[*PG1]THE SPIRIT OF REPARATION
Abstract: This Article, the author of which presented the opening and closing remarks and served as moderator for the Boston College Third World Law Journal s reparations symposium, explores reparations for slavery from a spiritual perspective. It briefly traces the history of reparations for African Americans, beginning with General William Tecumseh Shermans Forty Acres and a Mule field order in 1865 and moving through Reconstruction and Jim Crow. The Article next examines the connection between the crimes and injustices of slavery and the current plight of African Americans, arguing that monetary reparations are a viable solution and should be targeted toward Blacks who have failed to succeed economically. The author maintains, however, that the primary purpose of monetary reparations is spiritual rather than practical; America must make a tangible sacrifice in order to heal successfully the nations deep wounds of shame, anger, and hurt from the legacy of slavery. The Article concludes with a call for the current generation to address Americas unsettled and unreconciled history through reparations.
Reparation1 is deeply rooted in the American legal system. All first-year law students during their course in contracts are made aware of the contractual injury of unjust enrichment.2 The legal remedy for unjust enrichment is restitution, one of the three main remedies for [*PG2]contractual breaches.3 Reparation, though generally thought of as applying to collective or group remedies, is merely another form of the historic and accepted remedy of restitution. Some authors have persuasively demonstrated how restitution, and thus reparation, in addition to their longstanding legal tradition, have deep spiritual roots within various religious traditions.4 Thus, our culture and our legal system have a long-standing affinity with these remedies. There are numerous examples in which these remedies have been applied in both individual and group situations.5
[*PG3] Yet when this remedy is considered in the context of Americas participation in the slave trade and slavery, it becomes an alien concept; reparation not only appears inappropriate, it is also labeled as divisive and self-serving. Despite this resistance, the idea of reparations for African Americans for the atrocities and unjust gains of slavery and the slave trade has now reached center stage. This prominence is due in large part to recent lawsuits that have been filed against corporations, and against governmental entities.6 But reparations for African Americans is not a new topic or issue. It has always been with us, yet we have always managed to keep it locked up in the closets of our collective consciousness. Thus this symposium issue, which contains articles from distinguished scholars and lawyers who have been intimately involved with this topic,7 is a bold attempt to ensure that reparations remains a topic for serious discussion, debate, and hopefully implementation. As we go through the difficult and technical issues related to reparations in the context of American slavery and racism, it is important not to lose sight of the spiritual dimensions and realities of this remedy within this context. For if understood properly, we could begin to see that reparations, like all legal remedies, are attempting to do more than just transfer resources from one party to another. The legal system, through its system of remedies, is also trying to address deep wounds and restore broken relationships. If there is a compelling scenario where physic wounds and broken spirits exist, it is within the collective experience of slavery and racism in America. Reparations, despite its long delay and its numerous procedural and substantive challenges, offers this nation a great opportunity for spiritual cleansing.
Formal discussion about reparations for African Americans dates as far back as 1865 when General William Tecumseh Sherman issued a special field order that set aside tracts of land in the sea islands and around Charleston, South Carolina for the exclusive use of Black peo[*PG4]ple who had been enslaved.8 In less than half a year, the ownership of the land reverted back to Whites.9 Thaddeus Stevens sponsored a bill in 1867 for the redistribution of land to African Americans, but it was not passed.10 In the years that followed, society engaged in a massive campaign of subjugation and intimidation throughout the South in order to keep African Americans in their prescribed social place, instead of addressing the economic, social, and educational atrocities of slavery.11 Reparations dropped off the radar screen. In its place arose a deliberate movement of regression and oppression. Laws that were intended to bring about equality were used to reinforce the existing inequality that slavery had produced.12 For centuries this inequality, injustice, and [*PG5]even murder was rationalized away in court decisions and in public discourse. Only in 1954 with the Brown v. Board of Education13 decision did the U.S. Supreme Court finally recognize that substantive equality was nonexistent for Black people in the field of education.14 This interpretation of the Fourteenth Amendments command was applied to other areas.15 With the exception of affirmative action, the approach to addressing the history of racism, segregation, and slavery has been a neutral principle approach. But an individualized neutral principle approach does not correct for past collective and systemic deprivations. To injure humanity in the way that slavery and the slave trade did and expect it not to have an impact on human development and progress is simply unrealistic. To place on top of centuries of injustice and unjust enrichment a series of neutral laws only drives the injury deeper into the collective souls of a people and hampers the ability of the nation to reach its full potential.
Therefore, the reason reparation is needed now is because it was not provided in 1865 or any other time thereafter. There have certainly been appeals16 and discussions, and there have been small ex[*PG6]amples of reparations for specific acts of discrimination and violence, such as in the Rosewood case where in 1994 the Florida legislature passed a bill to compensate victims and their heirs for the 1923 destruction of a small Black town and the murder of many of its residents.17 There was also the recent 1997 vote of the Oklahoma state legislature to compensate survivors and descendents of the victims of the 1921 Tulsa race riot, where about 300 Black people were killed and striving Black businesses were destroyed.18 But these are mere ex[*PG7]ceptions to the general approach that the American legal system has taken to a long history of racial injustice.
The long delay has allowed opponents to characterize the appeal for reparations as a laughing matter or an extreme political position, as opposed to a serious social dilemma and an appropriate legal remedy. The delay even makes liberal and progressive lawyers and legal scholars have doubts about the appropriateness of this approach.19 Though some accept the fact that racism is still with us, and that slavery was a horrible experience and a stain on Americas historical landscape, they still are able to distance themselves from those wrongs because the injustice seems so long ago, and, some believe, so much has already been done to correct the problem. The problem is that so much of what has been done has had very little to do with the underlying wrong and the conditions it created. Most of the laws that were passed in the 1960s and 1970s were aimed at preventing discrimination and segregation from continuing and providing individual relief when it did happen.20 But very little, if anything, has been done to correct the original harm or to compensate people of African descent for the original injury. This society has clothed itself in a blanket of equality and social justice rhetoric, yet when one peels away the layers one finds underneath a system of inequality that has created distinct and different societies within the midst of one nation.21 So many of the problems that vast numbers of African Americans face today are a direct outgrowth of this [*PG8]history of slavery, segregation, and discrimination. Unless one wants to hold fast to a theory of racial inferiority,22 there is no other explanation for why infant mortality rates and incarceration levels are all higher for African Americans, and the life expectancy rate is lower.23 Whatever negative social indicator you choose, African Americans find themselves at the bottom of the list. This is not an accident. Though some have escaped these invisible chains, many have been left behind and are trapped in cycles of crime, poverty, and disillusionment. This is not just a problem for Black people; this is a challenge for the entire nation.
In a society where the economic power and well-being of a group determines so much of its social, physical, and educational well-being, there must be economic solutions and remedies. This will never happen through an individualized civil rights approach to justice. We can not level these playing fields with marginal remedies that do not go to the heart of the problem. Certainly money alone will not cure these social injuries, but without a major infusion of economic resources into the social wounds that this society created through laws and customs, we will not only remain a separate nation, but we will never fulfill the true calling of this nation. Many African-American children are attending public educational institutions that are in need of enormous resources and new ideas about learning and achievement.24 [*PG9]Progress will not occur through the normal incremental budgeting process at the local or state level. Any viable reparations claims must address these educational, economic, and social issues through whatever judgment is rendered or legislation enacted.
Therefore, funds and resources must be targeted toward African Americans who have failed to succeed economically. The most compelling claim for reparations, centuries after the initial violation occurred, is made by those who are still locked out of this countrys dream despite years of legislative initiatives. Reparation is for children in urban areas who will not be able to leap over poverty, crime, and hopelessness in a single bound. It is for families who, despite their efforts, have been unable to break the chain of generational poverty and limited dreams.
Yet the real reason for reparation extends beyond financial compensation and redress. Embodied in the reparations movement and decision is an opportunity for this country to release itself from the psychological bonds of social and individual guilt and unresolved shame. Reparations can also serve to free Black people from the spiritual bondage that this society still subtly imposes. When this nation chose in 1865 and again in 1867 not to provide reparations to newly freed Africans, it not only postponed an appropriate legal remedy, it also placed a psycho-spiritual chain around the heart and soul of this nation. Despite the efforts of the Civil Rights movement, this chain has never been broken. This nation is still trapped in spiritual chains of indifference, guilt, and shame. Each generation has learned to live with these spiritual chains, to cover them up, to rationalize them away, or to deny that they even exist. To cover up the shame and guilt, some developed theories of inferiority to justify slavery and segregation.25 Others use the present dysfunctions that exist in some Black communities to rationalize away any responsibility for this countrys treat[*PG10]ment of Black people in the past.26 So many White Americans bathe daily in these rivers of denial that water the soil of this land. Yet the spiritual heart of this nation is still mired in the sins of the slave trade, slavery, and years of subjugation, lynching, and murder. Buried deep in the crevices of this nations consciousness is the stark and brutal truth of this human tragedy. I am not suggesting that a large amount of money can free us from this pattern. The money is as much symbolic as it is substantive. It is an act that must come from the heart of this nation and not just from its coffers.
This society is trapped spiritually in a race conundrumthere appears to be no escape from it. Discussions about race and racism are still among the most uncomfortable and emotionally charged conversations to have in this country. Even among individuals who share similar political perspectives, there often remains an underlying tension and tentativeness. Many Blacks and Whites who worship and praise the same god choose to do so in separate churches, temples, and mosques. There is a wall, a spiritual and psychological wall, that still separates us. Something drastic must happen to alter our understanding of the past and deepen our commitment to a common future. I believe that reparations could serve this purpose.
From a spiritual perspective, in order to reconcile people or groups that have been torn apart, something must be sacrificed. Professor Bell, in his seminal text, Race, Racism and American Law, eloquently made the point that Black people in this society have been the involuntary sacrifice to keep various groups of Whites united in this society, and to bring about a sense of equilibrium between competing political perspectives.27 The time has come for Black people and their rights to cease to be the sacrificial lambs to bring about reconciliation in this country.
This quest for reparations, therefore, is as much a spiritual quest for reconciliation as it is a substantive demand for resources. For the sacrifice is meaningless if society gives up something that is of little value. Words alone will not break these spiritual chains. Even legisla[*PG11]tion, if it does not dramatically alter existing positions and serve as a sign of repentance, will not serve as the spiritual sacrifice that is so desperately needed. In various religious traditions the seriousness and sacredness of sacrifice is deeply understood and enacted. God tested Abraham to see if he would sacrifice his son in order to be more connected to God.28 The Torah is filled with commands and instructions about sacrifices, especially when people have violated or failed to comply with sacred law.29 Christians believe that Jesus was the sacrificial lamb to bring humanity back in line with divine order. 30 What will America sacrifice to bring about the long overdue reconciliation between those who suffered because of this crime against humanity and those who benefited from it?
The conundrum is that in America, it is difficult to sacrifice financial resources when we dont value those who will be the recipients of those resources. Many will oppose reparations for African Americans because they cannot see the underlying wrong, or the value in redressing those who claim they were wronged. Reparation dollars may still, therefore, prevent this society from being released from the invisible badges and incidents of slavery.31 Let us hope that this will not be the response of the courts or Congress to these latest appeals to break our spiritual chains. For these mental and spiritual chains that we all still carry around with us must be released in this generation. We must, in this generation, release into the universe a true spirit of justice and respect. We must release into the universe ideals of forgiveness and repentance. Let us release into the world a balm to heal the wounds of a nation broken long ago. Reparations [*PG12]contains within it that spirit. It has the potential to be that balm in Gilead32 to heal the sin-sick soul of this nation.
There are numerous legal hurdles that stand in the way of any reparations claim. Many of these hurdles, like causation, statute of limitations, and class limitations, will be thoroughly discussed in the companion articles to this symposium issue; therefore I will not venture to address them here.33 In addition, there are major concerns about how one would administer and distribute resources if these claims are deemed meritorious. Yet it is important that we not allow these issues and hurdles to blind us to the substantive and spiritual merit of reparations claims.
Yet some may ask, why now? The answer is, why not now? Dr. Martin Luther King once asked the question at the end of the Selma to Montgomery March, How long? How long would it be before Black people would receive the right to vote and be truly free? He answered his own question by saying, not long.34 Thirty-four years after his death it is still too long. Though his optimism proved right in regards to changes in the voting rights laws, it did not prove right in regards to changes in underlying conditions. We have all paid a high price for this delay. The spiritual challenge facing this nation is whether we will continue to pass this burden on to future generations, or whether we will once and for all make racial justice and healing a national priority. As some of the symposium articles eloquently indicate, we are facing one of those rare moments in the life of a society where we can choose to reverse centuries of injustice, or we can allow these legal and procedural hurdles to blind us to our social, moral, and spiritual responsibility. May the following articles, and our sobering reflection on the past, serve as a catalyst for us to remove our blinders and vividly see the limitations and unlimited potential of this nation.