[*PG139] TROUBLING SETTLED WATERS: THE OPPORTUNITY AND PERIL OF AFRICAN-AMERICAN REPARATIONS
Abstract: This Article explores the theme of troubling settled waters, which represents the impact of African-American reparations on the current landscape of race relations in America. The Article outlines the current and historical debate over reparations, addressing the arguments of opponents who contend that reparations dialogue and action wastes intellectual and monetary resources, unnecessarily resurrects painful memories, and creates racial division. It also takes note of contemporary reparations efforts in the courts, as well as the theories and bases for this litigation. The Article concludes that, given the continuing pervasiveness of race and race issues in modern America, reparations are a welcome and important opportunity for achieving civil rights goals.
Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me.
African-American reparations has emerged as one of the predominant civil rights issues of the new millennium. It is the subject of [*PG140]salubrious debate. Like the affirmative action debate, the subject of reparations has created a furor. Reparations proponents demand that the government, private individuals, and corporations provide remedies to African Americans for the unlawful and horrific acts inflicted on African Americans during slavery and the Jim Crow era, and for the unjust enrichment wrongdoers obtained.2 Reparations proponents argue that reparations constitute Americas unpaid and long overdue debt to African Americans for involuntary servitude, wrongful death, segregation, theft, conversion, fraud, Jim Crow forced labor, false imprisonment, personal injury, inadequate medical care, familial destruction, and housing discrimination. In sum, the demand is based on denials of Due Process, Equal Protection, equal employment, and equal educational opportunity. Put another way, reparations advocates are seeking redress for unconstitutional deprivation of life, liberty, property, and the pursuit of happiness.3
In contrast, reparations opponents contend that reparations discourse and demands for reparations unnecessarily trouble settled waters. In their view, reparations discourse creates racial and ethnic strife by resurrecting painful memories that Americans would rather forget. Reparations opponents further argue that the reparations debate wastes sparse intellectual, social, political, and economic resources that African Americans should direct elsewhere, that it focuses on ancient claims, blames inappropriately present day white Americans for the sins of their deceased ancestors and racial blood group, [*PG141]and holds African Americans captive to an undeserved and debilitating victims image.4
In sum, reparations proponents and opponents disagree sharply on two issues: 1) whether present day problems experienced by African Americans are connected to past racially motivated, unlawful, and inhumane acts, and 2) whether present day efforts to alleviate those problems should seek redress from sources connected to Americas unfortunate racist history. Accordingly, African-American reparations raises a host of issues about racial progress and racial disparities in the United States.5
This Article examines these troubling issues. It concludes that the intractable racial disparities between African Americans and white Americans require drastic civil rights measures like reparations. Furthermore, notwithstanding dire predictions, African-American reparations demands will not topple the republic. History demonstrates that this great democracy was born out of, and can survive, much troubling.6
The African-American reparations movement has emerged as a major civil rights issue of the new millennium. The movement dominates the national debate on racial equality. The reparations debate [*PG142]has yielded enormously profound and provocative scholarship,7 has produced significant media coverage,8 has resulted in litigation,9 and has generated an abundance of controversy.10 In terms of prominence, the movement for African-American reparations has shared center stage with the movement for enhanced corporate social responsibility. As I have argued elsewhere:
The movement for African American Reparations and the movement for corporate social responsibility have a point of intersection. At that point, the two generate a profound, salubrious, and comprehensive discourse on two of the most powerful forces in American liferace and the corporation. These two subjects, taken together, define, prescribe, or legitimize every aspect of our society and economy, and play critical roles in the formulation of our social, economic, and political agendas.11
Thus, it is not surprising that the African-American reparations movement has gained traction in the last few years. Nevertheless, the focus on corporate social responsibility is only part of the explanation [*PG143]for the reemergence of the debate over African-American reparations after a relatively long hiatus from the national agenda. At the core of the explanation for the prominence of the African-American reparations issue are the continued disparities between white Americans and African Americans, and the recent success of other groups in securing reparations.12
Overwhelmingly, the most critical factor in the reemergence of reparations debate is the continued significance of race in American life. Race matters and has always mattered.13 As I have previously argued, Race is an inescapable determinate of every aspect of American society. Consequently, there is a constant, if not increasing, socioeconomic disparity between the races.14 In this sense, Professor William J. Wilsons major thesis that race is declining in significance has proved to be premature at best, and invalid at worst.15
The movement for African-American reparations has captured the attention of African Americans in particular and of all Americans generally, regardless of their political or economic background.16 Legislators, scholars, civil rights advocates, and even senior citizens17 have focused much attention on the issue and have become strong adherents or opponents of African-American reparations.18 After a relatively [*PG144]obscure existence,19 the issue of African-American reparations has ignited a firestorm and has resurrected debates about race, slavery, Jim Crow, civil rights, affirmative action, apology, and racial disparitiesincluding the wealth disparity between white Americans and African Americans.20 The issue has critical mass.21
The national Reparations Coordinating Committee (RCC) has filed a lawsuit against the Governor of Oklahoma, alleging deprivation of Equal Protection under the Fourteenth Amendment to the U.S. Constitution during the infamous Tulsa race riot, and seeking damages for restitution and repair of the injuries sustained by [plaintiffs] or their relatives from the actions and inaction of the agents of the [s]tate of Oklahoma and the [city of Tulsa] for acts they commit[*PG145]ted during and in the aftermath of the Riot.22 Like European Jews under the genocidal Nazis reign, African Americans during the Tulsa race riot were murdered, beaten, injured, deprived of property, and evicted forcibly from their residences, businesses, and town by armed white thugs.23 The complaint alleges significant government malfeasance and nonfeasance in the events.24
Moreover, the RCC filed Farmer-Paellmann v. FleetBoston Financial Corporation25 as the first of many corporate reparations lawsuits.26 The plaintiff alleges that the corporate wrongdoers should surrender what they have unjustly held for centuries.27 Farmer-Paellmann was filed against three of the nations largest corporations, Aetna Insurance, CSX Railroad, and FleetBoston Financial Corporation, alleging corporate conspiracies to commit slavery and other crimes against humanity, conversion, and unjust enrichment.28 This lawsuit embraces many of the theoretical bases of African-American reparations.29 The complaint alleges that FleetBostons predecessor-in-interest, Providence Bank, benefited financially from the international slave trade.30 The complaint further asserts that Providence Bank financed and profited from the slave trade by lending substantial sums to its founder, Rhode Island businessman John Brown, a notorious slave trader, and collected custom fees due from ships transporting slaves.31 The plaintiff alleges further that CSX is a successor-in-interest to numerous predecessor railroad lines that were constructed or run, at least in part, by slave labor.32 In addition, the lawsuit alleges that Aetnas cor[*PG146]porate predecessor unjustly profited from the institution of slavery by insuring slave owners against the loss of their human chattel.33
Thus, plaintiffs in Farmer-Paellmann contend that reparations are due because African Americans have been systematically deprived of life, liberty, and property through inhumane enslavement and significant de jure and de facto racial discrimination dating back to the 1600s.34 African Americans were captured, kidnapped, auctioned like cattle, raped, slaughtered, lynched, assaulted, whipped, beaten, set upon by dogs, humiliated, starved, experimented upon, worked to death without compensation, and separated from their families. The institution of slavery deprived African Americans of their languages, religions, traditions, and cultural background. African Americans were denied the right of citizenship, the right to vote, and the right of property ownership. Furthermore, African Americans were denied basic personal autonomy in decisions relating to residence, employment, education, religion, marriage, and procreation. This savage practice produced the super-wrong.35 The racially motivated atrocities were deliberate, systematic, and lengthy; the results were intentional and inter-generational. Most Americans, regardless of race, have little comprehension of slavery and the continuing impact it has on American culture.36 As the Farmer-Paellmann suit illustrates, it was not just southern plantation owners that benefited from the slave trade, but also the government and non-plantation businesses that played critical roles, generating immense profits and taxes from the business of slavery.37
If reparationists demands and the ensuing controversy were solely about slavery, then the case for reparations would be simpler. Advocates, however, seek reparations for periods during and after slavery. Indeed, they seek reparations for the period from the official end of slavery to the present.38 They demand reparations for the racially motivated acts and segregation during the lengthy era of Jim Crow (from the end of Reconstruction to the 1970s) and the wealth, health, educational, and other racial disparities associated with those acts.
In his compelling and provocative book The Debt: What America Owes to Blacks, TransAfrica founder Randall Robinson passionately articulates the position of African-American reparations supporters:
It is, again, not that affirmative action concepts are wrong-headed. They indeed are not. They should remain in place. But such programs are not solutions to our problems. They are palliatives that help people like me, who are poised to succeed when given half a chance. They do little for the millions of African Americans bottom-mired in urban hells by the savage time-release social debilitations of American slavery. They do little for those Americans, disproportionately black, who inherit grinding poverty, poor nutrition, bad schools, unsafe neighborhoods, low expectation, and overburdened mothers. Lamentably, there will always be poverty. But African Americans are overrepresented in that economic class for one reason and one reason only: American slavery and the vicious climate that followed it. Affirmative action, should it survive, will never come anywhere near to balancing the books here. While I can speak only for myself, I choose not to spend my limited gifts and energy and time fighting only for the penny due when a fortune is owed.39
The concept of a debt underlies the views of reparations proponents. African-American reparations are dueindeed long overdueon the debt owed to African Americans for centuries of racially motivated wrongs committed during the periods of slavery and Jim Crow. Accordingly, as Professor Ogletree states: This is not a situation of someone sitting at the mailbox waiting for a check . . . . That trivializes the broad purpose. The real point is to put closure to a very sorry period in our history.40
Reparations opponents contend that although the case for reparations is profound, the objections to it are similarly intense.41 Some reparations opponents, like Professor Loury, contend that African Americans have more to lose than to gain from seeking reparations be[*PG148]cause the hostility toward reparations is just as intense as it is against racial preferences.42 In the view of many reparations opponents, focusing on reparations is an engagement in wishful thinking. The potential for white backlash is another basis for opposition to reparations. In response to the view that reparations will bring closure to the painful history of racial discrimination against African Americans, reparations opponent and Boston Globe columnist Jeff Jacoby cautions:
Closure, however, is the one thing a great debate on the subject of reparations is assuredly not going to provide. Far from calming racial grievances, it will only inflame them further . . . . A national campaign for a vast transfer of wealth from whites to blacks is not going to make things better.43
There is a critical division between the two camps. On the one hand, proponents view African-American reparations as the opportunity to eradicate racial disparities and all vestiges of slavery and Jim Crow. On the other hand, opponents view African-American reparations as fraught with peril. In other words, the parties differ sharply on whether reparations discourse, demands, legislative efforts, and litigation unnecessarily trouble settled waters.
Since this Article contends that the disagreement over reparations talk44 is a dispute about troubling settled waters, definitions of troubling, settled, and waters are necessary. First, the term troubling, for purposes of this Article, means acts employed to challenge the status quo in order to eradicate racial disparities. Second, the term waters refers to the United Statesits people and its institutions. Third, the term settled represents a state of full racial equality, integration, tolerance, and harmony in the union. The Declaration of Independence, the First Amendment to the U.S. Constitution, and the Emancipation Proclamation all proffer elegant definitions of settled.45 It is the state when, in the eloquent words of the Reverend Martin Luther King, Jr., African Americans will not be judged by the color of their [*PG149]skin but by the content of their character.46 Simply stated, it is the state when race does not matter in America.47
If the waters are settled as described above, then African-American reparations are unnecessary. If the waters are settled, reparations represents a clear and unnecessary peril. The settled state described above, however, is a significantly different one than the present state of the union. It is therefore justifiable for reparations proponents to pursue African-American reparations.
In Grutter v. Bollinger, which upheld affirmative action in educational institutions, Supreme Court Justice Sandra Day OConnor acknowledges that: in a society, like our own . . . race unfortunately still matters.48 In an earlier article, I similarly asserted that race still matters centuries after white America forced African Americans into slavery.49 Professor Guinier captures the complexity of races role in society:
Few would dispute that race as a universal biological category or as a generic and unassailable social signifier is a fiction or a fraud. But race matters as a function of context. When we use the term race, we may mean physical race, social race, cultural race, and/or political race. Race is not necessarily limited to what you look like; it may implicate what you look like in conjunction with your lived experience as an individual associated in our culture and our classrooms with others similarly situated.50
Race is, without question, a pervasive feature of American society that affects our social, political, and economic interactions.51 Americans and their institutions are organized according to racial norms and hierarchies.52 This has led some to conclude that racial equality is an un[*PG150]realistic goal.53 Race is at the core of American democracy and has had a central role throughout this nations history.54 Indeed, the history of America is a history of racial division and animosity.55 Race dominates our social order.56 It determines everything from life expectancy57 to identity.58 Finally, it is important to understand that race is a complex concept that undoubtedly influences our collective experiences and perspectives; it is much more than skin color or ancestry.59
Hence, the ideal of a settled America is significantly different from the current state of the union. For this reason, reparations discourse and demands present the opportunity to change America from a country where race critically matters to one where race matters insignificantly. The waters are not settled and reparations troubling is appropriate.
Reparations proponents and opponents are essentially renewing a centuries-old debate about the proper means, timing, and pace of racial equality, and the causes of the racial disparities. I previously examined the issue of the causes of todays racial disparities and concurred with reparations proponents that present racial disparities are linked to past racially motivated acts occurring during slavery and the Jim Crow era.60 Reparations opponents argue that African Americans face no greater burdens than any other Americans.61 Thus, according to reparations opponents who believe that African Americans have already achieved complete equality, it is unfair to seek redress from todays Americans who did not own slaves.62
The current debate over troubling settled waters is an old one. It is a conflict over different philosophical approaches to the goal of racial equality for African Americans. Throughout history, some have cautioned that African Americans will best achieve equality in a deliberate, non-confrontational manner.63 Others contend that present racial disparities justify a more confrontational and impatient agitation on the part of African Americans.64
Similarly, during slavery, some argued for a moderate pace of change, with the idea that full racial integration could only be achieved over time.65 More activist African Americans, however, advo[*PG152]cated for direct action.66 They believed that the only way to achieve emancipation and integration was through vigorous and uncompromising demands.67 Moral speech would not be enough to persuade racists,68 and no slave owner would voluntarily relinquish the benefits of slave ownership.69 Furthermore, white Americans would not even associate with African Americans on an integrated level.70 To think otherwise, argued activists, was naive.71
At some level, the Civil War was a war about the appropriate pace and process of African American emancipation and integration.72 Even the abolitionists argued over the issue of the pace and process of emancipation.73 The contentions included the radical, violent views of John [*PG153]Brown,74 to the more moderate views of the majority of abolitionists who wanted to change the hearts and minds of white men slowly.75
The debate over the pace and progress of integration gained momentum during the brief Reconstruction period and during the Jim Crow era. Debates between the eloquent former slaves Fredrick Douglass, who would accept nothing less than complete equality, and Booker T. Washington, who believed in accepting some forms of racial segregation, typified the dispute.76 This debate over differing approaches to integration continued throughout the Jim Crow era.77
Subsequently, we witnessed a resurrection of the debate over the appropriate pace and process of racial equality during the modern Civil Rights period, which included such voices as Dr. Martin Luther King, Jr., Malcolm X, Eiljah Muhammad, leaders of the Black Panthers, and others.78 Dr. King believed that a slow and non-confrontational ap[*PG154]proach, but with direct actions, would be most effective.79 Others argued that a more aggressive, even violent approach was the best means of achieving racial progress.80
Today, we are in the midst of the same debate. African-American reparations present both opportunities and perils, just as demands for racial equality did in the past. Todays fears regarding reparations are the same historical fears of white backlash and racial division. Just as in the past, there are opportunities to eradicate intractable racial disparities, such as the wealth gap.81 It is to the discussion of the opportunities and perils reparations present that this Article now turns.
The provision of reparations to African Americans will help achieve the ultimate civil rights goali.e., full racial equality.82 There has always been hesitation over how to accomplish the civil rights objectives of African Americans; nevertheless, on balance the perils of reparations are not so new or significant as to warrant cessation of the reparations effort. The fact that the first racial discriminatory acts occurred in the past (for example, from 16001863),83 does not mean that one should ignore current manifestations of racially motivated [*PG155]old and new injuries. Were that the case, the recent tobacco litigation and settlements would have failed.84 Furthermore, in response to those opponents who insist that all present problems are the result of self-inflicted injuries of African Americans (e.g., teenage pregnancy), the moral and legal bases for reparations claims are actually stronger than those of the tobacco litigation claims. Reparations claims are based on injuries suffered due to slavery and Jim Crow laws and norms, all of which were imposed involuntarily on African Americans. Tobacco claims, however, arose from many adult smokers risky, voluntary behavior.
Moreover, reparations claims will not tax todays white Americans for the sins of deceased white Americans any more than income taxes improperly tax all Americans in order to reduce national deficits created by deceased Americans. Reparations claims do not blame todays white Americans for the sins of deceased white Americans any more than reparations claims of interned Japanese Americans blamed todays white Americans for the shameful conduct of federal government officials during World War II.
Finally, reparations discourse and demands do not waste sparse resources. The issues reparations raise are critical to African Americans. Reparations discourse seeks to address the underlying causes of racial disparities, and to develop concrete, long-term solutions for them. In view of the disparities between whites and African Americans, it is difficult to imagine an effective and legitimate national civil rights agenda without the inclusion of the underlying issues reparations raise.
Reparations discourse and demands may well cause racial and ethnic division and may resurrect painful memories that Americans would rather forget. This is not new. The struggle for African-American civil rights has been long and difficult and has often been the source of tension and divisiveness. Social change always comes with discomfort. Equal opportunity in America is always worth the costs.
Notwithstanding the trepidation of reparations opponents, African-American reparations discourse and demands are significant issues that warrant substantial public attention. I share Professor Westleys view that there is an enormous benefit to reflection and debate on African-American reparations, even if such reparations never [*PG156]become a reality.85 The conversation itself is worthy of pursuit. Admittedly, theoretical and practical issues abound about the propriety and feasibility of reparative measures. Nevertheless, Americans must address the thorny question of persistent disparities between white and black Americans. In particular, we must focus on the widespread perception and reality of racial inequality in this country.
Reparations may well expose the ugly side of America. Yet only through exposing the ugly side of America and examining proposals for change have we historically been able to reveal Americas greatness. The subject of African-American reparations will provide the necessary public scrutiny to explore the persistent significance of race in America and proposals for change. I am quite confident that the republic shall survive that exploration.
* ( 2004, Alfreda Robinson, Associate Dean and Associate Director of the Litigation and Dispute Resolution Program, The George Washington University Law School. B.A., The University of Chicago, 1973; M.A., The University of Chicago, 1976; J.D., The George Washington University Law School, 1978. I am enormously grateful to Dean Michael K. Young, The George Washington University, and The Sloan Program for the Study of Business in Society for exceedingly generous institutional support. I am indebted immeasurably to Boston College Law School (March 2003), Critical Race Theory Workshop (Am. U. 2003), and Eighth Annual LatCrit Conference (Cleveland 2003) for the opportunity to present earlier versions of this work. Finally, I am incalculably indebted to young scholars Monise A. Stephenson (J.D. 04, G.W.U.) and Young Cho (J.D. 04, G.W.U.) for their outstanding research, editorial, and technical assistance. ?? ??