Sunday, August 30, 2015

PF Sep/Oct 2015 - Reparations for African Americans - Pro Position

Resolved: The United States Federal Government ought to pay reparations to African Americans.

For part one of this analysis, click here.

The Pro Position

In my opinion, all debaters of this resolution must read the "The Case for Reparations" by Ta-Nehisi Coates. The article, through specific case studies, provides a tremendous wealth of information demonstrating how African Americans have been exploited and discriminated against for the last 240 years and more, even before the U.S. had won its independence. Mr. Coates is a skilled writer and educator and no doubt the emotional impact of his "case" can provide a useful model for students debating the Pro in this resolution.  Recall debate employs modes of persuasion; pathos, ethos and logos and in public forum debate these elements are deeply rooted in strong warrants and evidence. So while we gain a great deal of insight from Mr. Coates' article (certainly one can make a reasonable Pro case from that single article) it is best to go deeper, beyond the undeniable history of overt racism in America and look at the justification for reparations within the U.S. legal system, the values of justice and morality, and the wisdom of experts and authorities. Claims, warrants and impacts are the keys to winning debates. At the end of the round you want to win and debates are won by persuading judges. There are no magic formulas or unbeatable cases.

The Pro case must be prepared to deal with the oft repeated sentiments of Congressman Henry Hyde, "The notion of collective guilt for what people did [200 plus] years ago, that this generation should pay a debt for that generation, is an idea whose time has gone. I never owned a slave. I never oppressed anybody. I don't know that I should have to pay for someone who did [own slaves] generations before I was born." The idea behind this statement will favorably impact many judges who no doubt, have never owned slaves. As I mentioned in my introduction to this topic, the debate gets more complicated when Con makes it appear the USFG is shifting the burden for reparations directly to individuals.  We will try to deal with this as we frame-up a Pro position.

The best case for Pro, in my opinion, extends the dehumanization of African slaves into the Antebellum South, through the Jim Crow era, into the Civil Rights movement of the 1960s; right up to this day.  Despite government initiatives and laws, overt racism perpetuated through the centuries as the government turned a blind eye and so slavery is just one example of a long history of unjust oppression. This idea serves to deemphasize slavery as the only justification for reparations.  The case for reparations linked exclusively to slavery will be difficult to sustain.  The case for reparations linked to a pattern of dehumanization of which slavery was just one more manifestation is a more compelling case.

The Harms

It seems logical we must conclude that hardships and disparity faced by African Americans today are linked to centuries of discrimination, repression and deeply rooted racism. One must ask themselves why after more than a century since the Emancipation Proclamation has such a high percentage of African Americans failed to break out of the cycle of poverty and urban decline which holds many individuals trapped and desperate? Why have government actions such as the Equal Rights amendment, the formation of the Equal Employment Opportunity Commission and Affirmative Action failed to make a difference in so many lives?  That's not to say progress has not been made, because clearly things have improved for many.  However, the mere fact we are still talking about race issues, and the fact we are debating this resolution points to the fact there are still barriers which must be recognized and eliminated.

Feagin (2004)
What are the grounds for large-scale reparations for African Americans? The basic rationale for group compensation lies in the stolen labor and lives of the millions enslaved until 1865, the stolen labor and lives of those legally segregated from the early 1880s to the late 1960s, and the continuing theft of labor and lives of those who face much racial discrimination today. This theft of labor and lives was carried out not only by whites acting as individuals, but also, for at least its first 350 years, by corporations and various local, state, and federal governments whose actions were often backed by law. Many millions of white Americans have been involved, individually and collectively, in the exploitation and oppression of African Americans now for nearly four centuries.(pg. 49)

The effect of these centuries of oppression in the U.S. have been profound. Therefore, I will present an overview of the harms which have been suffered and continue to the present. One interesting contention claims the loss of cultural identity for African Americans. The loss of identity is often a feature of dehumanization by oppressive regimes.

Arthur (2007)
Randall Robinson thinks that it is important, as we think about the question of damages, to focus on the loss of African language and culture that took place as a result of slavery.  Robinson speaks of how with "sadistic patience " slavery "asphyxiated memory, and smothered cultures, has hulled empty a whole race of people ." In doing so, every "artifact of the victims' past cultures, every custom, every ritual, every god, every language, every trace element of a people's whole hereditary identity" was destroyed . Janna Thompson also emphasizes how African-Americans were "deprived by slavery and other injustices of their African heritage. (pg. 216)

Dehumanization due to the loss of identity is seen worldwide in many cases of systematic oppression and genocide and I will leave it to the debater to investigate these impacts further.  On a more pragmatic level we can put an economic value on the impact of systemic racism.

Alexander (2013):
Bias based on race costs the United States a shade under $2 trillion a year. A more complete accounting of the toll taken by race-based chauvinism has arrived in the form of a W.K. Kellogg Foundation study that shows fallout from racism slashing the country's wealth. The study, released in October, posits that an income gap resulting in part from racism costs the country $1.9 trillion dollars each year. The study, titled The Business Case for Racial Equity, was conducted with the institute and scholars from Johns Hopkins, Brandeis, and Harvard universities and demonstrates how “race, class, residential segregation and income levels all work together to hamper access to opportunity.”

Jessie Daniels provides links to several resources with studies detailing the impact of racism on health including increased mortality rates, depression, and cardiovascular disease. The article sums up lamenting the lack of targeted studies to examine the issue in more detail. I leave it to you to follow the links provided in the article and research more deeply.

Daniels (2009)
The fact is, racism continues to extract a toll from people of color in terms of physical and mental health. It brings death sooner to the elderly and diminishes the life chances of the newly born. As this inequality persists and there continues to be lots of agreement among liberals that this sort of inequality is wrong, there is scant little attention paid to the ways that we can dismantle racism and improve everyone’s health, rather than continuing the current system of inequality that systematically and disproportionately benefits the health of white people.

As it turns out, members of the the U.S. Supreme Court at one time fully comprehended the impacts of racism in the U.S. In the case of University of California Regents v Bakke (1978), Bakke claimed loss of admissions due to preferential consideration of minorities. In other words, Bakke was claiming a kind of reverse discrimination. Justice Marshall, in his ruling on the case, very clearly describes the impact of prolonged, legal discrimination and the long history of government's tolerance of it's continuation despite the existence of laws intended to prevent it. For example, with respect to school segregation, the Marshall stated,

SCOTUS (1978):
"Judicial decrees recognizing discrimination in public education in California testify to the fact of widespread discrimination suffered by California-born minority applicants; many minority group members living in California, moreover, were born and reared in school districts in Southern States segregated by law. Since separation of schoolchildren by race "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,"

The psychological effects of racism have no doubt contributed to the inability of many African Americans to emerge from their condition and Justice Marshall understood this. But even more impactful perhaps is the pervasive legal discrimination which has prevented African Americans from fully blending into the American "melting pot".

SCOTUS (1978)
It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has [438 U.S. 265, 401]   not been realized for the Negro; because of his skin color he never even made it into the pot.

Thus it appears Justice Marshall also supports the Pro case in extending the source of harms well beyond the impact of slavery.

The Precedence

The Supreme Court ruling in Richmond v. J. A. Croson Co., Justice O'Connor claimed the link between past discrimination and present day societal discrimination was amorphous (SCOTUS 1989). In this case, the city of Richmond was preferentially awarding contracts to minority businesses as a kind of Affirmative Action to remedy past discrimination. SCOTUS ruled against the practice and further stated "To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for "remedial relief" for every disadvantaged group." (SCOTUS 1989). However, as I have claimed in the Introduction to this topic, there are numerous cases where bad laws and rulings are over-turned. In fact, the claimed amorphous link to past discrimination has been overlooked in other cases of reparations. Feagin (2004; p. 64-66) describes several significant examples of how the U.S. government has advocated for and granted reparations for past social harms.  In recognition of the extreme social injustices and crimes against humanity perpetrated by the Nazis and Japanese governments during World War II, the U.S government demanded reparations be paid, "As Richard Delgado has noted, “The United States required that Germany make reparations to Israel and the victims of the Holocaust, even though the Nazi government had been disbanded and most of its leaders executed or imprisoned.” (Feagin 2009). In 1977 the U.S. Congress passed a resolution "condemning the sexual enslavement of Chinese and Korean women by the Japanese army in World War II. It called on the Japanese government to pay immediate reparations for the enslavement and other crimes and supported an international court ruling of compensation of at least $40,000 for each victim (Feagin 2004).

Students of U.S. history should be aware that during World War II, Japanese-American citizens were forcefully removed from their homes and relocated to internment camps in reaction to anti-Japanese sentiment arising from the attack on Pearl Harbor in 1941. In 1987, the Congress issued a formal apology and paid $1.2 billion dollars in reparations to the families of the victims of forced internment.

In addition, many American Indian groups have pressed for reparations. Not only were their lands seized, often while under the protection of treaties, they too were pressed into slavery in substantial numbers and suffered significant discrimination by the U.S government. "[I]n 1980, after a lengthy court battle, the United States Supreme Court awarded the Lakota Sioux $122.5 million for more than 7 million acres taken illegally in the 1870s. Significantly, this cash award was refused by the Lakota, who insisted that their sacred land was not for sale and that the land itself should be returned" (Feagin 2004)

Thus despite a history of the U.S. government insisting upon and paying reparations to various ethnic groups, remarkably, restitution for African descendants for centuries of harms and hardships arising from governmental tolerance of racism and discrimination stains the reputation of a nation which prides itself on justice and fairness. The Pro position claims based on centuries of institutional racism and harms extending to this very day, the link to the past is hardly amorphous. It is clear in the statistics of unemployment, incarceration, and transgenerational poverty which have not been corrected by the Equal Rights Amendment or Affirmative Action and upheld in the precedence of reparations paid to other groups.

The Legal Basis

In law, as most debaters should know, an individual can sue another seeking recompense for damages.  These kinds of cases are conducted in civil courts as opposed to criminal courts.  In order to win the lawsuit, it is necessary to make a compelling case the defendant (the one being sued) intentionally, negligently or in liability carried out actions resulting in reimbursable losses. Often these cases include a punitive judgement (a form of punishment) as well.

One of the key legal arguments for reparations is based upon the idea of unjust enrichment. The idea that slave owners and corporate interests in the U.S. gained significant wealth from the "free" labor of slaves and continued to profit through unfair, discriminatory and predatory practices which unjustly and disproportionately harmed African Americans.

Feagin (2004)
The concept of unjust enrichment is an old legal idea traditionally associated only with relationships between individuals. From a legal perspective, unjust enrichment involves circumstances that “give rise to the obligation of restitution, that is, the receiving and retention of property, money, or benefits which in justice and equity belong to another.” In United States court decisions, the defendant has been required to give up the unjust enrichment, including gains later made from it. For example, these decisions do not generally permit a thief’s children to benefit from the father’s theft. “[I]f a thief steals so that his children may live in luxury and the law returns his ill-gotten gain to its rightful owner, the children cannot complain that they have been deprived of what they did not own.” (pg. 50)

To be sure, unjust enrichment is not just an acceptable legal remedy in civil court. It is now firmly established in the realm of common law.

Weinrib (undated)
“A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” In the past few decades, this principle of liability has recently become as firmly established in the common law jurisdictions as it has long been among civil law systems. Being a relatively new basis of liability, unjust enrichment is now the most dynamic of all areas of private law.(pg. 1)

As already discussed above (SCOTUS 1989), there is some precedence to the idea that the links between past actions, current harms and unjust enrichment may not always be clear and that tends to complicate the issue from a strictly legal perspective under current law.  Proper identification of the perpetrator and one deserving compensation is not always cut and dried.  Of course, this murkiness can be seen as an inherent barrier to reparations in the status quo. Nevertheless, as I have said previously in the Introduction, we are debating the "ought to" as a principle which legislation authorizing reparations can overcome. But even if the judge is not convinced by mere principles of right or wrong based on subjective morality, one can still find remedy within the scope of American jurisprudence.

Fullinwider (2000)
"The guiding paradigm of traditional remedies law," writes Rhonda Magee in the Virginia Law Review, "is the one plaintiff, one defendant lawsuit in which the plaintiff seeks the position she would have occupied 'but for' the wrong committed by the defendant." Within this paradigm, the demand by blacks for reparations seems unsustainable, since we can no longer identify individual successors to slave owners or state agents who promulgated legal oppression of blacks, nor separate out the respective harms to the successors of those who lived under slavery and Jim Crow. However, at least with respect to the matter of liability, it is not the "individualism" of American law that we need to give up but the assumption, implicitly at work here, that all liability is personal. The argument for reparations fits comfortably enough within the traditional paradigm when we make sure the focus is on corporate liability, for the corporate actor in question, the United States, is an "individual" under law. Indeed, precisely because it is an "individual" that doesn't die, it can acquire and retain debts over many generations, though individual Americans come and go. That is why Henry Hyde can indeed owe something as a result of his ancestors' actions. (pg. 3)

John Arthur of Binghamton University also discusses a legal remedy which is based on the responsibility of governments toward their citizens which closely aligns with this resolution calling for action by the USFG.

Arthur (2007)
The advantage of this approach for defenders of reparations is that it does not depend on showing that somebody today is benefiting from slavery or that anyone living today was morally blameworthy for having slaves or for segregation. Nor does it assume someone possesses something slaves' descendants are legitimately entitled to have returned to them, as with restitution. The fact that no persons living today could have caused the harm is irrelevant. Governments can be held responsible for the lingering effects of historic injustices they caused generations ago, because governments transcend the generations. (pg. 213)

The Need for Reparations

So the question now, is since most claims for institutional discrimination extend until the 1960s, have the civil rights reforms which followed been enough to mitigate the harms sufficiently to eliminate the need for reparations? Is it time to just forget the past and just move forward?

Fullenwider (2000):
Although the gains from the civil rights laws of the 1960s are undeniable, they should not be overstated. 1n particular, the narrowing income gap between whites and blacks masks a tremendous wealth gap. As Dalton Conley points out in an important new study, "At all income, occupational, and education levels, black families on average have drastically lower levels of wealth than similar white families." Moreover; he argues, it is the wealth rather than income of parents that proves pivotal to a child's ascending the academic and economic ladders to the middle class and beyond. The black-white wealth gap is large, enduring, and damaging. Moreover, it is for the most part a direct legacy of official and unofficial discrimination lasting into the 1960s.(pg.7)

In Summary

The legal basis for linking reparations to slavery has proven to be an elusive goal and one that is not necessary under the language of this resolution.  It can be argued that such barriers can and should be overcome by any legislation authorizing reparations but the complications of how to assign blame and identify beneficiaries greatly complicates the pathway to justice.

Fullenwider (2000)
Thirty years ago, in discussing a proposal put forward by Yale law professor Boris Bittker that the "post-Civil War wrongs are more than sufficient to support" a claim for reparations, the African American legal scholar Derrick Bell conceded that " the legal argument for reparations improves with the exclusion of the slavery period." Nevertheless, such exclusion, he thought, represents a "tactical loss." It "sacrifices much of the emotional component that provides moral leverage for black reparations demands." To the contrary, excluding slavery not only improves the legal case for reparations, it strengthens both the tactical and the moral cases as well by stripping them of diversionary complications. (pg 7)

In the Ta-Nehisi Coates article "The Case for Reparations" mentioned at the start of this position, the emotional impact of black dehumanization is loud and clear. Should all else fail pull it out in the round make an appeal to emotion.

In this analysis I offer no clues as to the form reparations should take nor is it necessary for the purpose of this resolution.  Reparations can be made in many ways from money to property.  Even a stark admission of responsibility and apology by the USFG may go a long way to restoring dignity to U.S. African American citizens who suffer from the lingering legacy of racism.

The Con position is here.


Alexander, D.(2013); Racism Literally Costs America $2 Trillion...Ready to Stop Payment?;; 2013

Arthur, J. (2007); Race, Equality, and the Burdens of History, Binghamton University, State University of New York; Cambridge University. Press, 2007

Daniels, J (2009); Racism Harmful to Mental and Physical Health; Racism Review;2009

Feagin, J.R. (2004); Documenting the Costs of Slavery, Segregation, and Contemporary Racism: Why Reparations Are in Order for African Americans; Harvard Blackletter Law Journal, vol. 20, 2004

Fullinwider, RK (2000); The Case for Reparations; Report from the Institute for philosophy and Policy; University of Maryland; 2000

SCOTUS (1978)
United States Supreme Court; UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE, (1978); No. 76-811; Argued: October 12, 1977    Decided: June 28, 1978

SCOTUS (1989)
Richmond v. J. A. Croson Co., 488 U.S. 469 (1989)

Weinrib, E.J. (undated); Unjust Enrighment; University Professor and Cecil A. Wright Professor of Law, University of Toronto; from the book entitled Corrective Justice (Oxford University Press)

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