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.

There is no guarantee that reparations can garner sufficient support from the public, if pursued legislatively, or obtain adjudication from the court, if pursued legally. The question of public support is especially pertinent to an examination of reparations for slavery in the United States, given that slave redress appears destined to be pursued legislatively. In his 2004 book Atonement and Forgiveness, Roy Brooks maps the terrain of legal obstacles, such as sovereign immunity and statutes of limitations, that stand in the way of a legal settlement. Brooks, as well as William J. Darity, Jr. and A. Kirsten Mullen in their 2020 book From Here to Equality, makes the case that slave redress should be pursued legislatively based on the principle of restorative justice. As Darity and Mullen write, “Brooks also insists, like we do, that the demand for reparations be put in the hands of legislators, not judges.”

In his 2014 Atlantic essay “The Case for Reparations,” Ta-Nehisi Coates presents a compelling moral case for reparations and highlights H.R. 3745, a bill introduced into the 101st Congress on October 24, 1990 to “acknowledge the fundamental injustice, cruelty, brutality, and inhumanity of slavery in the United States and the 13 American colonies between 1619 and 1865 and to establish a commission to examine the institution of slavery, subsequent de jure and de facto racial and economic discrimination against African Americans, and the impact of these forces on living African Americans, to make recommendations to the Congress on appropriate remedies, and for other purposes.”

Riveting as the moral case may be, it is by no means a guarantee of legislative success. The likelihood that politicians will enact legislation providing reparations for the descendants of slaves depends in large part on the likelihood their constituents will support the legislation. A core question arises: Why do people support or oppose reparations? The answer is far from obvious, if only because, as James Madison famously wrote in the Federalist Papers, “[a]s long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.” People make decisions from a variety of different motives, and they invariably disagree on facts, values, and how to disentangle facts from values in an effort to arrive at policy tradeoffs necessary to reach a decision or consensus. In the context of reparations, Posner and Vermeule write:

“Within the normative debates, proponents of reparations often focus monomaniacally on the historical injustices inflicted upon victim groups, while minimizing the serious problems of policy design that reparations pose. Opponents of reparations, on the other hand, minimize the relevant injustices and portray reparations proposals as outlandish or even unprecedented, overlooking that federal and state governments have often paid reparations in one form or another. Most generally, commentators on all sides of the issue focus excessively on abstract questions about the justice of reparations while ignoring institutional and prudential questions about how reparations schemes should be designed.”

The Theory and Practice of Reparations

The question of how reparations should be examined as a theoretical matter begins with a definition of reparations. Posner and Vermeulle define reparations in terms of corrective justice. Noting that “a wide range of policies, programs, and decisions have been described as reparations, and the various cases are connected only by a series of family resemblances,” they write:

“The word ‘reparations’ does not pick out a natural kind; there are no clear conceptual boundaries that demarcate reparations from ordinary legal remedies, on the one hand, and other large-scale governmental transfer programs, on the other. Paradigmatic examples of reparations ordinarily discussed in the relevant literatures in law, politics, and moral theory, such as proposals for slavery reparations, do tend to share certain major features: They typically refer to schemes that (1) provide payment (in cash or in kind) to a large group of claimants, (2) on the basis of wrongs that were substantively permissible under the prevailing law when committed, (3) in which current law bars a compulsory remedy for the past wrong (by virtue of sovereign immunity, statutes of limitations, or similar rules), and (4) in which the payment is justified on backward-looking grounds of corrective justice, rather than forward-looking grounds such as the deterrence of future wrongdoing.”

Brooks writes that their definition is over-inclusive:

“As used in international and domestic redress movements, reparations do not simply apply to ‘wrongs’ or wrongs involving ‘a large group of claimants.’ They apply only to certain types of wrongs, to wit, gross violations of fundamental international human rights, such as slavery, genocide, and Apartheid. These wrongs invoke greater moral outrage and, thankfully, happen less frequently than, say, mass torts, which also involve ‘a large group of claimants,’ or even everyday incidents of racial or gender discrimination in American society. Reparations, in short, characteristically arise only in the context of an atrocity.”

Moreover: 

“While it may be possible, as the authors maintain, to justify reparations on ‘backward-looking grounds of corrective justice,’ they are more usually justified on stronger, forward-looking grounds of restorative justice, specifically reconciliation and redemption. Properly conceived, reparations are connected to a statement of deep remorse from the perpetrator. They are, indeed, a redemptive response to an atrocity. This is serious business because it signals the perpetrators’ readiness to imbibe a spirit of heightened morality, identity, egalitarianism, and restorative justice—a vision that gained international acceptance in the years following the Holocaust. Hence, perpetrators do not give out reparations easily, preferring instead to provide redress in the lighter form of an unapologetic settlement. A reparation, then, is properly defined as the revelation and realization of an apology. Given this definition, the authors’ attempt to classify ‘apologies’ as ‘a form of in-kind reparation’ simply does not work.” 

The core theoretical question underlying this dispute over the definition is whether the focus of reparations should be on backward-looking corrective justice or forward-looking distributive justice, the latter often described as restorative justice. Brooks, in his response to Posner and Vermeule and in Atonement and Forgiveness, highlights this dichotomy by contrasting the tort model, which seeks redress through litigation (or perhaps legislation) in pursuit of cash or in-kind benefits disseminated to victims or their descendants, with an “atonement” model of reparations, which entails legislation calling for a formal apology by the federal government of the United States coupled with the establishment of a trust fund administered by black leaders to aid black Americans with scholarships, venture capital, and other opportunities, with the aim of reducing racial inequality.

Brooks invokes restorative justice as grounds for an “atonement” model of slave redress. Chapters 2 and 3 of Brooks’s book discuss harms to slaves and their descendants, much of which covers the intergenerational roots of entrenched racial inequality. Darity and Mullen also highlight the effects of history on present-day inequality. Coates makes a moral case for reparations based on a detailed history of the effects of redlining and housing discrimination, themselves a legacy of Jim Crow. In their 2006 book, Black Wealth/White Wealth, Melvin Oliver and Thomas Shapiro trace the racial wealth gap to the history of slavery, segregation, and discrimination. The atonement model clearly stands on a principle of distributive (restorative) justice.

Theory aside, practical considerations abound. Whether pursued as a matter of corrective justice or distributive justice, reparations aspire to “make whole” a wronged party. What does it mean to “make whole” if the harm (atrocity) has its origins in the distant past? One way is to “make whole” the descendants of the original, now deceased, victims on the premise that the descendants have suffered residual harm. Another way is to “make whole” the social group (racial, gender, class) whose ancestors were harmed by the atrocity.

The distinction between individual descendants and groups of descendants relates to the question of whether there is common impact on the class or whether individuated damages must be assessed for each member of the class (once a class is certified). The moral case is key, but the second issue is of immense practical importance because a major impetus for reparations is the persistence of racial inequality. If structural disparities resulting from past historical injustice are so embedded in the institutional apparatus of society, by which metric should reparations be deemed a success? Full equality? Progress toward equality? Over what period of time? Years? Generations? Are reparations dispositive, or is there a “do over” proviso in the event that the intended goal of eradicating social disparities is not achieved? 

Before getting a handle on all of these complications, the harm to be addressed must be identified. This matter is not as straightforward as it may seem. Darity and Mullen identify three general harms: slavery, Jim Crow, and ongoing covert discrimination embedded in society (e.g., symbolic racism, color-blind racism, etc.). There are also many specific harms that may galvanize reparations efforts. The 1921 Tulsa riot, the 1898 Wilmington riot, the 1863 draft riots during the Civil War, and other acts of domestic terrorism resulted in great loss of life and property.

Other specific “bad acts” include corporate profiteering by newspapers “running advertisements for slave auctions and for committing other acts in support of slavery,” insurance companies which “wrote life insurance policies on slaves, naming slave owners as beneficiaries,” compensating “slaveholders for damage or death to their slaves,” railroads which exploited black labor, and universities which bought and sold slaves or benefitted from the wealth of slaveholders who donated land and funds.

After determining the precise nature of the harm, it is necessary to deal with the intricacies of design and implementation delineated above, including the identification of perpetrators and victims: Who gets what and from whom? The feasibility of quantifying reparations runs into many logistical complications stemming from the intergenerational nature of the harms involved. Questions of liability and valuation involve a thorough examination of historical records on slave ownership, university finances, corporate profit and loss statements, family inheritances, etc.

Brooks writes: “It is because of this focus on the past that slave-redress cases acquire their special difficulties. The absence of a well-established claim, the want of subject-matter jurisdiction, the running of applicable statutes of limitations, and the problem of justiciability converge on slave-redress litigation, sometimes all at once.”

Stuart E. Eizenstat, special representative of the President and Secretary of State on Holocaust-era issues during the Clinton administration, writes: 

“Part of what makes slavery reparations impractical is also what makes slavery’s legacy so insidious and difficult to combat. We’re not talking about a single, horrific, recent event. Slavery began before the founding of the country and continued for centuries. It ended more than a century ago. But its trauma has persisted for generations, continuing to harm African Americans even as it has become less visible to other Americans.

The common thread running through these U.S.-led negotiations and those of the (Jewish) Claims Conference is that restitution has come from the direct perpetrators of the crimes and has gone largely to those who directly suffered and survived, and, in some cases, their direct heirs. And even this was extremely difficult.”

He adds: “Imagine how these problems would be compounded in any program of individual reparations for descendants of slaves. Under such a program, a direct link would be necessary to prove which of today’s 37 million African Americans would be eligible for reparations. But poor record-keeping during the slavery era, which predated America’s founding, makes it extremely difficult to trace ancestry back to a specific slave family.” The result would be perverse for “African Americans unable to establish such a linkage because they lacked the economic wherewithal to pursue the difficult genealogical task or because records did not exist.”

Once a reparations program is designed and implemented, what happens next? Given the multiplicity of harms with roots in the history of slavery, Jim Crow, and racial discrimination, an important challenge is harvesting a program that is dispositive and does not simply set a precedent for endless filing of suits. Or is that the point? If not, then under what conditions are the mutually exclusive and collectively exhaustive set of claims stemming from slavery settled? Does one legislative act providing for reparations, passed by Congress, and signed into law by the President, put to rest all identifiable harms at once in a court of law? If not, does the prospect of additional litigation or legislative efforts in pursuit of reparations undermine support for the original reparations program, as constituents fear the political and financial fallout from ongoing claims?

These questions all have salience as the movement for slave redress gains momentum in the United States. Perhaps the most conspicuous aspect of the ongoing debate over reparations for slavery (as well as Jim Crow and racial discrimination) is an ongoing dialectic between the moral impetus for reparations advanced by supporters and resistance to reparations among broad swathes of the American population for a variety of reasons that relates to motives, factual disagreements, and prospective value tradeoffs people might be resistant to make on matters of policy.

Countless additional questions arise about circumstances of fact such as whether society is or is not meritocratic and whether there is equality of opportunity in the society, as well as theoretical considerations about whether corrective justice or distributive justice is the preferred normative principle upon which to ground reparations. This complex interplay between theoretical and practical considerations confound easy answers to questions about why people support or oppose reparations.

A Brief History of Reparations in the United States

In the United States, one oft-cited precedent for reparations are payments to victims of Japanese American internment during the Second World War. President Franklin D. Roosevelt’s Executive Order 9066 gave legal sanction to the evacuation and internment of approximately 117,000 Japanese American citizens during World War II. In 1988, after decades of activism on behalf of the victims, President Ronald Reagan signed Public Law 100-383, which “granted redress of $20,000 and a formal presidential apology to every surviving U.S. citizen or legal resident immigrant of Japanese ancestry incarcerated during World War II.” Public Law 100-383 grew out of a movement for remedies to victims of internment that began as early as 1948, when President Harry Truman “signed the Japanese American Evacuation Claims Act of 1948 that allowed people of Japanese ancestry to file claims for damages to or loss of real and personal property as a result of the incarceration.” After 40 years of activism by such organizations, the United States government arrived at an agreement on remedies to victims of President Roosevelt’s wartime order.

Public Law 100-383 was signed into law a year before Democratic Congressman John Conyers introduced legislative act H.R. 3745. The bill did not gain enough support to be taken up by the House Judiciary Committee. Each year for the next 28 years, until he resigned from Congress in December of 2017, Congressman Conyers introduced the same bill, renamed H.R. 40 in honor of “40 acres and a mule,” shorthand for a policy of land redistribution initiated by Civil War general William T. Sherman’s Special Field Order No. 15, which, based on consultations Sherman and Secretary of War Edwin M. Stanton, conducted with 20 leaders of the black community in Savannah, Georgia granted 400,000 acres of land formerly held by Confederate landowners to 40,000 resettled black families along the coasts of South Carolina, Georgia, and Florida. This policy was ultimately rescinded as one of many disappointing failures of Reconstruction.

Democratic Congresswoman Sheila Jackson Lee took up the mantle. She has introduced H.R. 40 each year since Conyers’s resignation. Senator Cory Booker introduced similar legislation in the United States Senate. As a Politico article notes, President Joe Biden has indicated support for a reparations study; his press secretary Jen Psaki told reporters that the administration would “certainly support a study”; and Vice President Kamala Harris endorsed H.R. 40 when she was a Senator. As Eizenstat noted in an October, 2019 Politico article, “[o]ver the past few years, the idea of reparations for the effects of slavery in the United States has gone from a mostly academic discussion to a political possibility, discussed at presidential debates and in the halls of Congress.” Prominent anti-racist activist Ibram X. Kendi has insisted that “there is no middle ground on reparations,” claiming that “[t]o oppose reparations is to be racist,” while “[t]o support reparations is to be anti-racist.”

In the form of H.R. 40, Brooks writes that “40 acres and a mule” has come to symbolize the movement for reparations for African Americans, but “slave redress” has a long and detailed history in the United States. Atonement and Forgiveness and From Here to Equality are, again, two books that provide rich and detailed histories of slavery, Jim Crow, and the ongoing legacy of historical discrimination in the form of entrenched racial inequality. They also provided histories of what Brooks calls the Slave Redress movement, going back as far as 1816, when Paul Cuffe, a free black American from Massachusetts who “financed the return of thirty-eight free blacks, including himself, to Africa in 1816” in what was seen, in the words of Robert Johnson, as “a specific, narrowly tailored form of restitution for slavery.”

The movement for reparations has gone through many iterations in the antebellum period, postbellum period, early 20th century, and post-Holocaust period. Darity and Mullen run through such efforts as Lincoln’s Civil War-period Port Royal Experiment, which would have granted land to approximately 10,000 freed slaves in the Sea Islands of Carolina, as well as William T. Sherman’s Special Field Order No. 15. Brooks cites a modern-day plan by the National Coalition of Blacks for Reparations (N’COBRA), which would provide “$25,000 per Black family or the modern day equivalent of 40 acres and a mule.”

Much, if not most, of the public discussion about reparations has been a matter of scholars and activists attempting to convince a skeptical public that there is a moral case for reparations, rather than developing an appropriate model upon which to base the design and implementation of reparations, with discussions centered on whether to focus on corrective justice or distributive justice. But they are up against widespread public resistance. A 2019 Gallup poll shows that 67% of Americans oppose cash payments to the descendants of slaves.

What accounts for the gap between scholars and activists who advocate reparations and broad public resistance to the idea? Is it the case, as prominent anti-racist activist Ibram X. Kendi insists, that “[t]o oppose reparations is to be racist,” while “[t]o support reparations is to be anti-racist”? It is worth noting that the 2019 Gallup polls reveals that most black Americans support cash reparations, but presumably the majority of white people who oppose cash reparations would object to the proposition that such opposition makes them racist. As I noted in an article on what Kendi gets wrong about reparations, Kendi’s binary framework does not help us to understand the many reasons underlying a chasm between increasing, strong support for reparations from scholars and activists, and obstinate, broad lack of support for reparations among the American public. One of these relates to the extraordinarily prohibitive cost of reparations.

Jonathan David Church is an economist and writer. He is a graduate of the University of Pennsylvania and Cornell University, and he has contributed to a variety of publications, including Quillette and Areo Magazine.