Would Reparations for Slavery be Just?
by Edward J. Erler
June/July 2002
Originally published on May 8, 2002 as a Claremont Institute Precept
On Wednesday, the California Department of Insurance, at the instruction of Governor Gray Davis, released a list of
companies that once insured slaves as property. Although California never permitted slavery, advocates of "reparations" are trying to affix financial responsibility wherever they can. For instance, a class action lawsuit seeking reparations for the descendents of American slaves has been filed recently in a Brooklyn federal court. It seeks millions of dollars in
compensation from several American companies. One, Fleet Boston Financial, allegedly profited from loans made to a
Providence, Rhode Island slave trader. The actual loans were made by Providence Bank, which no longer exists, but
is one of the hundreds of predecessor banks that have merged to form Fleet-Boston. Several more law suits will
be filed in coming months. Given the tendentious connection with slavery in the named companies, almost
every American corporation is a target of opportunity for such law suits.
Not many legal experts believe that these actions will survive judicial scrutiny--the plaintiff class cannot be
determined with any certainty and the businesses targeted in the suits were engaged in activities that were entirely
legal at the time. Besides, the statute of limitations has long run out.
Advocates of reparations are not deterred by these formidable legal hurdles. Edward Fagan, the lawyer who
filed the law suit, argues that "slavery was a crime against humanity and there is no statute of limitations on
a crime against humanity." As for the necessity of identifying the members of the injured class, advocates
maintain that all blacks in America have been injured by the lingering effects of slavery, and it is therefore
unnecessary to prove individual injury. However, reparations for all African-Americans runs the risk of
compensating the descendants of black slave owners. Black slave owners, while not numerous, are nevertheless a
prominent and poignant part slavery's legacy. And, African Americans who emigrated to the United States after slavery
was abolished were, in many instances, the descendants of African slave traders. Would it make sense--indeed would it
be just--to seek reparations for African American whose ancestors were complicit in the crime of slavery?
But for most reparations advocates, the law suits are merely pretext. Jesse Jackson, who has made a career of
shaking down corporations, says he does not expect reparations to be paid to individuals but to non-profit
groups. Corporations are expected to pay handsome sums to minority foundations to atone for their past misdeeds. The
possibilities here are almost limitless.
Jackson, of course, would play the better part of justice by demanding reparations from the descendants of African
slave traders who were the first link in the chain that became American slavery. But for Jackson justice resides
exclusively in the deepest pockets. Corporations would be well advised to resist Jackson's shakedown tactics in the
hopes of avoiding law suits that can't possibly succeed.
In the 1830s, the Frenchman Alexis de Tocqueville, a perceptive observer of American politics, predicted a civil
war. He believed that slaves would rise against their masters. There was a civil war, of course, but it was not
slaves against masters, but a war among the master class over the morality of slavery. (The morally obtuse on both
the left and right deny this, but I prefer to take the word of Abraham Lincoln). The Civil War, Lincoln believed, was
fought to vindicate the central principle of the Founding that "all men are created equal" and that the "just powers"
of government are based on the consent of the governed. The northern victory preserved the principles of the
Declaration and the Reconstruction Amendments extended citizenship and civil and political rights to the newly
freed slaves. The equal protection clause of the fourteenth amendment secures the equal protection of equal
rights of all citizens, regardless of race or ethnicity. This idea received its ultimate expression in the Civil
Rights Act of 1964. And despite what reparations advocates allege, there has been steady progress in the legal and
social status of African Americans.
Perhaps the progress has been too slow, but there is no reason, at this late date, to abandon the principles that
made that progress possible. Reparations, like affirmative action quotas and racial set asides only exacerbate racial
issues and detract from a genuine understanding of equal opportunity. The rule of law--and the principle of
equality--demands a color-blind society where equal opportunity is the principle of distributive justice. The
greatest "reparation" for African Americans is to continue--and redouble--our commitment to this principle of justice.
Edward J. Erler is a senior fellow of the Claremont Institute and professor of political science at Cal. State San Bernardino.
Copyright (c) 2002 The Claremont Institute. All rights reserved.
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