Written by Walter Olson
Just a few years ago, at roughly the turn of the millennium, slavery reparations seemed the coming thing. A June 2001 New York Times article reported that the movement to obtain compensation for slaves' descendants had "taken on substantial force" and was "gaining steam" both in the nation's universities, abuzz with rallies and study committees, and in the black community generally.
Then: nothing. Today, reparations seem to have completely disappeared from the national agenda. Few mention them any more. What happened?
The idea of reparations for blacks had briefly come up at the time of the Civil War and Emancipation, but then was largely forgotten until the heady year of 1969, when it burst forth again. Black militants, led by James Forman, began disrupting Sunday services in leading churches and demanding a down payment of $500 million on future reparations. Much earnest discussion ensued: the New York Review of Books, the era's bulletin board of fashionable radicalism, reprinted Forman's manifesto. A few reactions were tarter, like that of black civil rights activist Bayard Rustin, writing in Harper's: "If my grandfather picked cotton for 50 years, then he may deserve some money, but he's dead and nobody owes me anything."
The brouhaha soon died down, but it inspired liberal Yale law professor Boris Bittker to write The Case for Black Reparations, a book that appeared in 1973 and remains well worth a look 35 years later. Bittker examined closely, but in the end dismissed as unpromising, the idea of filing lawsuits over blacks' past maltreatment. For starters, he noted, the jurisprudential tradition disapproved of attaching liability to actions that were lawful or required by law when they happened. Also, many claims would fail for lack of a reasonably direct and "particularized" link between the misconduct of a specific defendant and the injury suffered by a specific plaintiff. Statutes of limitation would dispose of most of the rest. Suing state governments that had maintained Jim Crow ran into further obstacles, arising from the age-old doctrine known as sovereign immunity, which (generally) provides that one can sue governments for cash damages only with their consent.
For Bittker, it made sense to pursue reparations not through litigation but through legislation funded from government revenues. And in the years that followed, the U.S. in a way did just that, with a vast increase in spending on social welfare, education, housing, and urban programs, which aimed primarily at relieving the problem of black poverty, though they didn't make race a prerequisite for eligibility. On top of that spending, the nation enacted entitlement programs that were explicitly compensatory and race-based, including race-conscious student assignment in public schools, systematic racial preferences in employment and higher education, and much more.
By the time reparations enthusiasm hit the law schools in a major way during the late eighties, the old-school liberalism of professors like Bittker had given way to the newer deconstructionist vogue of critical legal studies and its even more radical successor, critical race theory, which infused the study of law with a heavy dose of identity politics and which viewed all the legislated help for blacks as woefully insufficient. Over the next decade, critical race theory made reparations one of its signature causes; indeed, a large share of the reparations movement's intellectual leadership has come from the law schools. The new advocates weren't opposed to legislated compensation programs. But they reserved most of their passion for the very alternative that Bittker had ruled out as too chancy, acrimonious, and difficult: lawsuits against private parties.
Perhaps the new academic reparationists' most distinctive contribution was to try to establish links between slavery and private actors not widely regarded as tainted by it-the more respectable, forward-minded, and non-Southern these institutions, the better. Thus it came to light that some New England insurance companies in antebellum days had collected premiums from slaveholders for policies written on slaves' lives. Northern newspapers had published classified ads announcing slave auctions and seeking the recapture of runaways. And elite universities like Harvard and Brown had received major financial benefactions from slaveholders and traders. As revelations of this kind emerged-some institutions, self-critically, did the digging and reporting themselves-a number of businesses and universities issued apologies or pledged increased donations to black causes.
Large corporations' slavery links proved especially plentiful because so many of today's banks, railroads, and industrial concerns had built themselves up from hundreds of smaller predecessors around the country; to score a reparations "hit," you simply had to tag one of those earlier, absorbed, firms. The Wachovia banking empire, for instance, got started in 1879, 14 years after the ratification of the Thirteenth Amendment, and might at first glance seem innocent. But over the years it agglomerated into itself, through merger and acquisition, the remains of about 400 earlier institutions, among them-bingo!-the slavery-compromised Bank of Charleston and Georgia Railroad and Banking Company.
If that tactic didn't work, how about this one: might not a Northern business have profited by its precursors' handling or use of slave-produced products, such as the rice, sugar, tobacco, and turpentine that traveled around the world? Or perhaps it numbered among the "shipbuilders, sailors, ropemakers, caulkers, and countless other northern businesses that serviced and benefited from the cotton trade," as Robinson put it.
Almost every business would be "guilty" in one way or another, one researcher explained, because "how you connect a company to slavery is more a political [notion] than a historical one."
This quest for generalized guilt made reparations come alive for university students and other potential allies of the movement, and it made excellent copy for the press, providing ready-made controversy in which some stuffy institution would squirm at the exposure of its ignoble past. It also helped undermine what some saw as 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." It remained true, as in Bittker's day, that drastic stretching of old legal concepts would be necessary before private businesses, landowners, or families would have to pay anything. But by the nineties, proposals to open up unheard-of forms of liability via such conceptual stretching had become standard fare, applauded and encouraged in the law schools-and the courts were by no means immune to shifts in elite and public opinion. Plus, after a long delay, reparations claims arising from World War II atrocities had started coming to court. Many felt that these suits would serve as a precedent for the revival of claims older still.
In late 2000, the seemingly most impressive advance yet for reparations appeared: the unveiling of a new project called the Reparations Assessment Group, which would ready lawsuits against defendants both public and private. Its roster of participating lawyers included some of the country's most feared plaintiffs' attorneys, such as Mississippi tobacco veteran Richard "Dickie" Scruggs and O. J. Simpson defender Johnnie Cochran, Jr. The committee would partake of the prestige of Harvard Law School as well, boasting as its director Harvard law professor Charles Ogletree, who ran the school's clinical programs. "Litigation will show what slavery meant, how it was profitable and how the issue of white privilege is still with us," Ogletree told the New York Times. Another lawyer involved, Alexander J. Pires, Jr., was even more enthusiastic. "This will be the most important case in the history of our country," said Pires, who had earlier won a $1 billion settlement for black farmers allegedly shortchanged by U.S. Department of Agriculture programs.
No one knew exactly how big the suits would be, but the dollar sums mentioned started in the trillions and quickly climbed. Harper's published an estimate of $97 trillion, which would require extracting, on average, approximately $300,000 from every American of non-slave descent. Here and there a dissenting voice spoke out, saying that it was unfair to saddle present-day defendants with the guilt of their ancestors. But the debate seemed to be leaving such views behind. "Just because slavery ended over a hundred years ago doesn't excuse them," said reparations lawyer Deadria Farmer-Paellmann.
Meanwhile, reparations advocates began to get legislative help, mostly-but not exclusively-in lawmaking bodies where black votes were pivotal. A near-unanimous Chicago city council passed an ordinance requiring companies wishing to do business with city hall to disclose past ties to slavery, the better to fuel hoped-for legal action, and similar measures passed in Detroit, Los Angeles, Milwaukee, and Philadelphia. California lawmakers directed the University of California to conduct research linking the state's modern economy to the efforts of slaves, again seeking to ease the way for litigation. Advocates began to talk of legislative action to reopen lapsed statutes of limitation.
So confident were reparationists of success that they began to map out how the court-ordered reparations would be spent. Robinson believed that in addition to facilitating such benefits as free college tuition for blacks, a trust fund should "generously" support "broad civil rights advocacy" as well as "the political work of black organizations." A George Washington University law professor proposed awarding reparations plaintiffs part ownership, in the form of stock shares, of the corporations they sued.
The attacks of September 11, 2001, broke this momentum with an abrupt jolt. It wasn't just that for quite a few months thereafter, Americans of all races preferred to discuss issues unrelated to reparations; it was also that some of the persistent themes that ran through those days, such as national unity, individual heroism, mutual dependence, and the implications of mortality were at cross-purposes with the reparations narrative. According to LexisNexis, U.S. newspapers and wire services ran nearly 2,600 stories including the words "slavery" and "reparations" in the year leading up to 9/11. Since then, the yearly average has been under 1,000.
The issue did resurface briefly in the press in the spring of 2002, with the filing of a reparations suit that demanded $1.4 trillion from eight major corporations, including Aetna, FleetBoston Financial, and the railroad concern CSX. But the suit wasn't a product of the big-name Reparations Assessment Group. Instead, Farmer-Paellmann had filed it, reportedly having grown impatient with the failure of the high-profile project to act.
It probably hadn't acted because the hoped-for mobilization of public opinion had hit a wall. Editorialists and liberal churchmen aside, a vanishingly small share of whites supported the idea-5 percent in one poll, 4 percent in another-while those opposed routinely topped 90 percent. The administrator of a survey in Alabama called reparations the most racially polarizing issue the pollsters had ever asked about, and added: "The mere mention of reparations and an official U.S. government apology for slavery-another issue addressed in the poll-caused many white respondents to get so angry that they had trouble completing the interview." It became clear, too, that a substantial sector of black opinion quietly opposed reparations-and sometimes not so quietly, as when well-known author Juan Williams slammed it as "a dangerous, evil idea [that could] take American race relations on a crash course."
Given the reparations movement's collapsing fortunes, it wasn't surprising that in 2004, Democratic presidential nominee John Kerry-overwhelmingly favored by African-American voters in his race against George W. Bush-flatly rejected the idea as divisive, and did so in a discussion at historically black Howard University. Not long before, such a statement might have provoked days of controversy in the press. Instead, it drew only incidental notice. What's more, Kerry's words drew "marked applause" from his largely black audience. Since then, the only White House hopefuls with a kind word for reparations have been oddballs Dennis Kucinich and Ralph Nader.
Once the push for reparations moved past historical introspection to lawyering-up, the business community's stance hardened as well. After the initial semi-voluntary flurry of acknowledgments of antebellum links-which had earned for several big businesses the honor of being defendants in the Farmer-Paellmann suit-other firms became reluctant to open a similar window onto their pasts or, indeed, speak to the issue at all other than through counsel.
And as a legal matter, the reparations claims proved desperately weak. Consider the seemingly precedential claims arising from atrocities in wartime Europe. The press had generally assumed the legal merit of these suits, which did have several crucial advantages over slavery claims, most obviously that they arose from mistreatment of persons still or recently alive. Yet they mostly went nowhere before actual judges. Thus a federal judge threw out four high-profile class actions over slave labor in Nazi Germany, ruling that a postwar treaty had already addressed and resolved such claims and that to reopen the question by judicial fiat "would be to express the ultimate lack of respect" for the work of Truman-era U.S. policymakers. (Some of the European suits won sizable settlements without going to trial; that, however, had much to do with their targets' fear of political sanctions and continued bad publicity, as distinct from actual court rulings.)
In 2005, a federal judge briskly tossed out the Farmer-Paellmann and related reparations suits, in a decision largely upheld by the Seventh Circuit the next year. The suits failed on exactly the grounds that one would predict: standing (those injured were the plaintiffs' ancestors, not themselves); the "political-question" doctrine (decisions on how best to clean up after the Civil War were best entrusted to the other branches, not the judiciary); and, inevitably, the statute of limitations.
For most newspapers, the suit's dismissal was a back-pages story; everyone had moved on. To the extent the reparations movement had used its brief time on stage to encourage national introspection, Americans had reached a different conclusion from the one that the activists had hoped for-a rough consensus, in fact, that whatever the right approach to the nation's perennial problem of race relations might be, ventures into anger-mongering and random expropriation weren't it.
Walter Olson is a senior fellow at the Manhattan Institute and the author of several books, most recently The Rule of Lawyers. He is at work on a book about the influence of law schools.