Wrong Tack on Reparations

Last week, a “dream team” of lawyers, academics and others met in Washington to discuss a plan to press for reparations for the long and terrible injustice of American slavery. The new group, which includes Climenko Professor of Law Charles J. Ogletree, Jr., is discussing how it might use the courts to press the cause of reparations, and the purpose of last week’s meeting was to discuss the details of any planned lawsuit. So far, however, little has been announced on how the group plans to pursue its goal—the legal grounds of the suit, as well as who the plaintiffs or defendants might be, have not yet been made public. Unfortunately, the case for slavery reparations, while intuitively appealing, founders on the details of who should pay whom and of the assigning of centuries-old guilt.

Speculation on the lawsuit has thus far centered on the possibility of suing the U.S. government or corporations involved with slavery; Aetna Life & Casualty Co., for instance, has admitted that it may have issued policies to slaveowners insuring the lives of their slaves. However, the company claims that an apology is sufficient and that reparations for its past actions are not required.

We think Aetna has a good point. The problem in paying reparations is not the subtlety of the moral case against profiting from slavery, but rather the extreme difficulty in determining who owes how much to whom. It is laudable that Aetna has apologized for any possible role it might have taken in the institution of slavery. It cannot, however, be held financially responsible today for being complicit in the enslavement of men and women who are no longer alive and whose heirs have not been identified. Determining the descendants of the slaves insured by Aetna, setting the proper amount of reparations, and fixing the relative levels of compensation each recipient should receive would be horrendously difficult, and the practical hurdles to such reparations would make any requirement of payment untenable and unjust.

Assigning payments for reparations would have been far easier within the first generations after the Civil War. At that time, the victims and perpetrators of brutality would have been easily identified, much like the case of those forced to work as slave-labor for the Nazi regime during World War II, and reparations could have been paid directly to the victims or to their immediate survivors. But 136 years after the end of American slavery, no such direct payment is possible. Many Americans are descended from immigrants who came to the country after the Civil War; many families in the South did not own slaves during the period of slavery. And estimating the exact dollar obligation of a company like Aetna—reducing an indirect involvement in suffering to a dollar figure—would be a source of great conflict.

But powerful amends can be made for the cruelties of slavery without resorting to direct payments. As Americans, we should not deny the dark era of our history when slavery existed, as well as the hundred years after Appomattox during which African-Americans were systematically discriminated against and often brutalized—in all parts of the country, not only the South. The best way to make amends for participation in the injustices of both slavery and Jim Crow would be to recognize them publicly and to ensure equal opportunities for all Americans in the future.