The Many Problems with Race Reparations in the United States

“What accounts for the gap between scholars and activists who advocate reparations and broad public resistance to the idea?”

Editor’s note: The following constitutes the first installment of a two-part piece on the topic by Jonathan Church.

The Holocaust ended with six million Jews dead across German-occupied Europe. The conquests of Genghis Khan saw the massacre of millions. During World War I, one million Armenians were subject to ethnic cleansing by the Ottoman government. The rapes of Muslim women “went on day and night” during the Bosnian war in the 1990s. Apartheid in South Africa, serfdom in Europe, and slavery, Jim Crow, and racial discrimination in the United States are yet other notorious examples of great wrongs in history, but they hardly exhaust the list of atrocities committed during the long history of humanity. It is no stretch of inference to conclude that, on history’s great stage of fools, “man’s inhumanity to man” has been baked into the fabric of human nature and human institutions.

Wrong, however, has not been without right. The history of humanity has not been a sheer plunge into darkness. It has also been an arduous, though sometimes Sisyphean, quest for justice and redemption. One project that unites backward-looking redemption with forward-looking justice (or vice versa, some might suggest) is the invariably contentious debate over reparations for past wrongs. Eric A. Posner and Adrian Vermeule write that “[v]ictims of historical injustices who have no positive law claim against wrongdoers often seek reparations from governments, and occasionally they obtain them,” as evidenced by reparations for Japanese Americans interned by the United States government during World War II, as well as for victims of the Nazi Holocaust. Posner and Vermeule identify several major reparations programs in the United States and internationally, including:

• $800 million paid by the United States government in 1946 to Indian tribes for land taken by force or deception;
• $9 million paid by the United States government in 1997 to victims of syphilis experiments, in which victims were denied treatment for syphilis without being informed;
• $117 million paid by the United States government in 1990 to victims of radiation exposure from nuclear tests and mining.

International examples include:

• over DM 100 billion paid by West Germany and Germany to Israel, Holocaust victims, descendants of Holocaust victims, and organizations in various years from 1947 to 1992;
• monthly pensions of 140,000 pesos plus other benefits paid in 1992 to victims and descendants of victims of the Pinochet regime in Chile;
• CA $350 million paid by the Canadian government in 1998 to aboriginals whose children were forcibly assimilated into Canadian society
• More recently, “[t]he United Nations has ordered Bosnia to compensate a woman raped by a soldier during war and to set up a nationwide war crimes reparation scheme, after the first case of sexual violence brought before the U.N. Committee Against Torture.”

In addition to the examples above are “countless proposals for new reparations programs, including a proposal for slave reparations in the United States.” Proposals for reparations inevitably prove controversial, however, because they give rise to an intricate skein of factual, logistical, legal, political, economic, institutional, psychological, and moral concerns. The scale and scope of a reparations program can be relatively limited or relatively broad depending on the circumstances of the harm to be addressed. In either case, a reparations program must respond to a multitudinous array of challenges: establishing the liability of alleged perpetrators, validating victims, predicating the principle of justice upon which to design the program, overcoming hurdles to quantifying harm, handling the logistics of program implementation, managing public support for the program, and deciding on the legal or legislative framework within which all these matters can be administered while a program is developed, negotiated over, and decided upon.