Taking Reparations Seriously
I finally got around to reading Ta-Nehisi Coates’s case for reparations on the plane down to New Orleans (where I am now, working on a film; blogging may be even more sporadic than usual this summer). I’ve been eager to do so since I heard about it, both because I admire Coates as a writer and because I have always felt the discourse around reparations to be somewhat odd, skipping past the actual case presented and advancing immediately to a meta-analysis of why someone would make such an argument. And that oddness has very much extended to the reception of the Coates’s piece.
Before diving into the case for reparations specifically, though, I need to make a somewhat theoretical digression into different ideas about justice.
When an injustice has been done, there are, speaking in very general terms, four possible models for response. The retributive justice model assumes that there is a single legitimate authority whose job it is to assess whether a crime – a violation of positive law – has been committed, and, if it has, to punish the violator with a punishment commensurate with the crime. The injured has no direct interest in the proceeding – their injury is merely evidence to prove that a transgression has occurred. This is, broadly speaking, the way we approach criminal law – although we often justify punishments with theories about communal defense or rehabilitation, these are add-ons to a system that is conceived, at a fundamental level, as retributive.
The civil law, by contrast, deals with tort liability. The single legitimate authority’s job is not to punish transgression, but to assess the degree of liability for harm and to determine adequate compensation. The injured has a direct interest in the proceeding, but submits to the authority’s determination of what is fair compensation, if any. You can have a civil law system without reference to statute, based entirely on common law, but you can’t have such a system without a judge, an independent authority who both parties are obliged to respect.
The above two models are generally understood to be improvements on a third, older model: the vendetta. Here, there is no authority, and so when an injustice is perpetrated those close to the injured – relatives and other allies – wreak harm on the malefactor and those close to him. Precisely because vendetta leads to an endless cycle of violence, models that posit an authority are generally seen as advances in civilization.
But the establishment of a binding independent authority is not the only alternative to endless vendetta. A fourth model, or, actually, collection of models, begins from a different place: from an understanding of justice as a sense of achieved fairness that can restore social peace. Rather than posit a single legitimate authority that can punish malefaction and/or assess due compensation, the job of the community – or of its designee – is to mediate between injurer and injured, to find the formula that satisfies both sides that justice has been done. This is a model of justice asserted to obtain in a variety of traditional societies; modern variants under this same rubric, I would argue, include restorative justice (in the context of domestic criminal law) and transitional justice (in international human rights contexts).
Where does the idea of reparations fall on this spectrum?
Well, if the model is retribution – punishing wrongdoers – then reparations are clearly a non-starter. The wrongdoers are dead, to start with. Then, there’s the little matter of the Civil War, which meted out quite a bit of punishment to the slave-owning portion of the country. The statute of limitations isn’t terribly relevant given that we’re not talking about crimes that violated a statute in the first place; nonetheless, we are ultimately talking about harms that were inflicted generations ago. Similar problems bedevil a tort approach.
But if the model is the last – of justice conceived as reconciliation between injured and the inflicter of injury within a single political community – then reparations are readily comprehensible. The goal, fundamentally, is not to assess liability in a precise way. It is to establish the general magnitude of the wrong, the manifest injustice thereof, and for that claim of injury to be satisfied so that both parties can put it behind them.
If you think about the analogy to Holocaust reparations, it’s clear that this is the model that makes the most sense, notwithstanding the meticulousness with which the harms of the Holocaust were calculated. Reparations were controversial in Israel precisely because they implied some degree of satisfaction, and precisely because they were offered by Germany rather than being imposed by an outside authority. If the United States Army had simply handed the territory of East Prussia to the Jewish people and said: here, this is yours, as compensation for the suffering inflicted upon your brethren by the Nazis, I doubt Begin or anyone else would have said: no, we’ll never take blood money. Because it wouldn’t be blood money – it would be recompense extracted by an authority in a position to impose judgment. Reparations, on the other hand, were an offer of compensation to end the formal claim. (I note, as an aside, that prior to World War II, “reparations” actually referred to the assets claimed by the victor in war to compensate for to cost of the conflict – see, for example, the reparations imposed on Germany after World War I. But the meanings of the word has changed.)
It’s not hard to imagine how a slavery reparations scheme would work. The United States government would assume the responsibility for reparations; slavery only persisted as an institution because it had the protection of law. Some formula would be negotiated to determine the total aggregate compensation due to former slaves – or, rather, their descendants – probably based on a combination of lost wages and pain and suffering. And then individual descendants of slaves would have to establish descent to make claims against that communal property, and some court process would be set up to adjudicate such claims. Depending on the formula, the aggregate numbers could be very large, but they could be calculated.
The social purpose of reparations would not be to restore a level playing field between blacks and whites, or to eliminate social or economic disparities, much less to eliminate invidious discrimination. The purpose would be to establish both the fact of manifest injustice and of adequate compensation for that injustice as mutually agreed upon between the descendants of former slaves and the government of the United States.
Why isn’t this self-evidently a good idea?
Nobody in their right mind disputes that slavery was a great evil. I’ve heard plenty of people argue that African Americans have been adequately compensated since the end of slavery, but it’s very easy to demolish such claims – and Coates does an excellent job of that in his article. (And, I should stress, that this is the real point of his voluminous articulation of the ways in which African-Americans have been disadvantaged in the years since the passage of the Thirteenth Amendment. If reparations are intended to compensate for all the ways in which African-Americans have been disadvantaged over the decades, then we’re dealing with a much more amorphous subject. So I understood Coates’s point in including so much material about the post-slavery years to be making the case that proper recompense for slavery itself has never been made, but that the injury has, rather, been more often compounded.)
The most common objections are that reparations would be looking backward rather than looking forward; that they would be logistically impossible to set up; and that it would be unfair to punish the living for the sins of the dead, particularly when the living may have no biological link with the dead. None of these objections strike me as very telling. Questions of justice are always backward looking, after all. The logistics of reparations get much simpler if the structure worked the way I described above – most important, there would be a clear incentive to limit the potential number of claimants, since we’d be talking about distributing a fixed-size pie. And there is nothing unjust about the United States as a communal entity making reparations for wrongs committed by that entity – indeed, reparations is far more obviously just on that score than the various hacks we apply to our purported meritocracy. You can’t justly opt out of the burdens of American citizenship any more than you can opt out of the benefits.
So why is it obviously not a self-evidently good idea?
Coates himself thinks that resistance to reparations has to do with denial of the sheer extent and power of white supremacy. There’s probably some truth to that, but I think the explanation is a bit more complicated.
First of all, as noted, the number could be very, very large. As such, it could represent a substantial change to the distribution of property generally. Such changes are never looked upon with equanimity by people who actually own property. Nor should they be – once you start questioning the existing distribution of property in a fundamental way, it’s never clear where it will end. In a deep sense, property rights as such depend upon a willful ignorance about the sordid way in which property is often acquired in the first place. That’s an ugly truth – but it’s still a truth.
And if the number were not extremely large, then the effort at reconciliation would backfire – reparations would be perceived not as justice but as an insult.
This applies doubly if the assumption going in is that reparations would merely be studied. A study that concluded that the descendants of former slaves were owed, say, $10 trillion in aggregate compensation, and which then stopped with a study, with no follow through – that would not lead to reconciliation, but to fury. You can call that fury just, but you can’t be surprised if there’s a lot of resistance to going down that path.
Second, while Coates undoubtedly thinks of slavery as a unique evil, particularly deserving of reparations, it’s not at all obvious that other groups would see it that way. Indeed, it strikes me as extremely likely that a host of other aggrieved groups would jump on the bandwagon and press their own cases, citing slavery reparations as a precedent. We can all, I hope, intuit that slavery was sui generis, but it is not so easy to articulate a legal rationale for denying the applicability of the precedent that slavery reparations would set. The history of equal protection jurisprudence, and of affirmative action, is instructive in this regard.
Moreover, I wonder whether Native American groups wouldn’t have a real point in arguing that slavery wasn’t the only monumental collective injustice perpetrated by the United States government.
Third, I suspect that many observers question whether reparations would actually bring about the desired reconciliation, at least on terms that many white Americans would recognize. Suppose, for example, that reparations did not lead to a sudden and substantial narrowing of the socioeconomic gap between white and black Americans. Suppose, instead, that the gap proved relatively intractable; that the assets distributed through reparations were substantially lost in a generation through some combination of poor management or predation. There is an awful lot of evidence that lottery winnings do not generally lead to lasting socioeconomic gains for the winners. Might that not be predictive of what would happen after reparations? And, if so, wouldn’t we wind up having the same conversations we have now as a society?
I should stress that I don’t view this as a dispositive point against reparations. If a particular segment of society suffered disproportionately from heart disease, we would find it completely normal and just for the healthier segment to subsidize the care of the less-healthy. Indeed, we would think so particularly if the disparity proved intractable. It’s not obvious, therefore, why the justice of the case for reparations should be affected by the reasonable suspicion that reparations would not eliminate, and might not even make that much of a dent in, the socioeconomic gap between black and white in America. But it’s clear that the point is very telling for many people who expect to be on the subsidizing end of things.
Finally, and from my perspective most-tellingly, the case for reparations presupposes an organized community of descendants of former slaves who can argue the case, and, most important, accept the settlement. Consider, again, the negotiation over reparations in the aftermath of the Holocaust. There was a Jewish State, and a variety of diaspora Jewish organizations, including organizations explicitly structured to speak for the survivors and for the families of victims. There is no comparable representation for the descendants of former slaves. If the social purpose of reparations is to effect reconciliation, each “side” must be in a position to accept the settlement. It’s not obvious that this is the case with respect to the descendants of American slaves. And it’s not obvious that black Americans would want to divide themselves between beneficiaries of such a settlement and those who have no proper claim.
I’ve made the argument before that much of what exercises Coates these days feels like it leads logically to black nationalism. Coates appears to me to be looking for an alternative to nationalism that would have a similarly cathartic effect, something that would transform America itself in a revolutionary manner. I’m very sympathetic to that particular search – it’s a reflection of Coates’s seriousness both about his sense of history and of his Americanness. But I’m not sure that such an alternative exists. Nationalism is, for better or worse, the principal way a community establishes a level of equal dignity vis a vis other communities – particularly another community that oppressed it in the past. There can be no reconciliation without first a sundering.
If you close the door to nationalism, you’re left looking for ways to make your existing nation – America – the kind of place with which you can wholly and unequivocally identify, notwithstanding all that you know about the past. But that path puts a great deal of psychic power into the hands of other Americans who don’t necessarily feel the urgency that you do. Outside the context of black nationalism, that’s the psychic risk of the reparations movement.
Is it a risk worth taking? I leave that to Coates to decide for himself.