Mon 8 Dec, 2008
Walter Olson, a conservative opponent of the U.S. legal system, has an opinion piece out today in the fall issue of City Journal, in which he argues that the slavery reparations movement has “completely disappeared from the national agenda.”
This is, of course, a puzzling argument on the surface, given that the last two years have seen an unprecedented outpouring of state and federal apologies for slavery, often seen as a precursor to reparations, and federal reparations legislation pending for twenty years finally advanced to the hearing stage during the current Congress.
Could Olson be right, though, or at least have an important argument to make about the reparations movement?
Olson is well known for arguing that many forms of litigation in this country are excessive, so he would be naturally predisposed against at least the older, lawsuit-based approach to slavery reparations. Indeed, he has made similar arguments against the reparations movement on the op-ed page of the L.A. Times and in his own blog, Overlawyered.
However, his argument, in an essay entitled, “Reparations, R.I.P.,” goes well beyond the tired reasons why lawsuits demanding reparations for slavery are doomed as a matter of law and public policy. The back story is that Olson is working on a book about the role of law schools on the law, and in a draft chapter, he argues that legal academics have been among the strongest advocates of the reparations movement.
Reparations in the national consciousness
As far as I can tell, a key aspect of Olson’s argument is simply mistaken. He claims that reparations were all the rage around 2001, but that today, “reparations seem to have completely disappeared from the national agenda. Few mention them anymore.” This is certainly not true if one considers, for instance, how often reparations are discussed in newspapers and journals, or if one takes blogs as a rough measure of what issues are generating attention these days. (Olson admits that by his chosen measure, there are an average of about 1,000 news stories each year mentioning slavery and reparations.)
This is also an odd argument to make, given that the issue has gained unprecedented political prominance in the last two years, as legislatures in state after state have apologized for slavery and as the federal reparations legislation sponsored since 1989 by Rep. John Conyers (D-Mich.), now chair of the House Judiciary Committee, advanced to its first public hearing within the last year.
Olson would appear to be mistaken in his central thesis, if for no other reason, than because it was only in July of this year that the U.S. House of Representatives apologized for its role in slavery, in H.Res. 194, and announced “its commitment to rectify the lingering consequences of the misdeeds committed against African Americans under slavery and Jim Crow.” Whether or not such a commitment would take the form of anything resembling reparations, this is surely a dramatic step forward for that movement.
Reparations lawsuits and political solutions
I can only assume that Olson has been lead astray by his focus on lawyers and the legal system, and by his interest in reparations as a subject for his forthcoming book on law schools. This seems to have caused him to focus on the movement for reparations lawsuits, including the pioneering work of Professor Charles Ogletree of Harvard Law School, who appears in Traces of the Trade to discuss those lawsuits with us.
The demise of the reparations lawsuits, which was entirely predictable, naturally resulted in a steep decline in debates about proposals for reparations lawsuits among serious observers of the legal system. This does not mean, however, that reparations proposals lost steam; instead, however, the focus shifted quickly to the political arena.
Olson also ventures into the subject of political forms of reparations, but here he stumbles badly. He argues, for instance, that increased federal spending on “social welfare, education, housing and urban programs,” as well as affirmative action and similar programs in education and employment, amounted to reparations in all but name.
Were Olson more familiar with this subject, he might have addressed the obvious counter-argument that most of these programs were not targeted at blacks and did not, in fact, principally benefit blacks. Instead, Olson makes the astonishing claim that U.S. spending on these programs was “aimed primarily at relieving the problem of black poverty” and that these programs merely “didn’t make race a prerequisite for eligibility,” despite the fact that most beneficiaries of federal welfare programs and education spending, for instance, were white. Olson also fails to address the related issue which looms very large when comparing these programs to slavery reparations, namely, that these programs did very little to actually compensate blacks for the inequities resulting from the nation’s long history of slavery and discrimination. To say that the small portion of federal spending on these programs which reached black citizens was merely a “drop in the bucket” would be a serious understatement.
Dispelling myths about race
Olson does make an excellent point when he notes that one major difficulty for the reparations movement has been public opinion: despite the considerable publicity for the idea since 2001, white Americans still overwhelmingly oppose the concept. However, here again he misses an essential aspect of the issue. Olson naively claims that the rise of the slavery reparations debate has already caused Americans to engage in “national introspection” and to arrive at a “rough consensus” that any form of reparations would be an inappropriate way to address the nation’s difficulties with race.
In fact, even now, most Americans remain woefully ignorant of the basic facts of the nation’s history on race. Time and again, I have spoken to those who oppose reparations, in large audiences or one-on-one, and found that their objections were quite reasonable, but based on wildly mistaken understandings about the history or the contemporary state of race relations.
This widespread lack of basic information does have a positive side: I have encountered few people who, after learning a bit about the facts, don’t become far more open to addressing the legacy of slavery and discrimination in ways which they would previously have opposed. Whatever the “rough consensus” might be, after a national conversation which brought the facts to the attention of most Americans, it is impossible to say that it would not favor any form of slavery reparations.
Olson is at his strongest when he notes, almost in passing, that the reparations movement has “helped undermine … the irritating smugness of many whites whose forebears had never resided in the South or owned slaves”:
The more institutions remote from Southern history could be linked to slavery, the more seeming bystanders—the Rhode Island bank teller, the railroad employee in Colorado, the Seattle engineer descended from recent immigrants—could plausibly be portrayed as undeserving inheritors of “white privilege.”
Olson seems to assume that despite the validity of the historical claims involved, it is inappropriate to portray these innocent Americans as the inheritors of unearned privilege. However, he does so only in the context of condemning the idea of reparations lawsuits, which he understandably believes are an inappropriate means of addressing this legacy. As a result of this single-minded focus, Olson never does explain what, if anything, he would have our nation do to address enduring legacy of slavery and discrimination.
johninca says:
Well, I'm probably very lonely as a social conservative who supports the concept of reparations. It's not based on some sort of white guilt, because anti-racist whites are not guilty.
However, the slave states *as states* were involved in a crime against humanity. The full weight of the law and police were arrayed against slaves, and even against anti-slavery whites. As a Catholic Christian I could have been jailed or even lynched for teaching slaves to read, let alone performing an act of mercy to a runaway.
As the oppression came from the state, the state has a clear duty of restitution. To me the case is quite clear and compelling.
James says:
I think this is a healthy and constructive way to look at the situation, John. It's not about casting blame on individuals, and certainly not on anyone alive today.
It's about acknowledging the deep involvement of our society and its institutions in slavery and its aftermath, and pondering whether our society therefore has any responsibility for the consequences.
I would just add that the "slave states" included both northern and southern states. The northern states had slavery from their earliest days as colonies, and the north had not finished emancipating its slaves by the time of the Civil War.
Northern complicity in slavery went beyond slave-owning, too, to include undertaking most of the slave-trading and profiting enormously from slavery in other ways, as well.
So the duty of restitution of the state, if any, would seem to extend to all of the original states, at least, and to the federal government as well.
bobbo says:
As most often a liberal, and sometimes an ultra-lib, I would be surprised to find myself lonely by being against reparations by most of the formulations I have heard describing it.
I challenge anyone to identify "a clear duty of restitution." The general rule is that the State is immune from litigation unless it specifically grants it in specific cases.
I also would challenge any pro-reparations advocate (or James by way of examples) just what a reparations program in the USA circa 2009 should look like. What is given and who recieves?
I am against reparations to anyone except direct victims of an injustice and perhaps their kiddies. Doesn't matter who or what the issues are. These historical and oft time horrible issues are in the past. Looking for "meaning" from the past is never a good thing. It gives us unending disputes we can see all over the world.
I have violated a general ru le of good debate–going off h alf cocked. Each "plan" of reparations would stand on its own merits. Some think reparations means acknowledging the prior history and offering apologies. I'm fine with that. Some might say only similar experience of "like kind" can provide the moral equivalence==slave for a summer vacation? I would not su pport that. How about affirmative action of some sort? I think we have already done that. What other programs of reparations are suggested/sought for/set forth in legislative bills?
While for most plans I would probably object and not want, I would be perfectly happy to allow a majority vote of those participating to make such laws. Its the sort of thing where I think the Majority should have their way. It wouldn't be the worst law I could think of.
James says:
Welcome, bobbo! I'm glad you were able to find your way here from John Dvorak's site (http://www.dvorak.org/blog/).
There's an important legal distinction between a state's legal obligations and the ability of private parties to enforce those obligations against the state in court. Sovereign immunity is essentially immunity from litigation only, so it does not exempt the state from its legal duties, including any obligations to make restitution.
It's also not clear to me that John was making a legal argument when he said that states have "a clear duty of restitution" for their role in slavery. I suspect that he may have been making a moral argument with political implications, as many reparations advocates do.
Reparations advocates offer a variety of visions for the form which reparations should take. Some hold strictly to a traditional model of financial compensation to individuals who are identified as the descendants of slaves. Others advocate broad-based government social programs to assist those descendants of slaves (or broader groups) still struggling with disadvantage, or to improve schools, infrastructure, and whole communities.
Other proponents of reparations advocate different remedies. One common suggestion, for example, is to allow the descendants of African slaves to enjoy free education, at all levels, for a generation. Another suggestion would replace free education with an exemption from taxation.
As far as legislative proposals, as far as I'm aware, the only legislation currently pending on reparations is John Conyer's H.R. 40, which would merely establish a federal commission to study the issue, including specific proposals for reparations. So the door is wide open on the specifics.
Bobbo, why would you be in favor of paying reparations to the children of victims, and not to their grand-children or other descendants? Is this simply your rough measure of how long it takes for harm to stop being transmitted from parents to children?
If that's the case, does that mean you would support reparations for slavery and discrimination, if you could be convinced that the harm from those events is still being passed down in many American families?
bobbo says:
Sovereign immunity is essentially immunity from litigation only, so it does not exempt the state from its legal duties, including any obligations to make restitution. /// You are mixing legal and moral concepts up. The State's moral duties are whatever anyone wishes to argue and is only a means to establish a legal duty. Legal duties are set by law. If the state fails to enforce a legal duty, or engages in activities without legal authority they can be sued–as the State Allows also set by law. Basically, your statement and/or John's is wrong.
Bobbo, why would you be in favor of paying reparations to the children of victims, and not to their grand-children or other descendants? /// Things should not be left open ended. Most causes of action have a "Statute of Limitations" in order to be "fair" to the parties and to society and to offer some order in the court. I did say "perhaps" to the kiddies in recognition that the immediate victims of injustice can be too traumatized to protect their interests and the children often have damages directly as a result of that trauma. Each year/generation after that, the immediacy of that trauma lessens.
I understand and agree that part of some reparations claims TODAY include a notion of the continuing harm of discrimination that is part and parcel of the slavery that existed before making many blacks CURRENT VICTIMS of that harm. Its why there is currently already the availability of lawsuits for discrimination based on race. A poor remedy, but its there.
So–I don't think the harm from slavery is being passed down to this day. Its worse.
James says:
You are mixing legal and moral concepts up. The State’s moral duties are whatever anyone wishes to argue and is only a means to establish a legal duty.
I think we simply see the distinction between law and morality differently, bobbo. I don't believe that moral duties are merely a means to establish legal responsibility; morality can extend far beyond what is required by law. On the other hand, I don't believe that legal duties are limited to what morality dictates.
If the state fails to enforce a legal duty, or engages in activities without legal authority they can be sued
No, bobbo, there is an important distinction in the law between what is required by law, and whether those requirements can be enforced in a court of law. The state may have a legal obligation, and yet no one has a legal right to have that obligation enforced. The doctrine of sovereign immunity is merely one example of this, and this is precisely what that doctrine says: that in certain cases, the sovereign may not be sued, even if a court could find a legal obligation.
Things should not be left open ended.
I agree, and this is one reason why I don't support reparations lawsuits. Legal principles such as the statute of limitations are quite important in order to ensure that matters can be litigated fairly and that the affairs of people and institutions can have stability.
However, I think the distinction between children and grandchildren may be rather arbitrary. If you want to propose that this is precisely where the line should be drawn, that's fine.
There is also a principle in the law which calls for extending the normal time frames for legal claims in the event that people are unable to seek legal redress in a timely manner (for instance, because they were unaware of the underlying facts, or because they were improperly prevented from pursuing their legal rights, as was certainly the case with freed slaves and their descendants).
Each year/generation after that, the immediacy of that trauma lessens.
This might be true if the issue at hand was about a trauma passed down through the generations. In the case of reparations for slavery and discrimination, the argument is usually about the impact on the current generation of these historic events, not about a trauma transmitted intergenerationally.
In this case, too, the issue isn't that victims are too traumatized to pursue their legal rights immediately. The former slaves and their descendants were kept from pursuing their legal claims by a racially discriminatory society.
I understand and agree that part of some reparations claims TODAY include a notion of the continuing harm of discrimination that is part and parcel of the slavery that existed before making many blacks CURRENT VICTIMS of that harm. Its why there is currently already the availability of lawsuits for discrimination based on race.
You say that this is "a poor remedy," and you're certainly right. This is merely a remedy for new discrimination today, not for the consequences today of past discrimination.
Just to be clear, the claim with reparations isn't that past events have helped to cause current discrimination. Present discrimination is against the law. The claim is that black suffer harm today because of past discrimination and other wrongdoing.