* Professor of Law & Law Alumni Scholar; Professor of Philosophy, Boston University. This paper derives from the author’s contribution to the Boston College Law School symposium on reparations sponsored by the Boston College Third World Law Journal, March 14, 2003. The author has subsequently completed a longer version of this Article, Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow (Boston Univ. Sch. of Law, Working Paper No. 03–15, 2003, Public Law & Legal Theory, at http://www. bu.edu/law/faculty/papers (last visited Oct. 24, 2003).
1 See, e.g., Plaintiff’s Complaint and Jury Trial Demand, Farmer-Paellman v. FleetBoston Fin. Corp. (E.D.N.Y. filed Mar. 26, 2002) (No. 02–CV–1862) (naming FleetBoston, Aetna, CSX, and 100 unnamed corporations as defendants). Other lawsuits stem from specific incidents within living memory. See, e.g., Plaintiffs’ First Amended Complaint, Alexander v. Governor of Oklahoma (N.D. Okla. filed Feb. 28, 2003) (No. 03–CV–133) (addressing the 1921 riot that devastated the Greenwood section of Tulsa).
2 See C. Vann Woodward, The Strange Career of Jim Crow 6–7 (commemorative ed. 2002). Under Jim Crow, public facilities and accommodations for African Americans were either separate and unequal or not available at all. See id. at 24–25. Economic and social discrimination was pervasive. See id. at 7 passim. Numerous means, including some that were plainly unlawful, were employed to exclude African Americans from the political process. See id. at 83–86. Thus, “racial subordination (or subjugation)” is more descriptive of the system than “racial segregation.”
3 See Brown v. Bd. of Educ., 347 U.S. 483 (1954); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). See generally Philip Dray, At the Hands of Persons Unknown (2002) (providing detailed accounts of specific incidents of lynching and discussing the social and political context in which they occurred); Robert L. Zangrando, The NAACP Crusade Against Lynching, 1909-1950, at 3–21 tbl. 1 & 2 (1980) (recounting the history of lynching, including data on lynchings by state and race and data on lynchings by year and race).
4 See President’s Comm. on Civil Rights, To Secure These Rights: The Report of the President’s Committee on Civil Rights 20–30, 35–40 (1947).
5 Starting, of course, with Brown, 347 U.S. 483 (1954).
6 Most notably the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. �� 2000–2000h (2000)), and the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. �� 1971, 1973 to 1973bb-1 (2000)).
7 Many of whom are alive today.
8 See Eric Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, at 235–36, 245–46 (1988).
9 See Manning Marable, Race, Reform, and Rebellion 152, 206–13 (2d ed. 1991); Douglas S. Massey & Nancy A. Denton, American Apartheid 230–31 (1993); Robin D. G. Kelley, Into the Fire: 1970 to the Present, in To Make Our World Anew: A History of African Americans 543, 599 (Robin D. G. Kelley & Earl Lewis eds., 2000). For example, the real benefits of Medicare and Medicaid have been reduced. Marable, supra, at 207. Federal subsidies for low income families to rent private housing (Section 8) have decreased. See id. at 209–10; Massey & Denton, supra, at 230–31. The Comprehensive Employment and Training Act programs have ended. Massey & Denton, supra, at 230. Eligibility for food stamps has been restricted. Deborah Harris & Patricia Baker, Mass. Law Reform Inst., Food Stamp Advocacy Guide 1 (1999). Under-use of food stamps by those who remained eligible after welfare reform has been caused in part by “[c]onfusion and misinformation on the part of eligibility workers, or their withholding of information.” Linda Burnham, Welfare Reform, Family Hardship, and Women of Color, in Lost Ground: Welfare Reform, Poverty and Beyond 43, 48 (Randy Albelda & Ann Withorn eds., 2002). Aid to Families with Dependent Children has been eliminated; 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. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified in scattered sections and titles of the U.S.C.); see Kelley, supra, at 599. Despite such work requirements, the government has made woefully inadequate provision for child day care. See Kelley, supra, at 599.
10 For example, in 1994, the unemployment rates for whites and blacks were 5.4% and 12.0% respectively. Harry J. Holzer, Racial Differences in Labor Market Outcomes Among Men, in 2 America Becoming: Racial Trends and Their Consequences 98, 100 (Neil J. Smelser et al. eds., 2001) [hereinafter America Becoming II]. The median net worth of whites and blacks was $52,944 and $6,127 respectively, and the median net financial assets were $7,400 and $100 respectively. Melvin L. Oliver & Thomas M. Shapiro, Wealth and Racial Stratification, in America Becoming II, supra, at 222, 228. As of 1996, life expectancy was 76.8 years for whites and 70.2 years for blacks. Raynard S. Kington & Herbert W. Nickens, Racial and Ethnic Differences in Health: Recent Trends, Current Patterns, Future Directions, in America Becoming II, supra, at 253, 259.
11 David Lyons, Unfinished Business: Racial Junctures in US History and Their Legacy, in Justice in Time: Responding to Historical Injustice (L.H. Meyer ed., forthcoming Jan. 2004) (manuscript at 7, on file with author). For a more detailed account of relevant developments from the seventeenth through the twentieth centuries, see id., the penultimate version of which can be found at http://www.bu.edu/law/faculty/papers (last visited Oct. 24, 2003).
12 See A. Leon Higginbotham, Jr., In the Matter of Color 19–60 (1978); see also 2 The Statutes at Large: A Collection of All the Laws of Virginia 170, 260, 270, 283, 490–93 (William Waller Hening ed., 1823).
13 See generally Paul Finkelman, The Law of Freedom and Bondage: A Casebook (1986) (discussing colonial legislation recognizing slavery and the racial assumptions therein); Wilcomb E. Washburn, The Governor and the Rebel (1957) (describing the background and aftermath of Bacon’s Rebellion).
14 See, e.g., Edmund S. Morgan, American Slavery, American Freedom 327–37 (1975).
15 U.S. Const. art. I, � 2, cl. 3 (three-fifths clause); U.S. Const. art. IV, � 2, cl. 3 (fugitive clause).
16 See, e.g., Freedmen’s Bureau Act of 1865, ch. 90, 13 Stat. 507; Civil Rights Act of 1866, ch. 31, 14 Stat. 27; Supplementary Freedman’s Bureau Act of 1866, ch. 200, 14 Stat. 173; Reconstruction Act of 1867, ch. 152, 14 Stat. 428; Enforcement Acts of 1870, ch. 114, 16 Stat. 140; Act of July 16, 1870, ch. 254, � 7, 16 Stat. 254, 255–256 (amending naturalization laws to provide that persons of African nativity and descent may become citizens); Enforcement Act of 1872, ch. 415, 17 Stat. 347; Civil Rights Act of 1875, ch. 114, 18 Stat. 335.
17 U.S. Const. amend. XIV (ratified in 1868); U.S. Const. amend. XV (ratified in 1870); see also U.S. Const. amend. XIII (ratified in 1865) (aiding former slaves by prohibiting slavery, thus outlawing the re-enslavement of former slaves).
18 See Foner, supra note 8, at 582–612.
19 See Massey & Denton, supra note 9, at 51–59, 227–28.
20 See Fair Housing Act of 1968, Pub. L. No. 90–284, 82 Stat. 81 (codified as amended at 42 U.S.C. �� 3601–3631 (2000)).
21 See Fair Housing Amendments Act of 1988, Pub. L. No. 100–430, 102 Stat. 1619 (codified at 42 U.S.C. �� 3601–3631 (2000)); Massey & Denton, supra note 9, at 209–12.
22 See, e.g., Rebecca M. Blank, An Overview of Trends in Social and Economic Well-Being, by Race, in 1 America Becoming: Racial Trends and Their Consequences 21, 25–27 (Neil J. Smelser et al. eds., 2001) [hereinafter America Becoming I] (reporting a widening gap between black children and white children in access to computers and completion of college degrees); Cecilia A. Conrad, Racial Trends in Labor Market Access and Wages: Women, in America Becoming II, supra note 10, at 124, 124–51(discussing racial differences in opportunity and access to occupations for women); Holzer, supra note 10, at 98–123 (discussing racial differences among men in wages, employment, and labor-force participation); Ren�e R. Jenkins, The Health of Minority Children in the Year 2000: The Role of Government Programs in Improving the Health Status of America’s Children, in America Becoming II, supra note 10, at 351–70 (discussing racial disparities in health status of children); Kingston & Nickens, supra note 10, at 259 (stating that in 1996 life expectancy was 70.2 years for blacks and 76.8 years for whites), 281 (noting racial differences in access to health care as a result of differences in health insurance coverage); Oliver & Shapiro, supra note 10, at 240–43 (finding discrimination in areas relating to home ownership); James P. Smith, Race and Ethnicity in the Labor Market: Trends over the Short and Long Term, in America Becoming II, supra note 10, at 52, 56 (stating that on average, blacks complete fewer years of education than whites); David R. Williams, Racial Variations in Adult Health Status: Patterns, Paradoxes, and Prospects, in America Becoming II, supra note 10, at 371, 371–410 (discussing racial differences in health status and the possible causes); see also Albert M. Camarillo & Frank Bonilla, Hispanics in a Multicultural Society: A New American Dilemma?, in America Becoming I, supra, at 103, 113 tbl. 4-4, showing family income and poverty by race); Gary D. Sandefur et al., An Overview of Racial and Ethnic Demographic Trends, in America Becoming I, supra, at 40, 82–83 tbl. 3-10 (life expectancy), 86–87 tbl. 3-11 (death rates), 88–89 tbl. 3-12 (infant mortality).
23 Nor does it assume or imply that current European Americans owe restitution for unjust enrichment.
24 As recalled by Aaron McGruder, The Boondocks, Chi. Trib., May 25, 2003, � 9.