The Senate Slavery Apology and Reparations

Ashby Jones:

The Senate unanimously passed a resolution on Thursday apologizing for slavery, making way for a joint congressional resolution. Click here for the WaPo story.
“You wonder why we didn’t do it 100 years ago,” Sen. Tom Harkin (D-Iowa), lead sponsor of the resolution, said after the vote. “It is important to have a collective response to a collective injustice.”

Memo to Senator Harkin: We had a collective response. It was called the Army of the Potomac. Not to mention the Emancipation Proclamation, the 13th Amendment, the 1964 Civil Rights Act, and decades of affirmative action.

Jones continues:

Randall Robinson, author of “The Debt: What America Owes to Blacks,” said he sees the Senate’s apology as a “confession” that should lead to a next step of reparations. “Much is owed, and it is very quantifiable,” he said. “It is owed as one would owe for any labor that one has not paid for, and until steps are taken in that direction we haven’t accomplished anything.”

Back in 2004, I wrote a column for TCS Daily that addressed the reparations issue:

Descendants of African-American slaves are suing Lloyd's of London seeking reparations on grounds that Lloyd's insured ships used in the slave trade in the Eighteenth Century. Although a federal judge recently dismissed a class action seeking reparations for slavery from a number of US corporations, lawyer Edward Fagan who successfully pursued Swiss banks on behalf of Holocaust victims seems confident that he's got a strong argument:

"Why is it too far fetched to say blacks should be entitled to compensation for damages and genocide committed against them, when every other group in the world that has been victimized in this way has been?"

A fair question, but there is a big difference between reparations from corporations for the benefit of victims of the Holocaust or Japanese internment, to cite two commonly used examples, and the descendants of slavery.

Legal liability can be justified on a number of grounds, such as deterrence, compensation, and retributive justice. Requiring a corporation to pay reparations to victims of centuries or even decades old wrongs advances neither deterrence nor retributive justice.

Who do we punish when we force the corporation to pay reparations? Since the payment comes out of the corporation's treasury, it reduces the value of the residual claim on the corporation's assets and earnings. In other words, the shareholders pay, not the directors and officers who actually committed the alleged wrongdoing (who in most of these cases are long dead anyway).

As far as deterrence goes, the problem is that shareholders don't control corporations. Corporation law assigns the responsibility for making corporate policy to the board of directors and the firm's managers. Holding the shareholders liable for something that happened decades ago is unlikely to have much deterrent effect on the corporation's current directors and managers. Human nature being what it is, current managers likely believe that they won't commit the errors of their predecessors. On top of which, the prospect that shareholders will be held liable is far less likely to deter management misconduct than would the prospect that the managers who made the decisions would be held personally liable.

Retributive justice likewise is poorly-served by corporate-level liability. Retributive justice is legitimate only where the actor to be punished has committed acts to which moral blameworthiness can be assigned. Because the corporation's legal personhood is a mere legal fiction, however, a corporation is not a moral actor.

Edward, First Baron Thurlow, put it best: "Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and nobody to be kicked?" The corporation is simply a nexus of contracts between factors of production. As such, there is no moral basis for applying retributive justice to a corporation -- there is nothing there to be punished.

Even if you assume the corporation is still benefiting from alleged wrongdoing that happened decades or even centuries ago, the modern shareholders are mere holders in due course. It is therefore difficult to see a moral basis punishing them. They have done nothing for which they are blameworthy.

In sum, both deterrence and retributive justice require that punishment be directed solely at those who actually commit wrongdoing. In this context, it would be the directors, officers, or controlling shareholders who actually enslaved people. Since they're long dead, there is nobody left who properly can be punished.

This leaves compensation. When compensation is the goal of a particular punishment, it is more appropriate to treat the corporation as though it were a real entity that can be punished through fines or tort liability. After all, the corporation likely will have far deeper pockets and thus far greater ability to compensate victims than either managers or shareholders.

As a matter of compensatory justice, however, reparations for slavery differ significantly from the Holocaust or Japanese internment. In the latter cases, there were living victims whose injuries could be redressed. In the case of African-American slavery, there are no living victims or even immediate descendants.

Courts have routinely held that descendants of slaves have suffered no legally cognizable injury for which they have standing to sue. In his decision in the African-American Slave Descendants Litigation case, for example, federal district court judge Charles Norgle rejected the plaintiffs' argument that they suffered continuing harms, in form of racial profiling, racial slurs, and shorter life expectancy, as result of the enslavement of their ancestors.

Slavery was a great injustice. Yet, there is no moral case for reparations. None of the principal legitimate purposes of punishment -- deterrence, compensation, or retributive justice -- would be served by requiring corporations to pay such reparations.

Comments

[Cornellian]

The idea of reparations has zero legal merit and not much more moral merit. There is a world of difference between compensating actual living victims of injustice, like Japanese Americans imprisoned during World War 2 and compensating people who can find an ancestor from 200 years ago who was a slave, at the expense of people who have never owned slaves and in many (if not the majority) of cases, don't even have ancestors who owned slaves.

[Toe Cracker]

Over six hundred thousand dead ending slavery was a huge payment of some of that debt. Granted, the motivations of many of those involved was not in righting an injustice, but the civil war was fought over the issue of slavery.

But ultimately it comes down to this, the children of the children of the children of slaves are too remotely removed from the crime to punish people so remotely removed from the unjust enrichment of slavery.

[D> Rosenthal]

Of course slavery was an abomination and is the most shameful institution in American history. I offer my apology to all decendents of former slaves, even though my family didn,t begin to arrive in this country until the turn of the century. But to whom shall we pay reparations? Not all American blacks are actually "African-Americans" in the sense that their forefathers were brought here in chains. It has been many generations since the abolishment of slavery and very few black citizens can actually trace their root back to a specific ancestor who was brutilized by this abhorant practice. In addition, many of today's black citizens or their families immigrated here of their own free will or have somewhat convoluted heritage like President Obama.Is he elegible for reparations? Who is? I fear that this is merely another example of politicians scrounging for votes by using the "race card". It is much more important for the government to work to prevent any continuing racial discrimination and help to continue the foreward strides made during the last half century.

[Mark H.]

I think some might have missed the the larger moral issue(s) being raised by the reparations lobby. For them, someone owes a 'wronged race'. And 'the race' that owes the wronged race is 'the white race' as emodied in a majority of the American people.

The concept of family, ethnic, and racial genetic historical guilt, passed on from generation to generation, is not a new concept - its the source of many of the world's wars and conflicts (e.g. Nazi death camps, the Balkins or Northern Ireland). The moral concept is that of the sins of the ancestors that must be paid by those who share their attributes in genetics or culture group, even if it is many generations later.

The irony is that the self-identified progressive folk would adopt an idea so patently immoral - the idea of inherited debt and punishment visited upon the progeny of the guilty party is a moral standard from the middle-ages...the last time that such pre-modern notions held sway as a serious value system.

Sad really.

[KenB]

See this site for the combined casualties of the 10 costliest battles of the Civil War:
http://www.civilwarhome.com/Battles.htm

When considering a reparations debt, what credit do you get for the dead and those with broken lives that these numbers represent?

Slavery was heinous. The Civil War was heinous. We would be well advised not to keep picking at the wound.