Reparations within the Rule of Law

March 4, 2006 | 38 comments
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At the upcoming slavery reparations conference at Thomas Jefferson School of Law, I will speak on the topic of reparations within the rule of law. My paper is still (ahem) a work in progress. However, I know the structure of my remarks, and I just turned in my abstract (so that our publicity folks could get to work on the printed materials). The abstract of my presentation is as follows:

Kaimipono David Wenger: Reparations within the Rule of Law

The question of reparations for slavery raises a number of concerns. One important question is whether reparations can fit within the rule of law. This question relates to underlying concerns about who defines the rule of law and what the rule of law includes.

The rule of law is a broadly respected concept in legal discourse, and is viewed as an important element undergirding society’s interaction with the law. A strong rule of law creates several benefits for individuals and for society. The rule of law can serve as a safeguard against certain kinds of tyranny and oppression. In addition, a perception of a robust rule of law lends legitimacy to laws and legal regimes, and streamlines legal experience.

The rule of law as a concept is not always well defined. At its most basic, the concept requires that individual interactions with law be based on application of law rather than arbitrary exercise of power; that laws be equally applied to all individuals; and that laws be knowable and performable. Some influential formulations of the rule of law, such as that offered by A.V. Dicey, follow this basic structure and are almost entirely procedural in nature. Such exclusively procedural formulations are not universally accepted, however, and longstanding debates exist on whether the rule of law is capable of bearing substantive content.

Slavery reparations present special challenges to the rule of law. Reparations potentially involve the transfer of large amounts of money to a class of people – descendants of an original harmed group – who are seeking payment over a century after the initial harm. In addition, the cost of this transfer will necessarily fall on at least some parties who are not morally culpable for the original harm. These aspects of reparations raise complex concerns relating to the rule of law, which should be addressed before any restitution is possible. While these concerns are certainly reasonable, examination of the broader rule of law concerns shows that the greatest offense to the rule of law would arise from not paying reparations.

Reparations are an acknowledgment of the displacement of the rule of law under slavery, a displacement which in turn created a regime of lawlessness and repression. Slavery was only made possible through the removal of rule of law protections as applied to one segment of the population – Blacks. The denial of rule of law protection for Blacks did not end with slavery, but continued for a century or more after slavery’s end. Blacks were denied civil and political rights and meaningful participation in the political process until the civil rights era; even today, they struggle for equal rights.

Given this background, reparations serve as a form of atonement – a crucial signal to the Black community that society wishes to atone for its error and take concrete steps to repair the damaged community. Absent such a signal, the rule of law breach that began with slavery will continue, unhealed. The consequences of the breached rule of law – resentment, distrust of law, a perception that law is beholden only to power – will continue to negatively impact society and undermine faith in the rule of law.

Societal expression of remorse for rule of law breaches – coupled with concrete steps to ameliorate the harm – is a necessary step in repairing the damage done by slavery to the rule of law. Reparations show societal will to set things right following the removal of the rule of law protections for Blacks. They are also a way of affirming that such breach of the rule of law will not recur. Thus, payment of reparations allows society to move forward, and encourages disadvantaged groups to regain confidence in the rule of law. Not only are reparations consistent with the rule of law, they are in fact a product of the rule of law.

(cross-posted at Concurring Opinions).

(Apologies if this is a bit off-topic; I thought the subject might be of interest to the T&S readership. More conference information is available at Concurring Opinions, and at the TJSL website).

38 Responses to Reparations within the Rule of Law

  1. spencer bingham on March 4, 2006 at 10:26 pm

    What are reperations going to do. Besides what if you are a descendant of both slave;s and slave owners. What are you accomplishing someone who never owned a slave paying someone who has never been a slave.
    Slavery has been going on and still is in Africa. American blacks even poor ones are faring much better here than they would in Africa were some classes are treated better than other classes over there. Blacks over here got more than paid off for there slave labor. What can people who had no say in it do about it now.
    Besides descendants of people that went to Liberia who is better off descendants of those that stayed or descendants of those that went to Liberia.

  2. spencer bingham on March 4, 2006 at 10:28 pm

    Besides for the most part in the North and west blacks got treated pretty decently. Unfortuntly didn’t in the south but in north and west were treated ok.

  3. El Jefe on March 4, 2006 at 11:00 pm

    No one is morally culpable for something which ended almost 150 years ago.

    But where will it all end? Were my ancestors sent to the colonies as indentured servants because of breaking the law in Britain? Sue the Brits, because the punishment was out of proportion to the crime of stealing a loaf of bread. Was my great-great grandfather hanged for stealing and robbing. Sue the government because we don’t have that punishment nowadays.

    Were my ancestors displaced by William the Conqueror? I demand reparations!
    Did the Chinese imprison my uncle? I demand reparations!
    Did Napoleon invade my ancestors Russia? I demand reparations! Did the Vikings sack my village? I demand reparations. Did Genghis Khan’s Mongolian hordes assassinate my ancestors in Poland? I demand reparations! Did my ancestors arrive from Africa in 1922? I demand reparations. Did they come from Haiti in 1976? I want reparations! Did Alexander the Great’s soldiers invade India in 336 BC? I demand reparations!

    Let’s commission a government blue ribbon panel to add up all plusses and minuses for all historical events back through history, and report back by 2050. By that time we should have enough genealogical informations to be able to work it all out.

    Let’s see, El Jefe. Our indications are that you are 1/512th part Ukrainian. Ukrainians have 43 acts of subjugation of other nationalities, and 121 acts of subjugation by other nationalities. Without going into the particulars of how evil these subjugations were, we have decided that you are owed $0.25 by the reparations committee. On the other hand, we have established that your 1/256th part French ancestry means you have 25 acts of subjugations by other countries (mostly recently), and 169 acts of subjugation of other countries (mostly anciently). So, you owe $2.48, to the reparations committee.

    Now, let’s move on to your 1/1024 African ancestry, from Egypt, via Lebanon, Phoenicia, Sicily, Turkey, Romania, Yugoslavia and Czechoslovakia to the USA…

  4. Ivan Wolfe on March 4, 2006 at 11:06 pm

    Let’s see:

    I have Native American and Irish ancestors. Considering the forced relocation to reservations of my Native ancestors and the days of “Irish need not apply” – do I deserve reperations?

    None of my ancestors were slave holders in America. I just don’t get it. Reperations sounds sorta like communism, in fact: The forced removal of money from one group to another, though it’s from white to black rather than rich to poor. And since the rich have historically oppressed the poor, should we have reperations to the lower classes?

    Would rich upper class African-Americans get as much as the lower class ones? Would we give reperations to the descendents of Chinese immigrants forced to live in slave-like conditions on work camps and denied citizenship in the USA?

    My big problem with reperations is that there’s really nowhere to stop.

  5. spencer bingham on March 4, 2006 at 11:25 pm

    el jefe are you the owner of the byu sports message board or a different el jefe?

  6. Steve L on March 4, 2006 at 11:34 pm

    Has anybody heard of slipery slope? Also, if anyone can point out a Saxon minority that’s suffering in urban slums under the oppresion of ascendant Normans and from lack of equality of opportunity, I’d like to hear about it. I suppose it doesn’t mean anything to you that all the promises made to freed slaves during the reconstruction (and indeed the civil rights movement) came to naught. That wealthy whites like us can be so insensitive and unfeeling towards the suffering of millions is truly astounding to me. But you three are probably right–reparations have no moral basis, and I’m sure King Benjamin would agree with you.

  7. Steve L on March 4, 2006 at 11:35 pm

    ok, so I can’t spell slippery

  8. Steve L on March 4, 2006 at 11:37 pm

    Besides, this post was about law and not morality and even though I have nothing to contribute on legality or rule of law I’m sorry to have steered the discussion further astray.

  9. El Jefe on March 4, 2006 at 11:44 pm

    No, not that El Jefe.

    But my ancestors are latinos, and I am an immigrant, and I can hardly wait to get my share of Texas, Arizona, New Mexico and California. At today’s real estate prices, I should be a billionaire soon.

  10. Ivan Wolfe on March 4, 2006 at 11:46 pm

    Steve L -
    I’ve heard of slippery slope. Usually used in these terms:

    People told us “gay marriage” would never lead to the legalization of polygamy – yet the Canadian government has sponsored a few studies on whether or not to legalize polygamy (though the studies were mixed).

    When the income tax was introduced, people were told it would never, ever get above 8 or 10 percent.

    When government welfare was introduced, the idea of people becoming totally dependent on welfare and having children just wasridiculed as ridiculous (this is not an anti-welfare argument on my part. I think it does more good than harm, but one can’t deny the fact of many people living the “welfare lifestyle”).

    In fact, Progressives usually trot out the “slippery slope” refutation and then, 15 or 50 years later when the end of the slippery slope is reached, they deny they every claimed that.

    see this interesting post by a libertarian leaning commentator (not on reperations, but the general principle applies):

    http://www.janegalt.net/blog/archives/005244.html

    a few excerpts:
    They may well be right. Nonetheless, libertarians should know better. The limits of your imagination are not the limits of reality. Every government programme that libertarians have argued against has been defended at its inception with exactly this argument.
    Let me take three major legal innovations . . .

    The first, the general one, is well known to most hard-core libertarians, but let me reprise it anyway. When the income tax was initially being debated, there was a suggestion to put in a mandatory cap; I believe the level was 10 percent.
    Don’t be ridiculous, the Senator’s colleagues told him. Americans would never allow an income tax rate as high as ten percent. They would revolt! It is an outrage to even suggest it!
    Many actually fought the cap on the grounds that it would encourage taxes to grow too high, towards the cap. The American people, they asserted, could be well counted on to keep income taxes in the range of a few percentage points.

    Oops.

    and

    The description of public housing in the fifties is shocking to anyone who’s spent any time in modern public housing . . . Public housing was, in short, a place full of functioning families.
    Now, in the late fifties, a debate began over whether to extend benefits to the unmarried. It was unfair to stigmatise unwed mothers. Why shouldn’t they be able to avail themselves of the benefits available to other citizens? The brutal societal prejudice against illegitimacy was old fashioned, bigoted, irrational.
    But if you give unmarried mothers money, said the critics, you will get more unmarried mothers.
    Ridiculous, said the proponents of the change. Being an unmarried mother is a brutal, thankless task. What kind of idiot would have a baby out of wedlock just because the state was willing to give her paltry welfare benefits?
    People do all sorts of idiotic things, said the critics. If you pay for something, you usually get more of it.
    C’mon said the activists. That’s just silly. I just can’t imagine anyone deciding to get pregnant out of wedlock simply because there are welfare benefits available.
    Oooops . . .
    Indeed, to this day, I find the reformist side much more persuasive than the conservative side, except for one thing, which is that the conservatives turned out to be right. In fact, they turned out to be even more right than they suspected; they were predicting upticks in illegitimacy that were much more modest than what actually occurred–they expected marriage rates to suffer, not collapse.

    and so on.

  11. Kaimi Wenger on March 4, 2006 at 11:59 pm

    Hmm, a fair amount of comments already.

    I should start by noting first, that my paper isn’t a general “it’s good” or “it’s bad” statement. I’m examining a particular, specific question — whether reparations are consistent with the idea of the rule of law. In prior articles, I’ve discussed reparations and the takings clause (53 American Unviersity 191 (2003)) and causation and attenuation issues relating to reparations (40 University of San Francisco Law Review __ (forthcoming 2006)).

    So I haven’t attempted to make any case for reparations in a general sense in the original post. Nevertheless, I think a strong moral case can be made for reparations.

    In my mind, one of the strongest moral claims for reparations is a combined argument. First, the obvious, that slavery was a horrific removal of rights directed at a particular group of people. If that kind of thing were to occur _today_, it would certainly be an offense that would merit restitution.

    Thus, the biggest claim against reparations is that too much time has passed. It has been 150 years since the end of slavery. Why did slave descendants wait this long to bring claims? And the answer to that, is that they didn’t. Slaves and slave descendants pressed claims from the beginning. And they had no recompense in court. Courts were not receptive to Black litigants; the political process excluded them; they had no avenue available to bring their claims.

    The reason why slave descendants are bringing claims in 2006 is because it is finally possible for them to actually be heard in court. Now, it is possible that once claims are heard, various distributional and other problems will mean that reparations are impractical. But allowing defendants to bar claims by saying “too much time has passed, so you can’t bring claims” seems to be rewarding bad behavior. It is in essence saying “if you oppress a group and violate their rights, you’ll normally have to pay. However, if you oppress them and violate their rights, and then effectively exclude them from the courts and the political process for over a hundred years more, then you’ll be able to say sorry, too much time has passed.” And that’s an unacceptable, absurd result. You don’t get away with a massive, societal wrong by adding another wrong on top of it.

    In law, there is a concept of equitable tolling. That is, suppose that you hit me with your car – a straight up tort claim, and I’ve got 6 years to bring it. If you impede me from court and prevent me from bringing my claim, through your own malfeasance, then you can’t hide behind the statute of limtiation. The same concept applies in reparations. The only reason 150 years has passed without effective claims is because society was continuing to stick it to Blacks.

    And we’re all apparently okay with this?

    (I’ll continue later – have to put kids to bed).

  12. Oiir on March 5, 2006 at 12:00 am

    “I suppose it doesn’t mean anything to you that all the promises made to freed slaves during the reconstruction (and indeed the civil rights movement) came to naught.” As far as reparations are concerned, no it doesn’t. I didn’t make any of those promises and I don’t mean to pay for them.

    Reparations are a bad idea, they ought not to happen. It will not be good if they happen.

  13. Oiir on March 5, 2006 at 12:05 am

    “It is in essence saying ‘if you oppress a group and violate their rights, you’ll normally have to pay. However, if you oppress them and violate their rights, and then effectively exclude them from the courts and the political process for over a hundred years more, then you’ll be able to say sorry, too much time has passed.’ And that’s an unacceptable, absurd result. You don’t get away with a massive, societal wrong by adding another wrong on top of it.”

    Well I don’t know about you, but I haven’t oppressed or violated any group’s rights.

  14. Ivan Wolfe on March 5, 2006 at 12:06 am

    Kaimi -

    that makes a bit more sense, actually. However, then shouldn’t we only take reperations from people that are overtly racist and only give it to the actual descendents of slaves?

    I’m just trying to figure out why someone (this is an exaggerated example) like my parents who are rather poor, aren’t racist at all, have lived in Alaska most of their lives and have no ancestors with ties to slavery should be expected to fork over a few hundred dollars to a rich African-American doctor in New York who comes from a family that has been rich and prosperous for several generations?

    I know that’s exaggerated, but if reperations go forward, that will happen more than a few times. Not in the majority of cases, but in enought that it’s still a problem.

  15. El Jefe on March 5, 2006 at 12:10 am

    The government has no money of its own. Only what it takes from citizens.

    So, regardless of the question of whether reparations are due, yea or nay, what is the governments claim of culpability against those living today, to force them to make reparations?

  16. Kaimi Wenger on March 5, 2006 at 12:32 am

    Oir,

    If you think “I didn’t do it so it doesn’t matter to me” is an acceptable excuse, then you’re in the wrong church, buddy.

    The Book of Mormon is full of examples — when a _nation_ sheds innocent blood, the blood of those slain attach to the nation, and cry out, until they are paid for. You can’t say “I didn’t do it.” The blood of the innocent attaches to the nation. We see it in Mormon and in Alma and in D&C 135 — the blood of Joseph Smith attaches to the state of Illinois. We see it in the ten commandments — that God will visit the sins of the fathers to the children, down through multiple generations. As Mormons, we can’t say “not my fault” — it’s in our canon, the shedding of innocent blood creates a debt that attaches to the nation. If you’re an American, you’re a citizen of a country that actively participated in the massive shedding of innocent blood and then never paid for its crime. That blood will continue to cry from the ground, until an atonement is made.

  17. Ivan Wolfe on March 5, 2006 at 12:49 am

    Kaimi -

    hmmm. Then what about the promises that if the children repent, they will not be held responsible for the sins of the fathers? Do you favor not taking money from people who have repented of the sins of their ancestors?

    And what about those whose ancestors didn’t engage in racism or slavery?

    And if we hold you to 16, we really are on the slippery slope to reperations for my Native and Irish ancestry.

  18. Jim F. on March 5, 2006 at 1:01 am

    So, Kaimi, does your last comment, taken with the previous one, mean that this thread is now about reparations rather than about the question of whether reparations would, if possible, fall within the rule of law? If so, that’s too bad. The original question had something we could discuss, even if it had nothing to do with being a Mormon. The “are reparations just?” hi-jack has nothing to discuss, though it, too, has nothing to do with being LDS. It has nothing to discuss because the chances of respondents actually discussing the hi-jack question rather than each person submitting his or her personal rant are zero or less.

  19. Serenity Valley on March 5, 2006 at 1:20 am

    Kaimi,

    So, by using reparations as a signal to build African-Americans’ faith in the rule of law, we’d really be benefitting everyone, wouldn’t we? I mean, people are a lot more likely to value compliance with the law if they feel assured that they benefit from others’ compliance, aren’t they?

  20. J. Nelson-Seawright on March 5, 2006 at 1:24 am

    Kaimi,

    Clearly I come to these kinds of questions from a thoroughly different professional point of view than you do. I’m used to rule of law as a social-science concept that covers procedural issues, while the details of how rights are assigned to different groups are regime issues. It seems plausible to me that an argument could be made, from the latter point of view and from a perhaps unusually inclusive version of democratic theory, that reparations are morally necessary. African Americans still suffer on virtually every socioeconomic and demographic indicator in comparison with Anglos. That differential seems to have been caused directly by the legalized repression of and denial of the basic human rights of African Americans, so present-day divergences are a long tail of prior discrimination. Furthermore, differences in resources (education and wealth in particular) clearly translate into differential access to political power. Hence, prior discrimination has the consequence of present political inequality. If this argument were widely enough accepted to be passed into law, then it seems clear to me that the resulting reparations would be compatible with the rule of law.

    But your discussion seems to presuppose that the decision will be made in a judicial and not a political context, no? You say that “reparations serve as a form of atonement” which restores the rule of law. I’d like to hear more about the concept of rule of law underlying this statement. It seems interesting — it’s a moral debt that can be erased by an offsetting or perhaps overwhelming payment offered by an entity other than the one responsible for the original injustice. In that sense, the idea here reminds me somewhat of Christ paying off our sins with an infinite — but partially unrelated — sacrifice…

  21. Kaimi Wenger on March 5, 2006 at 1:33 am

    I’m going to heed Jim’s advice and step away from the general issues. Sorry for joining in the threadjack, everyone. However, as noted above, I haven’t really laid out a general case for reparations, and that project is way beyond the scope of this thread. I do think that there are uniquely Mormon reasons to believe that atonement and payment is necessary, but let’s put those on a future-post shelf for now.

    (One very quick side note – Ivan, many Native Americans and their descendants, got some level of compensation. One of our conference speakers is going to be talking about the experience of restitution for mistreatment of Native Americans).

  22. Kaimi Wenger on March 5, 2006 at 1:45 am

    Serenity,

    That’s the basic idea. We all benefit from a robust rule of law. It sends a signal that the law is what is paramount, and that no individual or group can abuse the law. When one or more groups feels less confidence in the law, it undercuts the law’s ability to interact properly with society. (And — surprise, surprise — Blacks are one of the demographic groups with the lowest levels of confidence in a just rule of law in today’s America).

    J. N-S,

    I like the way you discuss this. I’m writing in response to direct and indirect statements that reparations would violate the rule of law.

    To the extent that the rule of law requires only procedural protections, reparations would clearly be in compliance with the rule of law. (Unless it violated those procedural protections, which it probably doesn’t). So reparations opponents are themselves invoking a rule of law that includes substantive, not just procedural, content.

    Once we open up the concept to substantive content, the question is whose substance gets included. One easy candidate is that the rule of law includes some idea of a participatory democracy which allows people to have a voice. As you note, Blacks have suffered from exclusion from full participation in the political process.

    But more than that, I’m suggesting that under slavery itself, the rule of law was violated. This assertion is definitely not one that would be unanimously accepted. After all, some theorists have suggested that you can have Nazi Germany within the concept of the rule of law, as long as everyone’s vote is properly tabulated. I don’t accept that; I cast my lot with those who believe that the rule of law contains more than that. At the very least, a Rawlsian conception of rule of law; possibly more.

    If slavery violated the rule of law, the question then becomes, what now? Slavery was a regime of lawlessness because it was a violation of the rule of law. It took out various principles and protections, and replaced them with arbitrary rule of power. And then society basically shut the book. This sends the message — we can and will remove rule of law protections as applied to some members of society, and will then pretend like nothing happened. That message is not one that is conducive to building a strong rule of law. Rather, rule of law violations need to be met with recognition and remedy of some sort.

  23. El Jefe on March 5, 2006 at 2:04 am

    600,000 dead would seem to be a fairly strong penance to have paid.

    “Yet, if God wills that it continue 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, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.” (Lincoln’s Second Inaugural Address).

    The South paid heavily for slavery. Hundreds of thousands dead (most of them from non-slave owning families), and property destroyed, lives destroyed. Economic ruin for most wealthy people.

    Over and above it all, slavery was legal. Not moral, but legal, as it has been for most of the history of the world.

  24. Stephen M (Ethesis) on March 5, 2006 at 11:02 am

    the cost of this transfer will necessarily fall on at least some parties who are not morally culpable for the original harm

    Interesting thought. A number of nations in Africa are quite nervous about the entire reparations issue, as the slave trade originated there, and they bear as much blame as any other group.

    I’ve two Greek grandparents who were born in “Asia Minor” back when Greeks were subject to forced levies for the Ottoman Turk slave system. They were forced from Turkey in the pograms of WWI and my grandfather spent the war in a concentration camp.

    On my father’s side I’m decended from John Marsh, who came over in the William and Mary Company as a bond servent.

    I gather that Kaimi doesn’t consider affirmative action to have been a form of reparations, and I’m curious about procedural aspects. It appears his theory is that there is no res judicata. If you want reparations, you are entitled to just keep filing suit until you get them?

    No finality of judgment as long as you claim you were improperly impeded. I did deal with a litigant who felt that way, a score of suits in state and federal courts. The arguments were identical.

    Interesting, and trendy, and a good move towards tenure.

  25. Stephen M (Ethesis) on March 5, 2006 at 11:12 am

    I reread my last post. The conclusion is much too snarky, I’ve been visiting the Snark too much, like an alcoholic hitting the sauce.

    My apologies. I think the conference will be interesting, and I do think it is a good move towards tenure, and is one of many trends, but combining those thoughts in the last sentence implies too much and is not kind enough.

    That was untoward and I don’t think Kaimi deserves that.

  26. J. Nelson-Seawright on March 5, 2006 at 11:57 am

    Kaimi,

    Thanks for the thoughtful response. I find myself concerned that you’re perhaps packing too much into the concept of rule of law, and then letting too much of the argument ride on that definitional decision. Particularly at stake here are concepts of “rule of law” and “democracy.” Your approach would seem to make democracy a component of rule of law. The problem is that there are nondemocratic regimes in which courts are obeyed and government actions follow the written rules. Isn’t it useful to retain a distinction between democracy and rule of law, so that we can differentiate between cases like that and nondemocratic regimes in which government actions are totally unpredictable?

    By the way, are you familiar at all with Guillermo O’Donnell’s work? He’s been writing about the links between democratic theory and the rule of law, as well. Perhaps the best citation would be O’Donnell 2001, Studies in Comparative International Development, “Democracy, Law, and Comparative Politics,” Volume 36, Number 1 / October 1, 2001.

  27. chronicler on March 5, 2006 at 12:09 pm

    The hot button for this issue is always reparations for slaves. What about others whom the government has oppressed? Will the Mormons be the next in line? Will the federal government be culpable for their losses or just the states involved? And who will determine just who will be paid. Will a genealogically proven line be necessary for anyone to receive reparations? Or can anyone of the oppressed group step in line and receive a payment.

  28. Stephen M (Ethesis) on March 5, 2006 at 12:51 pm

    Will the Mormons be the next in line? Will the federal government be culpable for their losses or just the states involved? And who will determine just who will be paid. Will a genealogically proven line be necessary for anyone to receive reparations? Or can anyone of the oppressed group step in line and receive a payment.

    I wondered about that as a child. “Forget not the …. stand firm and be faithful and true …”

    My grandfather wrote on the Balkans and on the ethnic cleansing of the Greeks from Turkey — he considered it, in retropsect, why Greece and Turkey were able to work together while Bulgaria could not. Instead of bitterness, he saw it as a step towards reconcilliation — a divide that was thousands of years old.

    The way the Greeks responded to the earthquakes in Turkey bore out his hopes.

  29. Stephen M (Ethesis) on March 5, 2006 at 1:30 pm

    BTW, I enjoy the ever changing side bar comments:


    Quite possibly the most parsimonious, yet nit-picking, onymous Mormon group blog in history.

    Made me think of “Quite possibly the most parsimonious, yet nit-picking, poster in history.”

  30. tracy m on March 5, 2006 at 1:50 pm

    There is NO way reparations could ever be meted out with Justice and Mercy, let alone fairness.

    The idea of a current generation, who has neither repressed nor enslaved, being required to sacrifice to another current generation who has been neither enslaved nor repressed, is ludicrous. Then who will pay reparations to my children, for being unfairly asked to finance the reparations? Bad, bad idea.

    Sounds like an idea steeping in an (un)healthy dose of white liberal gulit, if you ask me. No thanks.

  31. ed on March 5, 2006 at 6:10 pm

    I have a question for those in favor of reparations: if we pay them, and then in 20 years we find that African Americans still lag in socio-economic measures, will we need to pay reparations again?

  32. El Jefe on March 5, 2006 at 6:37 pm

    Of course. And whatever is paid, it won’t be enough.

  33. Kaimi Wenger on March 5, 2006 at 6:53 pm

    Ed,

    I suppose it depends on who you ask, but most reparations advocates with whom I’m familiar are in favor of payment over some limited period of time. (This includes legal academics like Roy Brooks and Robert Westley).

    Looking at distributional problems at this stage, however, involves a bit of putting the cart before the horse. My own writing in the area so far has avoided distributional questions almost entirely. There are simply enough other concrete legal questions to focus on — such as rule of law concerns, as laid out in this piece.

  34. Stephen M (Ethesis) on March 6, 2006 at 1:44 pm

    There are several arguments commonly made against reparations. I am not to blame if they look like straw men:

    1. Cash reparations are historically made between governments, and the governments who would receive the cash payments in regards to the American slave trade (vs. the rest of the slave trade) are ones who are complicit in the slave trade (and often still have the slave trade going on) and who should be paying the lion’s share of the reparations themselves.

    2. Individual reparations are historically made by repatriating — i.e. returning — the individuals involved. As Red Fox was famous for saying “return me, heck, I don’t want to go back to Chicago).

    3. For populations, baseline reparations are often measured against the non-affected populations (i.e. if your neighborhood was the victim of improper treatment, when rectifying the situation, you would be measured against neighborhoods that were not improperly treated). The baseline populations are all worse off.

    4. Reparations are generally targeted for groups who would prefer not to be where they are. More Blacks actually came to the United States by immigration than came by the slave trade and none seem to want repatriation.

    5. Reparations have already been made by virtue of the affirmative action and welfare programs of the last thirty years with the result that fewer Black men graduate from college (per capita) than graduated in 1973. We’ve done enough harm to the Black population already, and we’ve already paid reparations, enough is enough.

    6. Other groups deserve them more (i.e. American Indians vis a vis the BIA, Italians and Greeks who actually have fewer per capita members in graduate schools than Blacks, yet get no affirmative action support, Mormons driven from their homes illegally by state action, the Cherokee and the Trail of Tears, which has at its focal point all the confiscated property — they took their boots and shoes and spinning wheels and plows and such as a part of the relocation, it was not only a forced relocation, it was full scale plunder, concentration camps and then relocation). (Some of the people who make these arguments, like the Cherokee, make you almost cry at the injustice and the wrongs done them, others make you wonder how they make their claims with a straight face).

    You’ve probably already seen the holes in these arguments before I’ve gotten this far. The general arguments seem to focus on who receives reparations, who they get the reparations from, what reparations should be, and how they should be administered, many with moral issues or aggressively hostile slants (i.e. everyone who wants reparations should be given a thousand dollars and a one-way ticket to Liberia) that come across more as an insult than rational discussion.

    The real benefit to the entire debate is the chance that it will help us re-conceptualize what we are doing now as to both the silly arguments and the serious ones.

    And, they may teach us a new way of talking about the issues.

  35. jinnmabe on March 6, 2006 at 9:53 pm

    Obviously, for the reparations to qualify under a rule of law analysis, they’d have to be undertaken with some idea of giving them to persons who are actually related to the original wrong, and taking the funds from persons who are actually related to the original wrongdoing. Otherwise, it’d just be an arbitrary exercise of power and redistributing wealth, right? So, under that definition, it seems to be your position that “persons who are actually related to the original wrongdoing” can be satisfied by invoking the idea of a national identity which has persisted since slavery’s time, and in which we all currently somehow participate.* Is that right?

    *In fact, it would seem it can ONLY be satisfied that way, since, as has been pointed out, making people who have never owned a slave, and whose ancestors have never owned a slave pay for other people’s sins is certainly not consistent with a rule of law kind of thing. Or do you think it is?

  36. El Jefe on March 7, 2006 at 12:28 am

    Would it not, under the general title of “reparations”, for the survivors of Union soldiers who died to free the slaves, demand reparations from those who were freed through the sacrifice of their lives?

  37. El Jefe on March 7, 2006 at 12:29 am

    Not survivors, but relatives of those who died.

  38. Stephen M (Ethesis) on March 8, 2006 at 8:38 am

    What I would really like to see is a significant push to revitalize inner city schools, including the political structure.

    Most good school districts have administrative overheads of around 10 to 20%

    In some inner city schools the administrative burden is as high as 67%, When grants come in, it can run higher. The money is not getting to the children.

    We need to reach the poor in every area (including most of the state of Utah, most young married are by definition “the poor”) in a better way, both in education and reclaimation.

    If the reparations debate could revisit what we are doing in terms of affirmative action and such, towards a more effective path (affirmative action is our generation’s reparation effort), it would help.

    After all. A business that has an affirmative action program outperforms the market. That tells me that in the “real world” that pushing to overcome discrimination is still necessary, because it still pays off. In a university, the reverse happens. That tells me that something is seriously messed up, and I think it occurs at the root, in primary and secondary education.

    I don’t know, but I would hope we could do better for the “least of these, thy brethern” — regardless of what we call it.