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Excerpted From: Zinaida Miller, The Injustices of Time: Rights, Race, Redistribution, and Responsibility, 52 Columbia Human Rights Law Review 647 (Winter, 2021) (368 Footnotes) (Full Document)


ZinaidaMillerOn June 4, 2020, Rep. Barbara Lee (D-CA) introduced a House resolution calling for the establishment of a U.S. Commission on Truth, Racial Healing, and Transformation to “properly acknowledge, memorialize, and be a catalyst for progress.” The resolution was introduced during the transnational Black Lives Matter protests in the aftermath of George Floyd's brutal murder by police and a year after the Judiciary Committee of the House of Representatives held a historic discussion about slavery reparations. In response to the latter, a House hearing on H.R. 40, the Commission to Study and Develop Reparations Proposals for African-Americans Act, Senator Mitch McConnell resisted the notion that the past required any present reckoning. He declared: “I don't think reparations for something that happened 150 years ago, when none of us currently living are responsible, is a good idea.” He followed up his declaration by citing the Civil War, civil rights legislation, and the election of President Barack Obama as proof of how the United States had already appropriately addressed the “original sin of slavery.”

Taken on their own terms, bills calling for commissions of inquiry and reparations appear chiefly as efforts to memorialize or compensate specific past harms. Yet they equally concern the present. While Senator McConnell's remarks can be understood as a rebuttal to the notion that the slave past requires any further resolution or repair, they are at the same time an argument about current responsibility, benefit, and harm. Neither McConnell's remarks, H.R. 40, nor Rep. Lee's 2020 bill are solely or even primarily about the preservation or memory of the past. Rather, they are assertions about how that past should inform the ways in which resources, power, and rights are distributed today. That debate yokes together the legal and political production of the past with the radical racialized inequality of the present.

McConnell's position--that U.S. law and policy has already solved the problem of slavery--directly opposes the argument of the Black Lives Matter movement and its allies that present-day inequalities reflect and reproduce the legacy of slavery. The Movement for Black Lives Vision Statement, for example, stresses the need for reparations not only for colonialism, slavery, and segregation but also for redlining, mass incarceration, and other present-day forms of racial violence. The final line of Senator Lee's resolution suggests that a Truth, Racial Healing, and Transformation Commission would contribute to “eliminating persistent racial inequities.” These formulations of the present as both continuous with, and an unresolved legacy of, the past appeared in a different form in the 1619 Project from The New York Times, which commemorates the legacy of slavery by deliberately linking past enslavement to present-day health inequities, educational segregation, and cultural theft. Along with many others, these advocates call for the redistribution of resources and power based in part on the multiple failures of courts and policymakers to recognize the continuities of past racialized dispossession. Those defending the current dispensation do so by severing the past from the present. Each position reflects a series of decisions about the reproduction of racialized inequality, the role of law in correcting or addressing it, and the degree to which current beneficiaries of unequal systems should yield some of their intergenerational privilege. The fulcrum of debate is not whether to discuss the past or not but rather how to define it and what it means in and for the present.

These debates about the past and present are limited neither to the United States nor to transitional justice institutions. Instead, arguments like the debate over the relevance of slavery for inequality today reflect what this Article identifies as a transnational legal phenomenon: stakeholders mobilizing pasts of racial and ethnic dispossession and violence to argue for or against specific arrangements of both material and symbolic resources in the present. In doing so, legal and political arguments alternately assert the importance of the past, attempt to differentiate the past from the present, or foreground one past over another. Each approach brings with it a different story of how the current distribution of power and resources evolved and how it can be altered for the future. Moreover, since radically opposing positions on the redistribution of wealth or power today can be supported by invoking the past, that invocation comes with possible costs: for example, support for institutions that excavate the past with a progressive agenda may not undo an unequal status quo. To elucidate these points, this article examines four cases: the United States, South Africa, Canada, and Israel/Palestine.

These cases expose different versions of a parallel phenomenon: the significance of the past for addressing racialized and national inequalities today. Together, they reveal what is at stake in choosing to foreground or background the past in legal decision-making. The narration of the past justifies different and often competing positions on economic, political, and legal arrangements in the present. In the United States, the debate hinges on whether the wrongs of slavery were resolved by constitutional and political processes or if they are a continuing factor in racial inequality today. In South Africa, some advocates argue that the struggle to address the apartheid past during the constitutional process had the consequence of freezing and possibly exacerbating longstanding economic inequality. In Canada, the debate pivots on whether the genocide of Indigenous people ended or if it continues today. Finally, in Israel/Palestine, the debate over how to resolve the conflict has largely hinged on whether the past is the necessary starting point for negotiations or too fraught to consider at all. Each case addresses a central question: under which conditions will a reinvigorated focus on past injustice promote or obstruct the possibility of meaningful political, legal, and economic transformations?

The dissonances between claims to racial resolution and the lived reality of material and racial inequality have become an overarching feature of legal and political argument in each site. Fierce struggles take place over the question of whether systems of violence and dispossession--like slavery, apartheid, conquest, or genocide--are completed and closed or continue in an unbroken chain. Courts and policymakers offer competing accounts of the past and of its resolution to justify different rules for the distribution of resources and power. They do so by identifying progress, continuity, or regression; by embracing the success or failure of government inquiries designed to excavate the past; or by expressly separating equality claims in the present from dispossession or violence in the past. Advocates and activists similarly endorse or condemn particular interpretations of the past to support different arguments for (re)distribution. Inescapably, pasts of settler-colonialism, slavery, apartheid, and genocide inform the present. What remains unsettled is whether those pasts constitute completed events, ongoing legacies, or continuous presents.

In areas of race and ethnicity, the language of time is central to legal debates over fairness, equality, and the distribution of resources and power. It is no accident that legal scholar Michelle Wilde Anderson uses the phrase a “new Time Zero” to describe a fundamental disagreement in U.S. law and politics over whether the racialized nature of U.S. property rules was “reset” through changes such as the establishment of the Fair Housing Act. Debates over inequality and emancipatory agendas today do not take place only in terms of contests between democratic socialism and chastened liberalism or in terms of tax policy or economic rights. They take place in the temporal vocabularies of justice, redress, and the reproduction or continuation of violence and dispossession. As a result, they link evaluations of present inequality and future redistribution to past injustice.

This Article proceeds in four Parts, each of which identifies predominant arguments and counter-arguments about the relevance of a particular past for the current arrangement of resources and power in a specific site. Part I analyzes U.S. court judgments on affirmative action and reparations by examining the invocations of a racialized past and an unequal present in both majority and dissenting opinions. The dominant thread in these judicial opinions is that the history of slavery is increasingly irrelevant to decisions about resources today and should be, at best, left to memorials and statues. For this argument, the past serves as evidence for the progress narrative of American history. The counter-argument asserts that the question is not whether the past of chattel slavery should affect legal and political decision-making today but how: as an intergenerational transmission of wealth and deprivation, a longstanding singular trauma, or an unresolved set of interlocking harms, including theft, economic exploitation, physical and sexual violence, and erasure of identities. Each potentially yields a different legal response.

The South African case study, discussed in Part II, exposes a crucial fault line between those who view the new constitutional order as part of a successful break with the past and those who understand it as reinforcing continuous inequality. For those defending the potential for greater socio-economic equality achieved alongside or through the 1996 Constitution, South Africa's famous democratic transition in 1994 and the Constitution itself marked a transformative legal shift--even if a necessarily incomplete one. For those arguing for greater, faster, or different modes of redistribution, the very notion of transformation represented a regressive politics based on ignoring the colonial past. This argument suggests that the transition failed to adequately redistribute resources, and the focus on closure might be a way to avoid the economic implications of the past. These critics use the Truth and Reconciliation Commission and the Constitutional Court's judgments to argue not merely that attention to the past did not go far enough, but also that the very recognition of the past in a partial manner facilitated an ongoing failure to adequately redistribute resources and end economic apartheid.

Part III turns to Canada, where the National Inquiry into Missing and Murdered Indigenous Women and Girls found the Canadian state responsible for Indigenous genocide. That conclusion came in the aftermath of a Truth and Reconciliation Commission (TRC) finding that the Indian Residential School system not only inflicted brutal racialized physical abuse on Indigenous peoples but also constituted “cultural genocide.” The ensuing popular and legal battles over the “appropriate” usage of the term genocide revealed the material stakes of how the past is raised in the present--and how recognition and redistribution do not always coalesce. For scholars and advocates who viewed the two inquiries as establishing a common story of continuous violence and dispossession, the remedy required is not only reparation or reconciliation but also decolonization. For Indigenous activists, an express admission by the Prime Minister that the recent murders and disappearances of Indigenous women, girls, and two-spirit persons constituted acts of genocide has had little material effect on conditions of poverty, violence, and resource exploitation. A decolonial approach would have redistributed power relations and resources between the settler and Indigenous populations in any number of ways. By contrast, for those who viewed the TRC as correctly locating genocidal acts in the past, the direct remedy was fulfilled through a combination of closing the residential schools (prior to the TRC opening) and distributing reparations payments to individuals.

Part IV describes the ways in which negotiations between Israelis and Palestinians were structured from 1993 onwards by a decision to sever the past from conflict resolution on the grounds that discussing the past was itself too provocative. For those defending that decision, negotiations had to begin in the present in order to avoid getting mired in unresolvable historical arguments. That theory was made concrete in the Oslo Accords, which were premised in part on the notion that only by excising the past from discussion of present distribution could any agreement be reached. The most extreme version of this came in January 2020 when the Trump Administration announced a peace plan entirely structured around making permanent an unequal situation legally understood as temporary. Cutting off the past made it possible to use the current distribution of land, resources, and power as a model for the future. As a result, opponents argued, it silenced claims for redistribution that were based on a history of dispossession.

The Article concludes by reflecting on some possible challenges of arguing for contemporary redistribution by invoking the past. This is not to dismiss calls for remediation, for tracing beneficiaries over time, for memorializing past violence, or for framing inequality as a legacy of past oppression. To the contrary, the cases analyzed here all demonstrate in different ways the critical need to reflect upon heinous histories, racialized violence and dispossession, and the reproduction of structural inequalities over time. The constraints discussed here are offered as prompts for further discussion by fully engaging with the potential benefits and limitations of contesting distribution in the present through the past, advocates can better assess their own strategies and arguments. The Article concludes in this spirit of productive exchange.

[. . .]

For those seeking to challenge the political, legal, and economic arrangements of the present, it sometimes appears self-evident that excavating an unjust, racist past will remedy an unequal, racist present. When violent racialized pasts have been actively ignored, quieted, severed, or apparently resolved, reasserting that past becomes its own political struggle. As this Article demonstrates, the work of remembering is taking place in legal and political forums around the world. Advocates have demonstrated the power of centering the past for comprehending the radical injustice of the present and for justifying the redistribution of power and resources.

The case studies, however, also reveal the complexities of foregrounding the past in battles over the distribution of power and resources in the present. Both sides of a given contest--those wishing for a radical change to present circumstance and those advocating for reformist or conservative agendas-- mobilize the past for their own benefit. In this sense, the contest is not over whether the past is relevant but over which past is represented in legal judgment, government policy, and social movements, and how precisely that past is understood to influence the present. The present might be the legacy, afterlife, reproduction, or continuation of the past. The present might also be a triumph over the past, reflecting a progress that negates or overcomes past oppression. These varying positions suggest varied legal and political responses. They reveal the tremendous responsibility of legal institutions for producing, characterizing, and mobilizing the past in ways that have direct material consequences.

[. . .]

The material and political connection between the unequally violent past and violently unequal present has reemerged in powerful forms in the Black Lives Matter movement in the United States and beyond. Growing calls for both reparation and redistribution were reignited after the murder of George Floyd and the protests and reckonings that followed it. The movement brought these struggles once more to the fore by emphasizing the reproductive nature of intersectional, racialized violence and inequality. In doing so, the Black Lives Matter movement picked up simultaneously on critical contemporary conversations about global (in)justice and on post-Cold War debates over the ways in which focusing on the past might inform or obstruct revolutionary redistributive projects.

Many of the predominant arguments in law and politics about the need to address present inequality use the past as a source of legitimacy and justification: the material and symbolic scales must be balanced because of the legacies of the past or, indeed, because the past never ended. Today's inequalities are continuously both justified and opposed based on past events. The many sites of contestation discussed here reveal the ways in which the vocabulary of time shapes arguments about justice. The questions of whether the past is, in Faulknerian terms, past at all, whether it can be or has been resolved, whether it can be sealed off with the appropriate accounting, and what practices would make that plausible, are, in the end, arguments over how societies have distributed harm, privilege, resources, and legitimacy.

Assistant Professor of International Law & Human Rights, School of Diplomacy and International Relations, Seton Hall University.

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