A Bowdoin Professor Examines the issue of Reparations for African Americans
Story posted November 07, 2002
Reparations for slavery aren't a new idea. Since the Civil War there have been reparations efforts, beginning with "40 acres and a mule" and continuing up to the most recent efforts through the court system. In the last decade interest in reparations has really taken off. Recently, Visiting Assistant Professor of Sociology Calvin Moore took a look at the reparations movement from a sociological and legal perspective.
Slavery in the Americas began long before the United States was even a nation. In 1615 the first African Americans slaves were brought to the New World. One of three slaves perished in the journey, and those that didn't had a harsh and difficult life waiting for them.
"[These are] appalling tragedies in the history of humanity because of their barbarism and their magnitude," Moore said. "The dark shadow of slavery still hangs over African Americans....It created an ideology that cast African Americans as being inferior beings."
This ideology didn't end with emancipation. The slaves weren't given their true rights as citizens, and for the next 100 years, they lived under segregationist laws and politics.
A recent reparations lawsuit argued that there are 8 million slaves and descendents of slaves in the United States today. Blacks today still suffer from the effects of the injustice begun under slavery: they are victims of crime more often, have lower incomes and lower levels of education than other ethnic groups. This "pervasive sense of second-class citizenship" is a part of collective black memory, Moore said. And informs the efforts to attain reparations.
"Reparations means to repair - to right the wrong of slavery and this is the goal of the movement," Moore said. The challenge is to fit the moral aspect of righting a wrong into a workable legal context, he said.
The legal system works under a rather linear process: a wrong is committed, the perpetrators are identified, the victims are identified and the law finds a way to right the wrong that has been done. The law provides two frameworks for achieving this: torts and contracts.
A tort is a legal wrong. Under a tort, a wrong has to have been committed that caused harm to an identifiable victim. The perpetrator, if found guilty, is then supposed to put the victim in the position the victim would have been in if the wrong had never been committed. A complication of using tort law to bring about reparations is in defining a specific perpetrator.
Contract law is the other method for righting a wrong under the law. It means establishing that there was a contractual relationship between the parties - an agreement that was broken - and the party who broke the agreement would need to put the other person in the position he or she would have been in had the agreement not been broken.
"The trick is to take the facts of slavery and squeeze them into one of these paradigms," Moore said, "There are problems with that."
In earlier reparations efforts, lawyers argued under contract law that the wronged parties were the current generation of African Americans. They argued that the 1865 amendment to the Constitution that freed the slaves represented a contractual agreement that they would have the rights of U.S. citizens. The lawyers argued that in the 100 years between emancipation and when the Civil Rights Act took effect in 1965, the government broke the contract.
A problem with this argument came in the form of Affirmative Action, Moore said. The government has said that Affirmative Action was the contractual remedy for the initial violation of the contract. This argument fits within the legal paradigm, and the courts have been upholding Affirmative Action rulings since the 1960s.
Affirmative action cases, however, have largely been tort-based, so before a earning a ruling to force Affirmative Action, it was necessary to show that an intentional wrong had been committed, which made it increasingly difficult to win cases involving Affirmative Action and Civil Rights Violations.
The fact that it has become harder to prove a need for Affirmative Action could be part of the motivation behind the new reparations movement, Moore said. Because of this, the latest reparations movement has taken a different tack: It has shifted to focus on a quasi-contractual theory stating that the victims lawyers are litigating for are the victims of slavery between 1615 and 1865.
There was no written contract for these slaves, Moore said, but lawyers argue that there was an implied labor contract, and they want to courts to look back, imply that contract and enforce it.
"It's a contractual notion grounded not in the harm caused to us today, but in the harm caused to those slaves," he said.
Also giving strength to the recent movement are legal precedents on which the lawyers can base their arguments. Some of the precedents are as follows:
- Payments to Native Americans for treaty violations
- Reparations to Japanese Americans for internment during World War II.
- Payments to Holocaust victims
- Payment to survivors of the Rosewood massacre
- Paymentsto survivors of the Tuskeegee experiment
- Payments to the indigenous peoples of Canada
- Payments to the Maori in New Zealand
The courts, however, have argued that the precedents don't support the claim in the case of reparations because they all involved acts of legislations, meaning that the matter of reparations is a political, not a legal question and that it requires an act of the legislature to be rectified.
Problems with earlier reparations claims also involved the following defenses by the government:
- Native Americans have received payments because the treaties broken were laws. But from 1615 to 1865, slavery was legal, so no laws were broken. (That's why some lawyers now want to imply a contract. If a contract were implied, lawyers could argue that a law had been broken)
- The federal government can't be sued over slavery because of sovereign immunity and must consent to be sued. (This argument, again, makes reparations a question for the legislature.)
- The plaintiffs haven't been able to allege a concrete harm that was caused in cases in which they were claiming the current generation was the victim.
- Some of the violations alleged are more than 20 years old, which exceeds the statute of limitations.
Some current strategies to get around these legal barriers involve the following:
- Claiming "continuing violations" to get past the problem caused by the statute of limitations.
- Arguing the existence of an "implied promise" that the government should be held to. The implied promise made in 1865 of full citizenship under the law would suspend the statute of limitations.
- Getting the court to shift to an idea of group rights. Now the legal system is based on the idea of individual rights.
- Limiting the lawsuits to pre-Civil War acts by targeting corporations who directly benefited from slavery.
- Portraying current African Americans not as victims, but as heirs of lost wages.
Among the sociological questions that interested Moore were the whys and wherefores of the movement. Most legal scholars agree that lawsuits arguing for reparations have little chance of success in the court system, so why push for reparations?
He has several ideas on this point:
- Hubris: The majority of the lawyers involved are Civil Rights lawyers who "see the noose tightening" in terms of being able to prosecute cases. This gives them another soapbox and way of to displaying their legal prowess.
- Groupthink: Most of the lawyers involved are ideologues and very Afrocentric, and the minority voices against the fight for reparations are drowned out.
- Self Preservation: By keeping this issue in front of a national audience, they maintain their status as experts in the realm.
- Lingering Psychological Hurt: This, compounded by daily reminders of the indignities that African Americans have suffered, creates a need for catharsis.
- A Response to the Nihilism of Modernity: This is a way to seek an identity grounded in that of their ancestors.
Most of those involved in the reparations movement are members of the black, educated, middle class. Like nearly all subgroups, they fear the loss of their identity in an increasingly unified and homogenous world.
"They are finding that their identity doesn't matter. They are discovering that they want it to matter," Moore said. "[This movement] creates a very simplistic world of them and us, good and evil... and there's a comfort in that identity."
« Back | Campus News | Academic Spotlight | | Subscribe to Bowdoin News by Email