[*PG177]REPARATIONS AND EQUAL OPPORTUNITY
Abstract: This paper offers a sympathetic interpretation of reparations claims made on behalf of African Americans and suggests how they could properly be honored. It reviews the federal government's role in supporting racial subordination and its continuing failure to address the inequitable consequences, which public policy now largely ignores. It sketches a national rectification project, comprising a comprehensive set of public programs that would attack the persisting legacy of slavery and Jim Crow. The programs can be justified by the government's duty to insure equal opportunity for our society's children and, most urgently, by corrective justice, because the inequities are attributable to the government's own policies.
Reparations claims by African Americans frequently refer back to chattel slavery. That leads some to object that reparations could not be justified, as no one alive today can be held responsible for those wrongs. As slavery was abolished nearly a century and a half ago, those who might be expected to pay reparations were not even born until decades after slavery ended.
While focusing on the moral foundations of reparations claims, this paper will suggest an approach to meeting some of the skeptics’ principal concerns. Two of the central points are: first, that relevant claims can be grounded on current social conditions and; secondly, that they do not assume our complicity in the wrongs of slavery, only our civic responsibility as members of this political community.
It is understandable that many discussions of reparations refer back to chattel slavery. The slave system was a central part of the American economy and a major source of wealth for two centuries; America’s distinctive racial hierarchy has its origins in the development of that system; and after abolition the former slaves received no compensation for their lifetimes of deprivation and exploitation.
It is true that reparations are now being claimed for the complicity of current corporations in slavery.1 But reparations claims do not require us to go back 138 years. We need not go back in time at all, as I’ll now explain.
The American practice of racial subordination did not end with slavery but evolved into the system known as Jim Crow.2 That system received a veneer of legal legitimacy from new state constitutions and legislation around the turn of the century. But every American knew—or was in a position to know—that Jim Crow was built upon the illegal disfranchisement of African Americans as well as fraud, harassment, coercion, and brutal violence; and that it became possible because of an unwillingness in all three branches of the federal government to enforce clear constitutional obligations and legislative mandates that had been established after the Civil War.
Some reactions to desegregation decisions such as Brown v. Board of Education might suggest that objections to Jim Crow turned mainly on debatable interpretations of the federal Constitution; but one must remember that the subjugation of African Americans required thousands of lynchings; that many lynchings were done publicly with advance notice; that lynching is, at bottom, murder; and that, in the context, the law against murder was largely ignored by public officials.3
[*PG179] In 1947, the President’s Committee on Civil Rights began systematically to document Jim Crow’s dimensions and its further consequences. The Committee found that African Americans had not only been suffering grave moral wrongs for many decades but were systematically subjected to gross violations of their ordinary legal, as well as their constitutional, rights.4
The illegality of racial discrimination and political disfranchisement was not confronted squarely in our political system until relatively recently. Federal courts began to rule against Jim Crow as the Civil Rights movement developed against the background of Cold War competition between the United States and the Soviet Union.5 By the mid-1960s, Congress felt obliged to enact significant civil rights laws.6 This “Second Reconstruction” committed the nation once again to racial equality. State-sponsored racial subordination was officially terminated and the doctrine of white superiority was for the first time officially denounced. Overtly racist practices and explicitly racist political appeals would no longer be condoned. Like the first Reconstruction, however, the second Reconstruction provided no compensation for the victims of racial subjugation.7 Nor did it include measures to undo the entrenched disadvantages resulting from three centuries of a racial caste system.
Following slavery, adequate corrective measures would have included land reform, which was needed to break the planters’ oligarchic control and secure the former slaves’ rights. But Congress rejected the idea.8 Following Jim Crow, adequate corrective measures would have included crash programs to improve housing, medical, educational, and employment conditions for African Americans and a concerted attack on residential segregation. Improvements have been made in many areas. But no set of programs was adopted that could [*PG180]reasonably have been expected to permit citizens of all colors to enter adulthood with genuine equal opportunity. And most of the programs that were adopted have since been ended or reduced.9
The result is a legacy of disadvantage that persists because of a national failure to address the full consequences of slavery and Jim Crow. Those consequences are current conditions, not faint shadows of the distant past.10 If the inequitable legacy had been undone, it is unlikely we would still hear broad-based claims of reparations based on conditions that originate in chattel slavery.
When the colonies were first established, the British common law, which the colonists brought with them, lacked any law of slavery.11 The [*PG181]legal framework for chattel slavery was constructed by colonial legislation.12 After Bacon’s Rebellion, slavery was given a racist character.13 The colonial elite, which understandably felt threatened by the uprising of black and white servants acting together, decided that their security and privilege required them to divide and weaken the multi-racial servant class. Slavery was then restricted to people of color, and became a condition into which white servants were assured they could not fall.14
A century later, slavery was incorporated into the new federal system by constitutional provisions. Slave states were given extra representation and therefore extra influence in the federal government, and all states acquired a constitutional obligation to return escaped slaves.15 Until the Civil War, public policy supported the slave system.
After slavery was abolished, the federal government took important legislative16 and constitutional17 steps to aid the former slaves and guarantee them equal rights. But the federal government soon gave up those onerous tasks, broke its solemn constitutional promises, and knowingly allowed a new system of racial subjugation to be brutally established.18
In fact, federal policies promoted racial segregation. Consider housing. In the 1930s, federal agencies embraced the practice of “red-lining,” which disqualifies applicants in African-American and “transitional” neighborhoods from home purchase and home improvement [*PG182]loans. That policy was subsequently followed by private lenders. The practice severely restricted home acquisition and repair in African-American neighborhoods. This, in turn, substantially limited wealth accumulation for African Americans, which largely accounts for the substantial wealth gap between African-American and European-American families. Federal agencies also supported the segregation policies of local public housing agencies, and other federal policies promoted the development of permanent black urban ghettoes and lily-white suburbs.19
During the 1950s and 1960s, under extraordinary foreign and domestic pressures, the federal government denounced race discrimination and took important steps to ameliorate poverty and guarantee equal rights. However, once again, it soon gave up those onerous tasks. It allowed the entrenched disadvantages of African Americans to remain unchallenged by law or public policy. Federal fair housing legislation, for example, at first lacked significant enforcement provisions.20 When enforcement authority was later added, enforcement was not part of federal policy.21
In sum, federal policy supported slavery before the Civil War. After the Civil War, the federal government pledged to support racial equality, but after a brief time period it violated or failed to enforce relevant federal law. After Jim Crow was denounced, the federal government failed to rectify the inequitable legacy of its own prior policies.
The federal government has thus been complicit in the systematic, grievous wrongs done to African Americans. Slavery and Jim Crow were in large part public, not private wrongs. And their legacy is a matter of public concern because its persistence reflects current policy. The federal government is the single most important currently existing party that can truly be held accountable. In view of that history and the entrenched nature, the wide scope, and the great magnitude of the persisting inequities, the federal government is a fitting target of moral demands for corrective justice.
While it is often assumed that reparations claims seek cash transfers from European Americans to African Americans, the argument I have been sketching does not lead in that direction. I do not mean to rule out individual claims, but my argument concerns the role of federal policy in the wrongful creation of a black-white gap in life pros[*PG183]pects, a gap that federal policy first made possible and has since failed to address. The argument indicates the morally imperative need for a corrective national project to eliminate that gap.
The relevant inequities have two aspects—material deprivation and social derogation. An adequate rectification project would address both.
On the material side, I suggest a rectification program that concentrates on closing the life prospects gap for children. The point is to minimize skepticism about reparations by employing a political principle that is both minimally controversial and clearly violated by the legacy of slavery and Jim Crow.
African-American children are born into a system for which they cannot plausibly be held responsible, one that disproportionately affords many of them substantially inferior life expectancy, medical care, nutrition, education, career possibilities, job options, housing, and the like.22 As these disadvantages stem largely from the legacy of slavery and Jim Crow, and as a decent government is committed to providing genuine equal opportunity for all of its children, public policy should place a high priority on eliminating those gaps, on refining the necessary programs so as to maximize their effectiveness, and on maintaining them until their jobs are done.
[*PG184] A national project that aims to provide equal opportunity for children might seem to neglect a large number of potential claimants. But children’s life prospects cannot be improved without aiding their parents and communities. Children require decent housing, a safe and healthy environment, and good community services. They require ample time with parents, which means that parents require good child-care services, transportation, wages, and benefits. The various intensive human services that require expansion and enrichment in order to secure equal opportunity for children would provide worthwhile jobs for many adults. And so on.
The preceding sketch should suggest the scope and magnitude of the programs that would be required for a child-centered rectification project. The costs would be considerable—but well within the capabilities of an America that pools rather than wastes its resources.
Such a rectification project neither assumes nor implies that we should generally regard current European Americans as responsible for the legacies of slavery and Jim Crow and thus as owing reparations to African Americans.23 Nevertheless, members of the political community may legitimately be called upon to support such a project. This follows from any reasonable conception of civic responsibility. Our strongest civic obligations require us to support just public policies, especially programs that are required to rectify inequities resulting from the community’s past policies.
Partly for these reasons, and because the project called for here is required to rectify existing inequities, it might not be regarded as a “reparations” program. But it is none the less required by corrective justice.
So much for the material component of the rectification project. The social component is more complex. Political subordination and racist derogation have been central features of America’s racial caste system. The wrongs have included not only political exclusion but also systematic insults, humiliations, terror, murder, and rape.
It is essential that these aspects of racial subordination be addressed vigorously. Experience reveals that a rectification program requires a firm commitment, for which a profound attitude change is itself required. Apologies are not enough.
It is important to recognize that racism need not involve hateful acts. Racism is exemplified more frequently in discounting the interests of those with whom one does not identify—in not giving their in[*PG185]terests equal consideration (or any consideration at all). It may be found, for example, not merely in lynchings but in the prolonged, widespread failure to regard the practice of lynching as important enough to address. Such attitudes are poisonous ingredients of the persisting legacy of slavery and Jim Crow.
In one respect, the rectification project I have described may be regarded as utopian. That is not because the constituent programs would be aimed at satisfying some pure ideal of social justice. On the contrary: they are required to make up the enormous shortfall between current conditions and a fair set of starting conditions for competitive social processes, which precludes equality of opportunity, when that shortfall flows from grievous wrongs. Given current political realities, however, such a proposal is practically utopian: I cannot imagine today’s Congress or federal administration entertaining such a project. What is the point of discussing it, then?
First, we need a benchmark—an idea of what corrective justice demands, even when we cannot expect to achieve it. We need it because, while proponents of rectification now have limited political leverage, one can never tell when propitious circumstances will arise.
I alluded earlier to circumstances that permitted the post-World War II civil rights movement to achieve as much as it did. They included recent participation in a war against a racist regime, the development of the United Nations and of the Universal Declaration of Human Rights, the rise of newly independent states with populations of color, Cold War competition for influence among them, and the growth of widely disseminated pictorial news through film and video.
Given the disastrous current direction of U.S. foreign and domestic policy, we might find, before long, that political circumstances will once again be radically altered. New conditions may offer possibilities for instituting effective elements of the programs I have described.
That expectation should help to sustain our efforts in that direction. Meanwhile, we should recall what Sam Adams said: “It does not require a majority to prevail, but rather an irate, tireless minority keen to set brushfires in people’s minds.”24