What happened to the slavery reparations movement?

by Walter Olson on October 31, 2008

I’ve got an op-ed in today’s L.A. Times (Walter Olson, “Slavery reparations: what happened?”, Oct. 31) based on a longer article forthcoming in City Journal. (The short answer to what happened: 9/11, public opinion, and the courts.)

The City Journal article is in turn a much condensed version of a draft chapter in my book-in-progress about the influence of the law schools. As I show in that chapter, there were few places where reparations enthusiasm burned hotter than in legal academia, with conferences and law review articles galore devoted to advancing the cause. The most prominent law school advocate of the reparations cause back then, Harvard’s Charles Ogletree, is back in the news these days because of his role as mentor (and, reportedly, chief advisor on racial issues) to Democratic candidate Barack Obama; he’s being mentioned as a possible civil rights chief in the next administration. Not surprisingly, Ogletree has had much less to say about the reparations cause this year than he did eight or nine years ago; I have a feeling that in an Obama administration he’d be under strict orders not to get near the issue, but of course I could be wrong.

We’ve covered reparations litigation extensively at Overlawyered.

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OpenMarket.org » Archive » Top Obama Adviser Blames America for 9/11, Says America Is Racist
11.01.08 at 3:28 pm
“Reparations, R.I.P.”
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{ 24 comments }

1 Dick 10.31.08 at 11:29 am

Thank you for the op-ed piece in today’s LA Times!!

Two facts missing in the debate for reparations …
1. It was the USA and white Americans that freed the slaves, fighting and dying for their freedom in the Civil War.
2. Africans were the ones capturing and selling the major of those sold into slavery. Not only was this happening before the white man came to Africa, but continues today.
http://en.wikipedia.org/wiki/Slavery_in_modern_Africa

2 Harold 10.31.08 at 12:50 pm

Dear Mr. Olsen,

Thank you for your article today in the L.A. Times.

I was most interested in the shift from a litigation to legislation strategy, based on Professor Boris Bittker’s writings in 1973.

It begged a few questions:

How much money has been paid to African Americans through legislative actions ?

Also, how much of the recent $700 Billion – $1 Trillion financial industry bailout, and a Legislative action, could be considered reparations.

And, have these amounts been enough ?

3 nevins 10.31.08 at 1:16 pm

Just what was the conversation and the dealmaking in the background.
Jackson, Sharpton and others left over from the black power base of the 70’s have been sabotaging black advancement for a generation now in order to maintain their power base. Just what were they promised in return for completely disappearing from the scene until the election was over?

4 Walter Olson 10.31.08 at 7:39 pm

A further thought on Obama and reparations: I find people’s reactions to the juxtaposition of the two to be like Rorschach blot interpretations. Conservatives pick up on the role of Ogletree and his co-thinkers in the Obama camp; what makes us think they won’t resume pushing the issue from a position of power after next Tuesday? Liberals are more likely to pick up on the idea that Obama is what happened _instead_ of reparations, the constructive alternative to the dead-end of impossible and abrasive demands. Some days I find myself leaning more toward the conservative reading of this, other days toward the liberal.

5 James 11.01.08 at 9:55 am

I’m not an advocate of reparations, but it seems to me that these comments reflect important misconceptions about the idea that compensation for the legacy of slavery is in order.

Dick, the U.S. did end its own practice of slavery. I’m not sure, though, how that negates the case for atoning for that institution. Surely ending slavery doesn’t amount to making up for it, any more than a murderer has atoned for his crimes if he says he’s given up murdering.

U.S. soldiers did not fight and die to end slavery in the Civil War. They were fighting to preserve the Union, and the intention to end slavery after the war didn’t even come about until well into the conflict.

It’s true that Africans were the ones capturing and selling, not just the majority, but all of the slaves to European and American traders. Does this really affect our responsibility for American slavery? At best, I think it’s an argument that if Africa had become the wealthiest part of our world, instead of the West, there would be a case for compensation from Africa.

Harold, black Americans have been given very little through legislative action, relative to any question of reparations. Let’s suppose that you consider money received through the Great Society and other programs to count for this purpose, despite the fact that those programs addressed contemporary needs on a race-neutral basis, and most of the money went to white families. Even so, the U.S. government funneled vast sums of money to white families over the generations. In the 20th century, for instance, the middle class was largely built from federal programs for education, jobs, and loans for homeownership and small businesses. Blacks were excluded from almost all of this largess, which dwarfs what blacks have received in federal aid in recent decades.

Could any of the recent financial bailout be considered reparations? How so? This money has gone largely to our nation’s leading financial institutions, with some set aside for insuring bank deposits and so on. Even the proposals to aid homeowners with mortgage difficulties can hardly amount to reparations for slavery or past racial discrimination.

Personally, I find fears that Obama’s advisers will push for slavery reparations to be overblown at best. The political equation is simple: Congress will not pass reparations in any form, because the idea is wildly unpopular with the U.S. public. So there’s nothing that Obama could do, even if he were inclined to sabotage his chances for a second term by embracing such a deeply unpopular policy position.

6 OBQuiet 11.01.08 at 2:37 pm

“So there’s nothing that Obama could do, even if he were inclined to sabotage his chances for a second term by embracing such a deeply unpopular policy position.”

He could appoint judges with a view that ‘Justice’ trumps law who would allow private suits of this sort to proceed through the courts. Then companies, fearful of crippling legal costs would lobby Congress to produce a national settlement of sorts.

7 James 11.01.08 at 3:12 pm

With all due respect, there aren’t any candidates for judgeships who believe that reparations are even remotely possible as a legal obligation.

Furthermore, reparations would be legal nonsense, and there are iron-clad legal doctrines to ensure this.

What pressure would even cause Obama to want to appoint such radical judges, who would issue rulings which would so offend the people that Obama would never get reelected? Doesn’t he face far more pressure from the mainstream to appoint judges who support the issues they care about?

As for your disdain for “justice” trumping “law,” courts have always been required to serve justice. This has been true since the earliest days of the English common law.

8 Colin Coghlan 11.01.08 at 7:21 pm

My great great grandfather died from wounds sustained during the civil war. Am I entitled to part of the reparations? We can prove we are related by blood to victim of the war to end slavery. Not likely I would think. So why should anyone else believe they are ENTITLED (I don’t like that word) to reparations? I guess law clients and ambulances are getting harder to find.

9 Todd Rogers 11.01.08 at 7:52 pm

Harold.
One technical note: There was no “beg the question.” This phrase is often misused to convey “A question thus must be asked…[or] without further explanation the debate is halted.” “Beg the question” in its simplest terms refers to a logical fallacy in which a premise is also the conclusion: A=B, B=C, therefore, A=B. To this I write, “~!”

10 James 11.01.08 at 8:12 pm

Colin, why would you be entitled to a share of slavery reparations? Your family didn’t suffer from slavery!

Your great-great-grandfather died fighting in the Civil War. He was almost certainly fighting either to preserve the Union or to allow the South to secede. Ending slavery wasn’t even a war aim until after most soldiers joined up, so it couldn’t have been a principal reason why they were fighting.

As for entitlement, I don’t much care for that idea, either. (I’m certainly no fan of reparations.) But I think this is a moment to be proud of the law, not disparage lawyers as ambulance-chasers. The law has been very clear that there’s no legal case for demanding reparations, and all such lawsuits have been roundly dismissed.

11 OBQuiet 11.02.08 at 12:03 am

James,

You misunderstand. BO has made several statements that suggest that he favors judges who support the idea of “Social Justice” which is not Justice at all, hence the quotes.

And why would there need to be pressure on him. Several suits have been filed already and states have made disclosure mandatory in some cases for businesses to incriminate themselves in profiting from slavery. All he would need to do is appoint judges at ANY level who feel this is a valid claim and use of the courts time. Cases start trickling through. Businesses start pressing Congress to get them off the hook. While this happens, more appointments are made. Perhaps to SCOTUS. By the time an appeal gets there, the court will be able to claim the the “Social Consciousness” of the nation has move to accepting holding everyone responsible for the past acts of others.

He would not have to overtly press for reparations to set in motion their eventual success.

12 James 11.02.08 at 10:32 am

I’m not sure what’s wrong with judges, or anyone else, favoring social justice. That concept can, of course, be horribly abused, but so can ideas like freedom, civil liberties, etc.

What I do know is that Obama is a former constitutional law professor, and his understanding of how judges should behave seems quite sophisticated to me. For instance, in that 2001 radio interview, he says that he favors addressing inequality, but that he thinks it was a mistake for the civil rights movement to try to do so via the courts. He prefers democratic movements to a court-led, rights-based approach. This hardly seems troubling.

I find troubling, however, the assumption that Obama secretly wants to appoint judges who will favor slavery reparations. Nevertheless, I see no sign of such judicial candidates. You’re right, there were several lawsuits a few years back, and they were all resoundingly dismissed as having no legal basis. No plausible judicial candidates support any legal theory for such cases to move forward, if indeed any more are ever filed.

It’s a different issue that some local jurisdictions (cities, in this case, not states) have passed laws requiring businesses to disclose their historic ties to slavery. What harm does this do? This is about knowledge of the past, no more, and doesn’t change the legal picture one iota.

13 OBQuiet 11.02.08 at 4:29 pm

James,

Once more you seem more interested in preaching the virtue of Obama than reading what was said. Where did I say Obama WOULD do this?

You stated “So there’s nothing that Obama could do[regarding Reparations], even if he were inclined to sabotage his chances for a second term by embracing such a deeply unpopular policy position.”

I merely pointed out that there was much he COULD do. I’m sorry if you read more into it than was intended.

As for the required Business confessions. I haven’t tracked the cases but a simple search seems to find that the previous dismissals were overturned and SCOTUS refused to hear an appeal. So the suits would seem to still be active. Or at least the possibility of MORE suits and expenses are still waiting. With the added twist that the Business is required to paint a target on its own back.
http://writ.news.findlaw.com/sebok/20061219.html

This could well be out of date and I apologize if it is no longer true.

And how is forcing someone to spend money researching something “that can do no harm” not doing them harm? It is costing them money after all. And this translates to fewer bids and more cost to the City residents.

14 James 11.02.08 at 4:59 pm

“Where did I say Obama WOULD do this?”

I didn’t mean to imply that you did. I said only that “I find troubling … the assumption that Obama secretly wants to appoint judges who will favor slavery reparations.” While others have clearly been writing from that assumption, you never claimed that, although you do seem to be taking very seriously the ways in which you think a President Obama might be able to bring about reparations.

While you may not believe that Obama secretly wants to implement slavery reparations, you’re certainly spending a lot more time on that possibility than on the possibility that McCain does.

After all, unlike Obama, McCain hasn’t come out against slavery reparations. He only learned late in life that his family owned a plantation full of slaves, and that it was on the very land where he spent much of his time as a child. If anyone might be harboring feelings of guilt and be susceptible to calls for reparations, it would seem to be McCain. I doubt Obama feels too guilty about his own slave-owning ancestors.

While I’m not *too* serious about McCain, I do think it’s telling that so many people worry about the black candidate implementing reparations and not the white candidate. Why is that, exactly? Obama may be more liberal than McCain, but he’s fiercely opposed to paying reparations to the descendants of slaves. Did anyone waste time wondering whether Gore or Kerry would pay reparations to blacks? Is this about anything besides Obama’s skin color?

“a simple search seems to find that the previous dismissals were overturned and SCOTUS refused to hear an appeal.”

Actually, all reparations lawsuits to date have been dismissed, and are no longer pending. So thanks for noting that this link might be out of date.

What you’re looking at is a decision by Judge Richard Posner two years ago to reject almost all claims in a reparations lawsuit. The only claim he left standing at that time wasn’t about reparations for slavery, but a consumer fraud claim against any companies which have been lying to customers in the present about their past. In other words, he said that consumers might be able to sue a company successfully, *if* the company had lied to them, and *if* that lie amounted to consumer fraud. Posner said that consumer protection law doesn’t cover any possible facts about companies, but that more analysis would be needed on that issue (again, unrelated to slavery reparations).

“how is forcing someone to spend money researching something ‘that can do no harm’ not doing them harm?”

I guess we may have to disagree about what regulations amount to “harm” to a company. Is it “harm” when a company is forced to provide, say, accurate nutrition labeling? I’d say it’s nothing more than a cost of doing business.

Certainly

15 OBQuiet 11.02.08 at 6:34 pm

“Is this about anything besides Obama’s skin color?”

Perhaps the rumored appointment of someone known to be sympathetic to the idea? The fact that his church and pastor for 20 both push the notion? The fact that in at least of couple of interviews and debates he seemed to steer around the topic?

I guess if he has flat out said he opposes them, I will accept this in much the same way I accept his pledges to “aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election,” while never engaging in real negotiations on the issue. I have enough other reasons for dismissing the Jr Senator from Illinois without having researched his views on this matter.

“Is it “harm” when a company is forced to provide, say, accurate nutrition labeling?”

I’m having difficulty taking this comment seriously. Does providing nutrition information provide needed information about the merchantability of a food product? Of course it does. I guess you COULD argue that it should be up to the consumer to not buy items not so labeled but at least there is a direct and tangible benefit to the consumer for this information being on food items.

How does knowing that Wachovia once accepted slaves as a payment for a debt before your great great great grandfather was born affect how well a loan to support a public housing development compares to one from PNC? It is a clearly political cost. Why not just require anyone doing business with the city to fund public daycare? It would still just be a cost of doing business and at least then there would be an actual benefit for someone.

But, assuming you are right. I am VERY glad to know that businesses will not have to bear the costs of defending those ridiculous reparations lawsuits anymore.

I would add that I find your dismissal of the Civil war rather strange. Yes, the war was over Secession. But the South would not likely have seceded except for the issue of slavery. Had there been no movement to abolish it, there would most likely have been no war.

But since you seem to be implying that my interest in correcting what I saw as error on your part shows evil intent on mine,(did you really mean to imply I am a racist? Is there some variation of Godwin’s Law at work here?) I think I will stop commenting on the issue.

16 James 11.02.08 at 6:58 pm

“Perhaps the rumored appointment of someone known to be sympathetic to the idea? The fact that his church and pastor for 20 both push the notion? The fact that in at least of couple of interviews and debates he seemed to steer around the topic?”

Is any of this fair?

Are there any *credible* rumors that Obama is going to appoint a reparations advocate? Ogletree doesn’t seem a likely choice for Assistant Attorney General, and no one on Obama’s transition team has suggested he’s being considered.

His church doesn’t advocate reparations. The fact that one of his former pastors has done so is hardly relevant. You can be sure that no one has asked whether McCain’s ever had a pastor who supported reparations.

Have I missed an Obama interview or debate in which he discussed reparations? Every time I’ve seen or read him commenting on reparations, he’s made clear that he strongly opposes reparations for slavery.

“Does providing nutrition information provide needed information about the merchantability of a food product? Of course it does.”

No, it doesn’t. It provides information that some consumers (mostly of the liberal persuasion, I’d wager) consider helpful in making decisions.

“How does knowing that Wachovia once accepted slaves as a payment for a debt before your great great great grandfather was born affect how well a loan to support a public housing development compares to one from PNC?”

There are consumers who care a great deal about whether a company has derived benefits from slavery, and if so, whether that company has been forthcoming about that fact and whether it has done anything about it.

You may not agree with that value judgment, but I don’t see how it’s any different than my disagreeing with your value judgment that having nutritional information is “needed” to make decisions as a consumer.

“I am VERY glad to know that businesses will not have to bear the costs of defending those ridiculous reparations lawsuits anymore.”

Me, too. But just how many reparations lawsuits did you think there were? :-)

“I find your dismissal of the Civil war rather strange.”

I don’t dismiss the Civil War. It was a hugely important historical period. However, the South didn’t secede because of the relatively few abolitionists in the North. And that’s beside the point. While our nation’s slavery may in some sense have caused the conflict and the deaths, our nation’s soldiers didn’t sacrifice their lives to end slavery.

How anyone could see the Civil War as somehow atoning for slavery, or allowing us to dismiss reparations because it was fought, is beyond me. It’s like a criminal agreeing to mend his ways. That’s terrific, but no one would suggest that he’s atoned for his past crimes merely by not committing any future ones.

“did you really mean to imply I am a racist?”

No, and I don’t believe I did, either.

I suggested that people who focus attention on whether Obama might harbor plans for slavery reparations, despite being publicly opposed to them, don’t seem to give the same attention to McCain.

Again, I wonder just what’s different about Obama than McCain or Bush or Gore or Kerry. No one asked whether their ministers have ever implied that they favored reparations. If they had, I can’t believe anyone would suggest that we should be suspicious of them.

17 James 11.02.08 at 7:00 pm

“Is there some variation of Godwin’s Law at work here?”

By the way, good reference! :-)

18 RC 11.03.08 at 8:53 pm

I agree with those who ask about Africa’s contributions to any reparations. Yes, white people may have bought slaves, but if the African tribes had not been selling other tribes or prisoners of wars they had control over, there would have been no one to buy. Also, if reparations are considered, let’s also include England and other European countries in the contributions, because it was those countries that actually did all the buying and selling for hundreds of years before we became the United States of America. In fact, we freed the slaves within 100 years of becoming a country.

19 RC 11.03.08 at 9:02 pm

James, the different treatment is that it is apparent from Obama’s own words in the interview from 2001, the way he and his wife talk about this country, his books, his associations – a number of things – Obama’s focus is on race and using the legislature and judiciary to further his social agenda and righting past wrongs. Have you Googled and read some of the things Ogletree has said? The reason he has kept quiet is the same reason they kept Michele Obama under wraps for the campaign and Obama tried to hide his true views: to get him elected. I read statements from an interview of an Obama staffer who said what they would do is get Ogletree to be very middle of the road like Roberts to get elected, then after a year or so vote exactly opposite of him. You are all so very naive. Obama is a “bait & switch” president. He will say and do anything to get elected. Haven’t you ever noticed when he is presented with a question where the answer might not be too good for him and does not allow him to use one of his canned responses? He has to stammer and try to come up with something that is not too damaging. Look at the coal comment. You could even hear in the interview that he was trying to get around the negative aspects of his answer. I don’t believe anything he says. The good thing is that there is so much audio and video and print media of what he has said and promised that no one will be able to forget and Repubs can easily remind the public in elections two and four years down the road.

20 James 11.03.08 at 11:36 pm

“Obama’s focus is on race and using the legislature and judiciary to further his social agenda and righting past wrongs.”

That’s fascinating. My own impression is that Obama is not at all focused on race, but rather believes (perhaps unrealistically) that we can simply move beyond race.

Certainly his social agenda looks remarkably like those of other Democrats. In fact, it’s not very distinctive at all.

As for the judiciary, in that 2001 interview, he specifically says that he thinks it was wrong for the leadership of the civil rights movement to focus on achieving change through the judiciary. He says that the proper approach would have been to seek change through the democratic process.

Have you Googled and read some of the things Ogletree has said?

I interviewed Ogletree for a documentary on PBS. While I certainly don’t agree with some of his more radical proposals, at bottom his goals are quite reasonable.

In any event, Obama has taken a number of positions at odds with Ogletree’s views. There’s no reason to believe that they think alike, any more than McCain could be held to the views of people he’s consulted with or been advised by.

“they kept Michele Obama under wraps for the campaign”

Actually, she’s been speaking in front of the press just about every day. And her views prior to the campaign are not radical.

“I read statements from an interview of an Obama staffer who said what they would do is get Ogletree to be very middle of the road like Roberts to get elected, then after a year or so vote exactly opposite of him.”

I’m not sure I follow what you’re saying in that sentence. It sounds like the Obama campaign is supposed to be planning to get Ogletree onto the Supreme Court, and an Obama staffer gave away the secret plan in an interview?

No offense, but there’s no way that Ogletree would be confirmed to the Supreme Court. He’s an advocate of slavery reparations, for cryin’ out loud. I can’t believe anyone would waste time on a secret plan for that. It’s just someone’s paranoid fantasy.

21 James 11.04.08 at 8:50 am

RC, I agree with you that Africa bears responsibility for the slave trade, too. In fact, I’ve been to Africa, and everyone I met (scholars, government officials, etc.) was quick to acknowledge that their society, and their ancestors, were full participants in the slave trade.

I don’t believe, however, that this in any way diminishes our society’s responsibility for its role in the slave trade and slavery, so I hope that wasn’t what you were implying.

You also write that it was European countries “that actually did all the buying and selling for hundreds of years before we became the United States of America.”

I’m not quite sure what you mean by this. The American colonists were plying the Atlantic and bringing over slaves from the earliest days of the colonies. Surely the European nations which traded slaves bear their share of responsibility, but it isn’t as if our society weren’t fully participating, too.

Finally, you note that “we freed the slaves within 100 years of becoming a country.”

We did. We freed our slaves within a century of becoming a country, and only about two and a half centuries after (as colonial settlers) we began trading and owning slaves.

Are you suggesting anything by noting this fact? That we acted quickly enough (“only” a century) that our responsibility for slavery is less, perhaps? Or that our unwillingness to end that profitable business in the first generations after independence proves that we were fully responsible for what took place?

22 kat 11.07.08 at 8:53 am

Reparations to blacks will also raise issues of compensation to other repressed groups. Almost everyone except white male Protestants were discriminated against at one time or another. Should we compensate the Chinese, Jews, Catholics, Native Americans, other immigrant groups? And don’t forget women who to this day, I believe, face more discrimination than minorities. And what about victims of crimes? Surely those people were oppressed, particularly if the crime was committed due to racial or sexual or gender hatred. The reparations movement only continues the victimization policy of the old school black leaders. It’s time to move on from that.

23 James 11.07.08 at 9:38 am

Kat, it’s easy to say that the reparations movement only perpetuates a victim mentality, and that we simply ought to “move on from that.”

However, this ignores the fact that the legacy of slavery is with us today. You can argue, if you want to, that blacks should ignore the manifest injustices which with they still grapple every single day in our society, and which can be traced back to the evils of slavery and discrimination. But we can’t, in all honesty, say that it’s simply all in the past.

It’s true, as you say, that many groups have been discriminated against in our history. But it’s important to note that these injustices were not equal, and have not lingered to the same extent.

For instance, you mention historic discrimination against Catholics. This was, of course, bad, although not remotely as bad as enslavement. What’s really important, though, is that Catholics were always given more opportunities than blacks, and gradually came to be seen simply as white, and as entitled to fair treatment as anyone else.

In the 20th century, then, while Catholics were largely considered the equal of anyone else, blacks were still facing lynching, inferior public schools, discrimination in jobs, housing, higher education, and so on. Meanwhile, massive U.S. government programs helped to build the middle class by providing tremendous funding for higher education, homeownership, small businesses, and so on. These programs were open without limits to Catholics and other white groups, while being mostly closed to blacks.

Naturally, this means that Catholic families in this country have generally benefited from all of this government largess, and more importantly, from the freedom to work hard and pursue the American dream. Black families, meanwhile, were denied all of these benefits, which has lingering effects on later generations and makes it much more of a challenge to catch up.

As I said, this varies by group. The treatment of Native Americans more closely matches that of blacks in this respect, while the fate of Jews in this country more closely matches the pattern of Catholics in this sense.

When it comes to women, meanwhile, I agree with you.

24 S.C. Johnson 12.09.08 at 8:36 pm

There is one reason, and only one reason, why reparations will not be addressed; Note the State of North Carolina’s report on the 1898 Wilmington Race Riot and you’ll have the answer.

http://www.history.ncdcr.gov/1898-wrrc/report/report.htm

If that isn’t obvious enough, lookup anything pertaining to the politics of the American Eugenics Movement or Rev. Wayne Perryman’s lawsuit against the DNC.

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