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Repairing the Past: Confronting the Legacies of Slavery, Genocide, & Caste

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I. Remarks on the Morality of Reparations for SlaveryProceedings of the Seventh Annual Gilder Lehrman Center International Conference at Yale University Repairing the Past: Confronting the Legacies of Slavery, Genocide, & Caste October 27-29, 2005 Yale University New Haven, Connecticut Remarks on the Morality and Politics of Reparations for Slavery Thomas McCarthy, Northwestern University Available online at www.yale.edu/glc/justice/mccarthy.pdf Reparations for slavery have recently become the focal issue of an increasingly broad-based movement for racial justice in this country.1 The activities of the National Coalition of Blacks for Reparations in America (N’COBRA) have resulted in the adoption of reparations resolutions by city councils across the country. A number of other black organizations, ranging from the Nation of Islam to the NAACP and the Southern Christian Leadership Conference have joined the struggle. And the Reparations Coordinating Committee (RCC), centered at Harvard Law School and comprising an all-star cast of lawyers, scholars, and activists is in the process of filing a variety of lawsuits in a number of courts.2 There are many reasons for this surge in interest, among them: the recent success of reparations lawsuits against Swiss banks, European insurance companies, and German corporations for harms inflicted in the Nazi past;3 the central role of reparations in recent transitions to democracy in South Africa, Latin America, and elsewhere;4 the precedent set by the monetary awards and official apology extended by the US Government in 1988 to Japanese-Americans illegally interned during World War II; and, 1importantly, the evident failure of the civil-rights legislation of the 1960s to repair the deep-seated inequalities left behind by 350 years of legally institutionalized discrimination, together with the conservative realignment of national politics that has stalled progress toward racial justice in the USA since the 1970s. The form that such reparations might take and the most effective path to them are variously conceived. The form and path I shall consider are those proposed by many of the most influential advocates, particularly the Reparations Coordinating Committee. Its main elements include: suing corporations and other private institutions – “successors in interest” – whose predecessors benefited from slavery and Jim Crow, as well as federal and state government agencies that sanctioned and implemented racially discriminatory practices; requiring these corporate agents – in the broad sense of bodies recognized in law as incorporated – to pay into collective funds intended to redress the legacy of centuries of legally institutionalized injustice; seeking, in addition to monetary compensation in this collective form, non-monetary forms of redress as well, both “symbolic” (e.g. public acknowledgement, apology, and commemoration) and “material” (e.g. policies, programs, and institutional reforms designed to correct imbalances in education, job training, housing, healthcare, and the like); and aiming, in the end, at federal legislation to repair the situation. This last point means that, as in many other cases of reparations – e.g. reparations for Nazi slave labor and for Japanese-American internment –judicial recourse is part of a larger strategy to involve the national government in redressing wrongs in which it was deeply implicated. It also means that for judicial recourse to succeed in its larger aims – or, many argue, even in its narrower, legal aims – coordination with a popular, political, reparations movement will be necessary. 2It should be obvious that in assessing an undertaking of this sort, a great variety of considerations are relevant: moral considerations concerning the requirements of corrective justice and the righting of past wrongs; legal considerations concerning the possible bases in constitutional, statutory, or international law for pursuing compensation; political-cultural considerations concerning the importance for national reconciliation of publicly acknowledging and atoning for past injustices; and practical-political considerations concerning the aims, strategies, and likely consequences of pursuing reparations, among others. In my remarks today, I want to focus on a few key aspects of, first, the moral-political arguments for reparations, and second, the practical-political debates surrounding them.5 I. Remarks on the Morality of Reparations for Slavery The principal moral intuition behind the idea of reparations is easy to grasp. If one agent has wrongfully harmed another, then the perpetrator has a prima facie moral obligation to repair, so far as possible, the damage to the victim. That is to say, if there are persisting ill effects of a wrongful action and the perpetrator is in a position to rectify them in some measure, her moral obligation does not end with feelings of remorse, an admission of guilt, or an apology. She ought, so far as she can and so far as other moral obligations allow, to repair the situation in which she has placed the victim: otherwise, the victim’s continued suffering would amount to a continuing harm. This is, of course, the intuition underlying the discourse of corrective or rectificatory justice from Aristotle to the present.6 And it is not difficult to sketch, at least in broad outline, how a moral-political case for reparations for slavery might be constructed from this intuition within a liberal framework. Political justice is here rooted in impartiality or fairness, which requires equal respect for each person, equal rights and liberties for all, equal 3treatment under the law, and equal consideration of the interests of all. There is no question that these were denied, under law, to slaves and their descendants at least into the 1960s. And there is a convincing case to be made for the continuing effects of these past injustices in the present inequalities of income, wealth, housing, health care, social standing, education, employment, and other opportunities, which characterize the situation of African-Americans in the USA. Correcting this legacy of past injustice, making these wrongs right, so far as practically possible and morally permissible, seems clearly to be a moral-political requirement of justice as fairness.7 For the USA is a continuing constitutional undertaking, an enduring “corporate agent”8: having


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