' net worth is a fraction of whites'. At most income levels, blacks' financial resources - funds available in case of lay-offs, serious illness, and other emergencies - are substantially less: zero or negative. Twenty-five percent of white households lack such financial resources, but sixty-one percent of black households are in that potentially disastrous predicament.

As equity in private housing constitutes the main component of wealth for most American families and the wealth gap appears crucial to the perpetuation of the black-white life prospects gap, public policies affecting the acquisition and appreciation of housing are of special importance here. Prior to the Second Reconstruction, employment discrimination was not merely tolerated but was practiced by government at all levels. Such discrimination generated a black-white income gap, which affected African Americans' ability to purchase homes. Other government policies, however, have greatly promoted home acquisition by whites while inhibiting it for African Americans. Many of those policies promoted residential segregation.

The black urban ghetto was created by the migration of blacks to urban areas and periodic housing shortages that resulted from exclusionary actions by private parties and policies of local officials and federal agencies. One such policy was "redlining," which identified black neighborhoods within which home purchase and home improvement loans were denied or interest rates inflated. Redlining was embraced by federal agencies, such as the Home Owners Loan Corporation, the Federal Housing Administration, and the Veterans Administration. Federally supported "slum clearance" programs intensified ghetto conditions. Many public housing projects, typically high-density, were located within or adjacent to existing ghettos. As the projects accommodated fewer ghetto dwellers than slum clearance displaced, more pressure was placed upon housing in the ghetto. Public housing authorities employed segregation policies that further promoted black isolation. When the federal courts ordered the housing authorities to reform, funding for public housing was halted. Congress enacted a Fair Housing Act in 1968, but only after it was stripped of enforcement provisions. When such provisions were added by the Fair Housing Amendment Act of 1988, the federal government declined to enforce them vigorously.

Blockbusting and "white flight" can occur only when some communities are maintained as white domains. Federal and local governments funded and constructed new highways to serve white suburbs. When overt housing discrimination was prohibited, realtors developed covert measures to divert black renters and home buyers from white communities. Such unlawful practices can be identified, but because of law and federal policy, private, non-profit organizations have had the burden of combating them. Their "audits" of such practices have been effective, but their number was substantially reduced with the end of CETA, which had supported a variety of community-based anti-poverty jobs.

By 1940, the isolation of blacks within segregated urban communities was greater than had ever been experienced by any other ethnic group in America. Following World War II, as white suburbs expanded and African Americans of all income levels were excluded from white domains, urban black ghettos increased in size and density, giving rise to a degree of uniquely concentrated isolation that sociologists have dubbed "hyper-segregation." Hyper-segregation persists partly because of the continuing exclusion of blacks from white communities, partly because federal fair housing legislation has not significantly been enforced, and partly because public policies can adversely affect an established black ghetto without hurting a significant number of whites.

Poverty in the United States is most concentrated in the black urban ghetto. Social contacts with whites are minimized by the isolation of the ghetto, as are job opportunities and access to business networking opportunities. Most importantly, residential segregation promotes the black-white wealth gap. Public policies such as redlining have reduced the opportunity for blacks to acquire, maintain, and improve homes. African Americans who could afford the higher interest rates they were charged on housing loans have paid more than whites for homes of similar value, which has reduced their available financial resources. In periods of economic hardship, such as the 1930s and 1970s, "demand density" dropped dramatically in the ghetto, commercial outlets and services withdrew, buildings fell into disrepair and were abandoned, and crime and disorder increased. These conditions caused housing values to appreciate at a lower rate in black than in white communities, adversely affecting blacks' net worth and their ability to borrow in order to invest in educational and business opportunities.

The effects are transgenerational and profound. "Nearly three-quarters of all black children, 1.8 times the rate for whites, grow up in households possessing no financial assets. Nine in ten black children come of age in households that lack sufficient financial reserves to endure three months [without income, even at the poverty line], about four times the rate for whites." The life prospects of children depend more on parents' wealth than on their income. "Asset poverty is passed on from one generation to the next, no matter how much occupational attainment or mobility blacks achieve." As a result of the wealth gap, there is, between one generation and the next, both more downward mobility and less upward mobility for blacks than for whites. The policies that have promoted hyper-segregation have thus intensified the legacy of slavery and Jim Crow, and the results are not being challenged by public policies.

The foregoing review includes an incomplete but relevant description of the federal government's role relative to African Americans. The government's policies supported both slavery and Jim Crow. Since 1865, the government has violated or failed to enforce its own Constitution and legislative enactments for extended periods. In accepting violations of its own basic law, the federal government allowed the racial caste system to be reconfigured so that it could survive the abolition of slavery. It thereby enabled the entrenchment of inequities for African Americans in a new system - Jim Crow. It tolerated gross misconduct by officials, frequent public lynchings, rape, harassment, terror, and coercion - in other words, widespread, grievous violations of African Americans' most fundamental rights. Given the opportunity, it has more than once declined to undertake measures necessary to substantially rectify the long-standing inequities. Of course, this pattern does not fully describe public policy; but it has dominated public policy since the United States was established.

The federal government has thus been party to and partly responsible for the wrongs done to African Americans. It is the single most important currently existing party that can truly be held accountable to those who have suffered the wrongs of racial subjugation. The federal government is, furthermore, an appropriate recipient of moral demands for corrective justice because of the nature, scope, and magnitude of the inequities that remain to be addressed.

[1]. Professor of Law, Law Alumni Scholar, and Professor of Philosophy, Boston University.