Sweep around your own front door: examining the argument for legislative African American reparations.

• Author: Chisolm, Tunneen E.

As a world leader emphasizing the need for international relations grounded upon democracy and human rights, the United States has yet to face the dilemma of how to deal with its own past and its most egregious historical injustices, an obvious example being the legacy of slavery.(1)

INTRODUCTION

The current state of race relations in America is charged with vigorous debates over the utility of a formal apology for slavery(2) and the appropriate fate of affirmative action,(3) as well as vivid reminders of past civil--and government-sanctioned transgressions against African Americans.(4) The enslavement of Africans in America from 1619 to 1865 is one of the most callous, vexatious, near-genocidal violations of human rights in world history;(5) that history is buried in the conscience of this Nation.(6) The legacy of slavery in America is marked by the continued marginalization of African Americans within the firmly rooted, self-perpetuating economic caste system that is this Nation's foundation.(7)

President Clinton has a vision of America becoming "the world's first truly multiracial, multiethnic, multireligious democracy," so that we as a Nation will be "better positioned ... to lead the world toward peace and freedom and prosperity" in the twenty-first century.(8) To that end, the President has commissioned the "President's Advisory Board on Race" to examine how we can end the racial divide that still pervades the Nation more than three decades after the end of overt, systemic discrimination and Jim Crow laws.(9) The order provides that the board

shall advise the President on matters involving race and racial reconciliation, including ways in which the President can: (1) Promote a constructive national dialogue to confront and work through challenging issues that surround race; (2) Increase the Nation's understanding of our recent history of race relations and the course our Nation is charting on issues of race relations and racial diversity; (3) Bridge racial divides by encouraging leaders in communities throughout the Nation to develop and implement innovative approaches to calming racial tensions; [and] (4) Identify, develop, and implement solutions to problems in areas in which race has a substantial impact, such as education, economic opportunity, housing, health care, and the administration of justice,(10) That agenda echoes the famous I Have A Dream speech in which Martin Luther King, Jr. painted his vision for a harmonious multiracial, multiethnic, and multireligious American democracy,(11) That was three and one-half decades ago, and still, America is far from reaching a true equal-access democracy in which every individual enjoys full citizenship(12) and equal opportunity.(13) "If we can finally achieve [that] multicultural balance, America would unquestionably be perceived as the moral leader of a world characterized by interanational ethnic dissension and oppression."(14)

In recent years, however, many have interpreted the very protections that were enacted to alleviate systemic racial discrimination against disadvantaged minority groups(15)--namely, the Fourteenth Amendment and Title VII--in a way that threatens to eradicate progress.(16) California's Proposition 209,(17) which succeeded in amending the California Constitution, is spawning "copycat" legislation that ultimately may result in the demise of government affirmative action.(18) Some affirmative-action opponents justify is of race, color, national origin, or sex with their position by suggesting that the elimination of all race-preferential policies in favor of a strict meritocracy reflects King's ideal.(19) Against the backdrop of race-neutral policy reasoning, President Clinton's vision conjures up images of the utopian America that we have not been able to achieve--images of an America where people are judged by the "content of their character"(20) and where we truly can all just get along.(21) A discussion of whether colorblindness is a necessary step to achieve equality, or whether colorblindness is even desirable as an end objective, is beyond the scope of this Comment. However, "assum[ing] that our goal is a color-blind society, whatever that really means,"(22) the question is whether "requiring that people act in a color-blind manner [will] hasten the day when people actually think in a color-blind way in their socially and economically significant dealings with others."(23) The evidence suggests not. Despite some progress, "[e]conomic and social disadvantages remain powerfully linked with color, and this linkage exacts an enormous toll on the perception and reality of opportunity in America. Racial discrimination and race-based exclusion remain significant forces."(24)

Therefore, I submit that at least one prerequisite to resolving the dilemma of race relations in America is reparations for African Americans. The issue addressed in this Comment is whether legislative reparations are a justifiable remedy for African Americans, particularly in light of the imminent dismantling of affirmative action with Proposition 209 and the decisions that have followed.(25) Part I gives a brief overview of the quest for African American reparations since the end of slavery. Part II focuses on the continuing effects of slavery and systemic discrimination, and on the argument that continuing black and white inequities are rooted in such institutions. This Part discusses wealth as a measure of inequity to set the stage for determining damages and the appropriate compensation. Part III discusses why reparations are a prerequisite to an equitable society. In addition, Part III reflects on the "moral economy" incentive for granting reparations to African Americans. Part IV presents the rationale for a legislative remedy in the context of distributive justice. This section reviews the Civil Liberties Act as a precedent for race-based reparations, and discusses the arguments reconciling African American reparations and the Equal Protection Clause. Finally, Part V offers suggestions in answer to the who, what, and how of implementing an African American reparations scheme.

1. HISTORY OF THE QUEST

   Five major waves of political activism have promoted the idea of reparations for African Americans since the emancipation of slaves: (1) the Civil War Reconstruction Era,(26) (2) the turn of the twentieth century,(27) (3) the Garvey movement,(28) (4) the Civil Rights movement,(29) and (5) the resurgence of efforts following the Civil Liberties Act of 1988,(30) which, most recently, has been fueled by the trend toward an official dismantling of affirmative-action policies. The redress sought has included claims for back pay of slave wages; land acquisition and educational benefits;(31) monetary compensation for abuse, indignities suffered, forced indoctrination into a foreign culture, and/or destruction of the family unit;(32) relocation to Africa or designated lands;(33) relief from income tax obligations;(34) and forty acres and a mule, or the equivalent value.(35) For purposes of this Comment, the focus is narrowed to only that compensation necessary to enable slave descendants to function in an America with race-neutral policies. Consequently, exodus and other separatist options are not considered.

   Early reparations measures were legislative remedies which Congress promoted not only to aid the transition of freed Africans from slavery to freedom, but also to gain leverage during the Civil War through confiscation of land from rebels.(36) According to Foner, the "Confiscation Act, of August 1861, was directed only against property used in aid of the rebellion."(37) The 1862 Confiscation Act authorized the taking of all rebel property, amassing thousands of acres of land; however, "President Lincoln, who strongly opposed widespread confiscation, forced Congress to ... limit[] the seizure of land to the lifetime of the owner."(38) The Lincoln administration did little to enforce the 1862 Act, which was eventually repealed to make way for a measure authorizing permanent seizure.(39) Nevertheless, freedmen were permitted to settle on thousands of acres of abandoned land in South Carolina and Georgia pursuant to General Sherman's field order.(40)

   The Freedmen's Bureau Act of 1865(41) created the Bureau of Freedmen's Affairs to provide special assistance to refugees and persons of African descent. The 1865 Act, effective for one year, authorized the lease and sale of confiscated land to refugees and Africans and was broad enough to enable the Bureau to supply basic necessities and medical assistance.(42) The 1866 Freedmen's Bureau bill,(43) in turn, proposed to extend the 1865 Act indefinitely, to authorize Congress's appropriation of funds to purchase school buildings for refugees and freedmen, and to empower the President to "reserve up to three million acres of 'good' public land," for lease and sale "to freedmen and refugees in parcels not exceeding forty acres."(44) The 1866 bill passed in both the House and the Senate, but President Johnson unexpectedly vetoed the bill, and it failed to garner enough votes to override the veto.(45) The bill was modified to exclude the land reservation--no forty acres--and to extend the Bureau Act for only two years; however, the new bill "provided special aid and protection" for African Americans that was "substantially more explicit than the vetoed bill or the 1865 Freedmen's Bureau Act."(46)

   First, the modified 1866 Act authorized the Bureau to assist freed African Americans as necessary to ensure that their freedom was "'available to them and beneficial to the Republic,"(47) but limited the authorized assistance to white refugees to "that assistance necessary to make them self-supporting."(48) Second, the modified bill limited educational programs to freed African Americans, whereas the vetoed bill had authorized "construction of schools `for refugees and freedmen dependent on the Government for...