Reparations Then and Now

On May 4, 1969, James Forman rose to interrupt the Sunday morning services at New York City’s Riverside Church to read aloud a “Black Manifesto.” The Manifesto was an explosive declaration of independence by a new generation of young black activists who had grown impatient with the slow-moving, nonviolent tactics that had prevailed in the Civil Rights Movement. It was intended to shock, and shock it did, not least because, among its other features, it demanded $500 million as reparations “due us as a people who have been exploited and degraded, brutalized, killed, and persecuted.”

The idea that one party to a conflict can end up owing financial reparations in some form or other to the opposing party is not a new one. The most notorious example is the reparation imposed by the Allied Powers at the end of World War I on Germany by the Versailles Treaty. But the war reparations of Versailles belonged to a very different category from the reparations Forman was demanding. In 1921, reparations were based on the damages inflicted by outright war, not social or political wrongs, and they were imposed by the winners on the losers. In other words, it was the victims who paid reparations, not the victimizers. What made Forman’s demand possible in 1969 was an important redefinition of the idea of reparations that grew out of the experience of World War II and the discovery of the extermination of six million of Europe’s Jews by the Nazis.

As early as 1943, the World Jewish Congress had begun to formulate demands for a postwar settlement that would include restoration or indemnity for stolen or destroyed Jewish property, reparations for the loss of Jewish life and community that included payments of up to $12 billion, and guarantees from the Allies for a Jewish homeland in Palestine. What raised eyebrows about these demands was not their size but the fact that they came from an ethnic group, rather than a nation or state, and a group which was asking that its ethnic identity become the basis for the reparations. This was so unprecedented that the 1945 Paris Conference on Reparations chose to ignore the Jewish demands. However, in 1951, German Chancellor Konrad Adenauer, who viewed Jewish reparations as part of the burden Germans needed to confront frankly in order to wipe out the Nazi past, offered reparations amounting to DM 3.45 billion to the survivors of the Holocaust, and a second agreement in 1953 committed the Federal Republic to still further reparations payments.

The success of the Jewish survivors of the Holocaust in gaining reparations was a turning point in the notion of reparations for national crimes. It not only reversed the conventional direction of reparations, but it legitimized demands for reparations for past injustices by groups who had no specific national identity of their own. In 1962, Australian Aborigines filed a suit against the Australian federal government for the recovery of traditional tribal lands. An Aboriginal Land Act was passed in 1976, and in 1998 Australia celebrated (if that is the word) an official Sorry Day for Aborigines as a way of offering a national apology. In 1997, the World Jewish Congress succeeded in exposing the complicity of the Swiss banking system with the Nazi persecution of German Jews, and, after some hesitation, Swiss banks announced their intention to create a Holocaust Fund for Holocaust victims whose family assets had disappeared into Nazi accounts in Swiss banks.

The United States first became involved in the new wave of reparations in 1988, when Congress passed the Civil Liberties Act, allowing the federal government to compensate Japanese-Americans who had been interned during the Second World War. But the most obvious candidate for reparations, as James Forman had foreseen in 1969, would be the descendants of the African-Americans who, from 1619 until 1865, had been legally enslaved in the United States. Few people took Forman seriously in 1969, but as money began to flow to Holocaust survivors and Japanese-American internees, it became difficult for African-Americans not to wonder bitterly why they should be denied a place at the reparations table. In 1989, Michigan representative John Conyers introduced a bill (H.R. 3745) asking for the establishment of a commission “to examine the institution of slavery” and “to make recommendations to the Congress on appropriate remedies.”

Conyers’ bill was buried in the House Judiciary Committee for several years. But it was reintroduced in 1993 as H.R. 40 with forty-eight sponsors and the blessing of the Congressional Black Caucus. Then, in December 2000, Charles Ogletree of the Harvard University Law School formed a Reparations Coordinating Committee (originally known as the Reparations Assessment Group) composed of several high-profile veterans of national class-action lawsuits, including Johnnie Cochran, Richard Scruggs (of the tobacco settlement), and Dennis Sweet (of the “phen-fen” suit), who began exploring the possibility of litigation to obtain reparations.

But if the Japanese and Swiss examples offered an incentive for demanding the reparations Forman described, they did not offer much in the way of useful guidance, since three fundamental problems that did not exist in the Jewish or Japanese cases stand in the way of slave reparations.

First, American law, both in terms of statute law and common law, is rooted in long historical assumptions about where rights are located. From the time of the American founding, we have understood rights to be located in individuals. We recognize no titles of nobility: this means not only that the American republic repudiates the notion of a titled aristocracy, but that it does not recognize any special category of rights belonging to a class of people. There is, in the politics of the Founders, no essential quality of nobility that all aristocrats are presumed to share and others not, and which we are all obliged to recognize legally. By the same logic, we recognize no national language, no national church, and no national race, because we do not locate civil status or rights in groups, whether those groups are ethnic, religious, or racial. So, when a crime is committed, we want to know about the guilt or innocence of the individual, not someone’s racial group, religion, or other characteristic. And when a civil judgment is issued, we want to compensate the individuals who were actually harmed, even in a class action, not the race or church or bowling league they belong to.

The grain of American jurisprudence thus runs completely against assigning blame on the basis of group identity (something which we have shown most recently in our instinctive recoil from the practice of racial profiling). It expresses the measure of resistance we have toward identifying individuals as anything but individuals, and it poses a philosophical stumbling block for reparations litigation right on the threshold of the courtroom.

But this only speaks to a general conceptual issue. There are two other equally difficult problems standing in the way of reparations for slavery that were not present in the other reparations cases.

For one thing, what tactics should reparations activists adopt? Advocates like Charles Ogletree hope to use civil litigation, through the sort of class-action lawsuits that won such immense victories as the tobacco settlement. On March 26, a group of New York–based lawyers headed by Edward D. Fagan, who spearheaded successful suits on behalf of Holocaust survivors against European firms that collaborated with the Nazis in using concentration camp inmates as laborers, filed suit in U.S. District Court in Brooklyn against FleetBoston Financial, the insurance giant Aetna, and railroad conglomerate CSX Corporation, on the grounds that these corporations are the successors of companies that profited from slavery before the Civil War. The defendants, claims Fagan’s suit, “conspired with slave traders, with each other and other entities and institutions . . . to commit and/or knowingly facilitate crimes against humanity, and to further illicitly profit from slave labor.” Ogletree and Cochran have promised to file similar suits against other corporate targets and the United States government by this fall.

The success of the Holocaust and tobacco settlements has given this kind of litigation a sort of cachet in the public view. Outside public gaze, however, the truth is that litigation has not been terribly successful in gaining ground for reparations. In 1995, a reparations lawsuit demanding $100 million was filed against the federal government in the Ninth Circuit Court of Appeals. But the suit, Cato v. United States, was tossed out on the grounds that it lacked a “legally cognizable basis.” And no wonder: the statutes that made slavery legal were state, not federal statutes, and thus do not render the federal government liable for slavery. After all, the Constitution nowhere contains the word slave, an omission that the late Don E. Fehrenbacher suspected was a deliberate tactic of the authors of the Constitution to keep the federal government from having jurisdiction, or responsibility, for slavery. And besides, the federal government possesses sovereign immunity; only if Congress agreed to surrender that immunity beforehand could a class-action suit ever hope to gain a victory through the federal appeals system.

One could turn, in that case, to suing the states that legalized slavery, since that is where the legal center of enslavement rested. The problem here is that the plaintiffs in any such suit would be obliged to sue not only the states we think of as having been slaveholding states—the states of the old Confederacy—but any state where slavery had been legalized at any time. That would include Massachusetts, New York, Pennsylvania, and Illinois. The idea of suing Pennsylvania, which voluntarily abolished slavery in 1780, or any other Northern state like it, stretches public credulity. Attorneys-general in those states would unquestionably fight any such suit, and the likelihood of failure in those state courts would cast a shadow over litigation in the others.

Instead of suits against the one-time slave states, one could turn to the descendants of the owners of slaves, and sue them. As Edward Ball demonstrated in his best-selling Slaves in the Family, it is not impossible to trace back the family trees of slaves and slaveowners in place after place, with the aid of census records, tax records, and probate records, and identify who exactly was guilty of enslaving whom. Not impossible, but not easy. In the first place, it will be hard to win a civil lawsuit brought against the heirs of anyone who was, before 1861, merely operating under the laws of the time. Second, it will be a challenge to calibrate the exact amount of the guilt slaveholding involved for different individuals. At one point or other, perhaps half of Southern whites owned at least one slave at some time, and a third were long-term slaveholders. It will take painstaking research to determine how much liability adheres to a family that might have owned one or two slaves at different times over two hundred years, and how much to a family that owned hundreds of slaves without interruption, and under conditions that would make any civilized conscience falter. This also assumes that the wealth a family’s slaves generated for it is still attachable in some form. More likely, any assets a family once possessed through the labor of its slaves have long since disappeared.

The last real hope of reparations litigation is to target corporations, in the way that the March 26 suit has done, and which Ogletree threatens to do this fall. Once again, there is a certain verisimilitude to the charge that as many as one thousand modern corporations were involved, a century and a half ago, in one or another aspect of bondage. A number of modern urban newspapers, such as the Baltimore Sun, the Richmond Times–Dispatch, and the Hartford Courant ran advertisements before the Civil War for the sale of slaves or the recapture of runaways; all four of the major North American railroads own rail lines that were built with slave labor; the founder of Lehman Bros. bought slaves as workers for the firm when it was founded in pre–Civil War Alabama. But even here, the odds for legal success remain long. None of these businesses survive in the same organizational state as 150 years ago; some of the names are only historical reminders, left after a century of mergers and acquisitions; and many of them have already put into place elaborate affirmative hiring policies, racial sensitivity training, and programs that underwrite black education.

But if they are not all that vulnerable legally to reparations demands, corporations are vulnerable in other ways. Corporations have products; they also have reputations that sell those products, and even an unsuccessful lawsuit can have damaging impact on the corporation’s image and sales. In a major USA Today series of articles on reparations, Owen Pell, a lawyer who represented Chase Manhattan Bank against claims made by Holocaust survivors, acknowledged that corporations would rather settle high-emotion, high-visibility suits like those planned by the Reparations Coordinating Committee in some quiet, out-of-court fashion. “Companies have learned you don’t judge a lawsuit by its merits,” Pell commented. “You judge it by the potential public relations damage.” This may, in the end, be the most successful way to use litigation to get reparations promises from anxious corporate executives. But those who rely on this sort of legal bluff will have a public relations problem of their own, since it will be difficult for them to pose as champions of justice in the middle of what looks like just another Jesse Jackson–style shakedown. And there is no guarantee that unsympathetic shareholders might not vent their own outrage with countersuits against the same quailing executives.

The difficulty in identifying whom we might sue for reparations is considerable. But it pales beside the difficulty of identifying who the beneficiaries ought to be. This is what decisively distances the Japanese internees and the Holocaust survivors from the slave reparations question, because in the first two cases there were identifiable individuals to whom benefits, restitution, and indemnity could be paid. But American slavery ended 137 years ago, and at the farthest stretch, only a handful of the grandchildren of those slaves might possibly be alive today. This, of course, is where the notion of group identity enters into the reparations argument, since the crime of slavery—by the logic of modern reparations—was committed, not against individuals, but against a group (African-Americans) and therefore reparations can be paid to a group (African-American descendants).

But that will only be the case if we are able, indeed, to identify such a group with any accuracy. And that may not be so obvious as it seems. The long record of racial mixing under slavery between masters and female slaves (as in the much-debated case of Thomas Jefferson and Sally Hemings) produced populations that were so lightskinned that they passed into white society (as several of Sally Hemings’ children did) and populations so darkskinned that they lost all memory of the white European genes they inherited. If the group to be identified as the recipients of reparations payments is simply to be “African-Americans,” then there will be a surprising number of claimants eligible for reparations payments who have, so to speak, been “white” for several generations. 1 By the same token, if the object of reparations litigation is to be the descendants of slave-owners, what do we do when many of those who sue are themselves descendants of those same slave-owners, and also belong, by reasons of racial mixing, to the class of those being sued?

Rather than litigation, it has been suggested that reparations activists pursue a legislative agenda, since time after time this has proven to be a more successful strategy. In the 1980s, the Japanese American Citizens League, in its quest for reparations for the World War II–era detention of Japanese-Americans, resisted the temptation to challenge the federal government in court, and instead lobbied Congress to form a nonpartisan fact-finding commission. The commission’s hearings then became a rallying point for publicizing Japanese-American sufferings during the internment, while the commission’s independent status allowed its findings and recommendations for reparations to appear nonpartisan. And the result was a substantial victory for the families of the internees. Not surprisingly, this is the route that Conyers and his supporters have chosen to follow.

There is a certain chanciness in this tactic, however, in that a legislative commission can only recommend certain results to a legislature, not mandate them. Unlike in the civil courts, a victory in Congress does not necessarily result in an award for damages. Congress, for instance, could very easily have received the report of the internees commission and merely issued an apology that would have closed the door for good on further civil litigation, and the same could very easily happen concerning reparations for slavery. What is just as likely is that a commission will deadlock, and issue no recommendations at all. One of the most hopeful examples of using independent commissions to get around political roadblocks, the Kerrey Commission on entitlements, was loaded with blue-ribbon experts—Senators, bankers, philanthropists, college presidents. But when it issued its report in 1995, the membership couldn’t even agree on what the problem was, much less how to fix it. Reparations activists consequently run the risk of conjuring up all kinds of irritations in commission testimony, without any guarantee of a substantive result.

Those irritations could arise especially if it appears that the calls for reparations are ignoring the ways in which reparations have already been paid and are being paid. Affirmative action is, for instance, a form of reparations, and it ill-behooves advocates for reparations to appear dismissive of an initiative that has cost more than a little controversy. But I am thinking of another form of reparations for slavery that Americans have paid, and that is what brings me at last to Abraham Lincoln.

Lincoln knew as well as any American of his time what the injustices of slavery involved. To a delegation of black leaders in 1862, he admitted candidly that “I think your race suffer very greatly . . . . Your race are suffering, in my judgment, the greatest wrong inflicted on any people.” But Lincoln’s notion of the debt created by this injustice was balanced by the kind of payment he saw being made in the carnage of the Civil War. “If I had been allowed my way this war would have been ended before this,” he wrote to the English Quaker Eliza P. Gurney in the fall of 1862, but God “permits it for some wise purpose of His own.” Lincoln thought, by 1865, that he could discern that purpose, and the purpose was the payment of reparations in a dearer currency than money could calculate.

In his Second Inaugural, little more than a month before his death, Lincoln reminded the nation of the dread warning given to those who had oppressed the innocent and defenseless: Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh. From that biblical lesson, Lincoln asked whether such a woe had indeed come on the nation because of slavery—and was being paid for in blood. “If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came,” Lincoln continued, then what other sense can this war have, except that God has willed that the war should be a mechanism of justice, “until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword”?

Those for whom this way of paying reparations was not justice enough, or else the wrong kind of justice, would have to argue in a higher court than Lincoln had ever practiced in. “As was said three thousand years ago, so still it must be said, ‘The judgments of the Lord are true and righteous altogether.’’’

The call for reparations for slavery is not, I believe, an ignoble one. But to the extent that it ignores the finger Lincoln points at the Civil War—to the extent that it forgets the decimation of a generation of young Americans at the beginnings of manhood; to the extent that it forgets the windrows of corpses at Shiloh, the odor of death in the Wilderness, the walking skeletons of Andersonville, 623,000 dead all told, not to mention the interminable list of those crippled, orphaned, and widowed whose pensions became the single largest bill paid by the federal government for the following half-century; to the extent that it ignores how the war cost the United States $6.6 billion, rocketed the national debt from $65 million to $2.7 billion, retarded commodity growth for the next thirty years, and devalued its currency—then the call for reparations opens itself up to a charge of willful forgetfulness so massive that resentment, anger, and bitterness, rather than justice, will (I fear) be its real legacy. The evils of slavery were real evils; so were the deaths of boy after boy, white and black, blue and gray, as well as the lag of postwar wages for Northern workers and the pauperization of Southern agriculture. In whose balances shall we say the one fails to measure up to the other?

We have also had other evils—among them, the long, disgraceful history of segregation and Jim Crow, of lynch mob and race riot. And in that history, we confront a second case for reparations, a case that I believe needs hearing and satisfying. I believe that it is not beyond our reach or our imaginations as a nation to design a national educational trust for African-Americans which will fund the real educational opportunities that form the first rung in the ladder of American mobility, a ladder that segregation and racism made sure was the first thing stolen from African-Americans after Lincoln’s death.

But this is not the same issue as slavery. For that long bill, as Lincoln rightly noted, a precious price has already been paid.

Notes

1 This is precisely what happened when the Mohegan and Pequot tribes of Connecticut opened casinos on tribal territory in the mid-1990s and proposed to distribute the considerable profits of the casinos to the members of their tribes. “When word got out that being a Pequot was worth a great deal of money,” drily commented Scott Malcolmson in One Drop of Blood: The American Misadventure of Race, “ancestral memories were rekindled,” or in some cases manufactured, to get a share of the boodle.

Allen C. Guelzo is Dean of the Templeton Honors College at Eastern University in St. David’s, Pennsylvania, and author of Abraham Lincoln: Redeemer President (1999), co-winner of the Lincoln Prize for 2000.