On Reparations for Slavery:

 

On 2-22-2002 Bill Boushka wrote on queerlaw:

 

> Did everyone see the big USA Today story Thursday on the idea of slavery
> reparations and the possibility of litigation against many companies (ranging
> from insurers to railroads) whose wealth (or of companies that they acquired)
> is "tainted" by having at one time been based on slavery?
>    It would surprise me if legally such "retroactive torts" make legal sense
> (for activities that were not illegal when they were committed, however
> reprehensible by today's standards).
>      Bill

Michael T. McLoughlin (University of Michigan) writes back:

    Actually, this idea has been around for quite a few years - it's just now starting to get coverage in the mainstream press.  (NPR and affiliated stations, for example, have run several stories over the past few years.)
    As with the internment of Japanese-Americans during World War II, the pursuit of reparations re slavery is a legislative battle, not a court battle.  It simply would not be possible to pursue damages in tort at this
juncture, because the statutes of limitation will have *long* since run by now.
    The problem is the size and nature of the legacy.  Japanese-Americans were not simply interned, but they were stripped of real and personal property; they lost their businesses; when they were released and
allowed to go home, there was no home to go to - their "friends" had bought them at auction.
    Well, it's easy to compensate *that* - once it's accepted that there should be compensation.
    Conversely, the West African slaves who were transported to the U.S. were already slaves *in* West Africa.  They were usually people from this or that village or tribe who had been conquered and enslaved by another group of West Africans; and were then sold to ship captains, most commonly from England (but also from France), who took them to the South America, and to mainland and insular (esp. the Caribbean) North America - where, in this country, they and their descendants lived as slaves from 1619 to 1863.
    Where does the chain of discrimination begin and end?  How does one compensate for the thousands of years slavery was considered perfectly acceptable (and still *is* in parts of the world, including parts of
Africa - like the Sudan)?  It can't be done.     What can be done - and must be done - is do-able step by step.  In the United States, the first step was passage of the 13th, 14th and 15th Amendments to the U.S. Constitution.  We're still dealing in the second step, which got started after World War II (the civil rights movement).
    In a sense, the call for reparations (which has been around for a long time) has picked up where it left off.  A decade or so after the Civil Rights Amendments were ratified in the 19th century, a tacit
agreement arose within the southern states (Jim Crow) that circumvented them.  African-Americans were not legally slaves, but they were still treated as slaves in law until Truman's executive order, *Brown v. Board of Education,* etc.  So, it helps to understand the call for reparations if one thinks of it in terms of a renewed call after a century of hiatus in the integration of African-Americans into the American mainstream.
    That said, it probably can't be done on an individual level, like the reparations paid to Japanese-Americans.  By the time you figure out a figure and agree on a rate of interest, when you divvy the money up between all of the descendants of slaves in the U.S., you won't be handing out more than a few dollars per person (because you would have to start with what would have been a proper dollar figure for reparations in 1863 -- which wouldn't be much, even with 100 years of interest added in).
    What *can* be done, of course, are educational and training programs, small business development schemes, and the like.  That's something that could actually work, and actually makes sense in terms of
how the American economy operates.
    There *is* Affirmative Action - but the only people who have actually benefited from Affirmative Action have been white women.  "Affirmative Act." has been a great tool for getting white women into jobs formerly "reserved" to white men.  It has not, however, made it any easier for white *men* to get jobs historically reserved for white *women* - such as clerical/secretarial positions, nursing, and so on.  It's still very difficult for male nurses to get jobs in most parts of the country, if there are qualified women available for the job.  And most elementary school teachers are still women (it's one of the reasons they're so poorly
paid - because it's "women's work"), though they have been reasonably proactive in recruiting men for K-6 elementary school positions.

 

Copyright 2002 by Michael T. McLoughlin, reprinted with permission