Tuesday, September 1, 2015

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

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

For part one of this analysis, click here.

The Con Position

There is very little support for reparations across the broad spectrum of the U.S. population. Even the mere notion of forming truth commissions or issuing an official apology is viewed negatively and indeed, no U.S. President has done so as of the date of this analysis. Perhaps much of the reluctance to apologize is rooted in the fact an apology is defacto admission of culpability or guilt and no one can predict what will follow such a declaration.  Much of the argument against reparations is a pragmatic one.  How can they be implemented? A significant number of U.S. citizens had no part in slavery, or Jim Crow laws. Indeed, many entered this country well after the conflicts of those times. Perhaps reparations are in order in very narrow, specific cases but this resolution calls for the U.S. Federal Government to take a collective action on behalf of African Americans generations removed from the direct atrocities of slavery. In addition, since the 1960s the USFG has taken actions and enforced laws aimed at leveling the playing field for disenfranchised and discriminated groups.

But the core of the argument for this analysis boils down to the fact reparations are legal redress and so certain standards must be met to the satisfaction of the courts, all the way to the U.S. Supreme Court.  As for the passage of new legislation, there seems to be zero support in Congress. Representative John Conyers Jr. of Michigan introduced H.R. 40, The Commission to Study Reparation Proposals for African Americans Act in 1989 and has reintroduced it to every session of Congress since and it has never been picked up even though support for the bill has at various times increased.  Amazingly, if Congress is unwilling to consider a bill to merely study the problem, how much less to enact a reparations proposal. So it would seem, even if Pro can make a prima-facie case the USFG OUGHT To pay reparations, under the present political environment and mood of the citizenry, it will not happen. In fact, the evidence for Con shows the issue is exceedingly divisive and may alienate blacks and whites even more than they may be today. It also seems, the idea of a collective action shakes the very core of a fundamental American value which is where we shall begin.

American Individualism

Collective actions are tough to enact because they rub against a very core value rooted deeply in the American psyche: individualism.

Biddle (2012)
With government expanding ever more rapidly—seizing and spending more and more of our money on “entitlement” programs and corporate bailouts, and intruding on our businesses and lives in increasingly onerous ways—the need for clarity on this issue has never been greater. Let us begin by defining the terms at hand. Individualism is the idea that the individual’s life belongs to him and that he has an inalienable right to live it as he sees fit, to act on his own judgment, to keep and use the product of his effort, and to pursue the values of his choosing. It’s the idea that the individual is sovereign, an end in himself, and the fundamental unit of moral concern. This is the ideal that the American Founders set forth and sought to establish when they drafted the Declaration and the Constitution and created a country in which the individual’s rights to life, liberty, property, and the pursuit of happiness were to be recognized and protected.

While an individual may be willing to pay for collective projects such as a city park levy, they are very resistant to paying for something for which they receive no direct, perceivable benefit. In addition, individualism endures different outcomes based upon abilities and resources. It's natural to expect that some people will rise above their circumstances and some will fail because each is endowed with individual traits, strengths and weaknesses. Of course within the American individualist's mindset is recognition that equal opportunity is essential.

Hall (2000)
Reparations was the advocacy flag of the nationalists in their internal struggle with integrationists, who argued that ending the old de jure discrimination was sufficient, and now people of African descent have to be able to work and cooperate within the system. The reparationists argued that America had a duty to remedy the past and maintain measures to equalize a society that was more than superficially divided. The two camps differed primarily in their particular views of the dominance of the individual versus that of the group. Integrationists focused on the individual. For integrationists, "[t]he war [was] seen, in essence, as a war between individuals with different attributes, of which race [[was] only one. Equality exist[ed] as long as the rules of the game [were] fairly and even applied to everyone, without regard to race."  

From a legal point of view, which we shall explore more fully in this analysis, compensation for wrong-doing requires the identification of a perpetrator and while the perpetrator may, under certain circumstances, be a collective entity such as a corporation, the claim becomes much more complex when the initial harms occurred many years before involving different sets of individuals. As a result of these legal difficulties, reparationists are often forced to resort to more esoteric principles.

Posner & Vermeule (2003)
But the problem facing those seeking reparations is that positive law never recognized the initial claim (as in the case of slavery), or that the victim never assigned the claim even if he could, or that the statute of limitations bars legal proceedings. Reparations claims appeal over the head of law to morality, and it would be only under the most unusual circumstances that a third person has a moral claim against a wrongdoer, who has never harmed this third person, as a result of the latter's purchase of the claim from the victim. (pg 699-700)

The value of autonomy and the concept of strong individualism is carried over into the legal system such that each is responsible for her own actions. Sometimes strong individualism is softened by weakening the 'hard' individualist identity on the basis of a philosophical premise or a moral ideology which collects individuals into a corporate identity. However, "[t]o some, this strategy is a subterfuge." (Posner & Vermeule p.703)

The Legal Case

It is a core principle of American jurisprudence that a wrong-doer should pay for harms inflicted upon others and indeed the law prescribes many ways this payment can be made. As I have already noted in the previous contention, identification of individuals is a core requirement needed to move forward with a claim. In the Pro position I presented the statement of Rep. Henry Hyde who reasonably asks the question why individuals who had nothing to do with slavery, or other crimes against African Americans should be held liable for harms against the ancestors of those living today?

Brophy (2004)
It appears that the type of argument that has gained the most attention-and is advanced most seriously against reparations-is that the people currently asked to pay had nothing to do with the injustices of the past. This argument draws on a popular thought in the United States, and western culture more generally, that liability should attach to fault, that people should receive punishment (or rewards) based on their personal culpability. Carried to an extreme, as many reparations skeptics do, that implies that one should be liable only for the harms one causes, that there is no general societal culpability.

It is also important to note the person claiming compensation is due, should indeed be able to prove suffering or loss as a result of the harms for which the perpetrator is held culpable. This puts an enormous burden on the claimant to show how, after more than one century of various attempts to outlaw or correct for the sins of the past, do those harms inflicted upon one's ancestors continue to harm one today?

Thompson (2005)
The third problem faced by those who defend reparations for slavery is explaining why presently existing African Americans are owed reparation for this historical injustice. Since they are not the ones against whom this injustice was committed, then, according to the standard account, it is difficult to understand how they could be candidates for reparation. If injustices have been committed against them during their lifetime, then they are entitled to reparation for these wrongs – but not for slavery, not for the system of oppression that was put in place in the South after the Civil War, and not for other historical injustices to African Americans. (pg 5)

While the ugly scenery of America's past remains in clear view, we must also look tothe ensuing struggle which followed for both black and whites to correct these wrongs; a struggle which began long before the 1860s and resulted in a war which left the country in a deep divide for at least another century until the Civil Rights movements of the 1960s.

Brophy (2004)
There are other ways of paying the debt, though, besides cash payments. Part of the argument that reparations have been paid is the assertion that the Civil War paid that debt. Lincoln scholars are particularly active in advancing the argument that the Civil War was part of abolishing the debt to African Americans. (pg 1208)

This begs the question, is there really a debt owed by today's society?  Both sides paid a heavy toll in the struggle to end slavery and eventually the reforms which began in the 1960s have more than paid back for past harms.

Brophy (2004)
The next most popular argument is that reparations have been paid in the form of Great Society programs, like the war on poverty and affirmative action, as well as welfare. (pg 1206)

So we can sum up this contention, if necessary, with acknowledgement that many horrible wrongs were committed. It would be foolish for Con to deny them. So because of the difficulties in assigning blame to individuals, Pro may shift the focus to the collective and point to those groups, corporations, and government structures which perpetuated the harms. Let's also not lose sight of the fact if the USFG pays the burden is on individuals. But Con has a rebuttal.

Thompson (2005)
The second problem is identifying the agent who can legitimately be made responsible for reparations in the case of a historical injustice like slavery. The slaveholders are dead, and so are all of the government officials, politicians and others who supported slavery or made it possible for it to exist. The most plausible candidates for responsibility are those intergenerational associations which in one way or another aided and abetted slavery: the American government, which for a long time tolerated slavery and passed and enforced laws that supported it, companies which profited from it, churches which condoned it. But there are obvious problems with assigning responsibility to collectives – especially a collective like a nation which has a largely non-voluntary membership. At one time, says Boxill, the US Government had a duty to pay reparation to slaves. (pg 3)

And really, that is the point.  At one time the government had a responsibility, and so did the churches, and banks, and railroads and companies.  But the opportunity for redress has long passed, as tragic as that may be.

The Lessor of Two Evils

Now let us consider another aspect of legal redress. We can recognize the evil of slavery for what it is and wonder what possible remedy can now be offered that would even come close to compensating such treatment of a fellow human being. The root meaning of reparation is "to repair"; to restore to wholeness, so to speak and how is it possible in these days to make whole those victims who lived and died so long ago?

Thompson (2005)
The problems of claiming reparations for slavery are obvious. First of all, to enslave someone is an evil for which there is no reparation in the above sense – any more than there is proper reparation for torture or murder. Forms of reparation for slavery that have been proposed reveal the gap between the nature of the injustice and any possibility of repair. Corlett, for example, suggests that reparations are owed for the labour power stolen from those who were enslaved; others have suggested that compensation should be based on what slaves could have earned if they had been free workers. But the evils of slavery go far beyond the stealing of labour power (which, according to Marx, is done by capitalists to every worker) or denial of wages. The point is not that it is inappropriate to offer monetary compensation for irremediable injustices, but that in these cases compensation is not reparation in the standard sense, but should be regarded as a symbolic gesture that shows the willingness of perpetrators to aknowledge an injustice and their desire to make recompense for it.(pg 2-3)

Pro is now advocating that all these generations later, the descendants of those victims are claiming damages for themselves. Additionally the charge is made the descendants and heirs of the perpetrators financially benefited. While we may sympathize and have compassion for the suffering of others, the law prescribes standards by which to measure the damages.

Thompson (2005)
But there is a well known difficulty in making these bad effects into grounds for reparations for slavery. For it seems that existing African Americans, in order to claim reparations for slavery, have to show that they are worse off than they would have been if slavery had not existed. But if their ancestors had not been enslaved, removed from their country, shipped to America, these descendants would not have existed at all, and can therefore not claim to be worse off. So it seems that reparations for the legacy of slavery can only be owed to black Americans for the unjust deprivations that they have suffered during their lifetimes. (pg 5)

This standard is not only unique to American law.  It was apparently inherited from the common law tradition which originates in Britain. Needless to say, British colonialism as yielded many calls for reparations and the same standard is applied.

Butt (2014)
The principle challenge which this approach faces turns on its use of counterfactual reasoning. In order to say that a given group has been advantaged and another group has been harmed by historic wrongdoing, we need to make some kind of claim as to how they would have fared in the absence of the injustice in question.(pg 4)

Therefore when we compare the present state of African Americans with their sub-Saharan counterparts with whom they share common ancestry, the damages are difficult to measure since that region is among the poorest on the planet with a myriad of poor health outcomes, poor governance and social problems far worse than those in the U.S. I personally, find this contention difficult to argue as it forces us to consider a kind of lessor-of-two-evils scenario in which the irreparable crime of slavery has resulted in a bad situation which is comparatively less bad than the outcome would have been for this generation if the forced slavery had never occurred. I bring it into this analysis because Con literature addresses it, no doubt much better than I do. It is the kind of question which courts may demand answered. There is no justification for slavery and some authors contend, there are no reparations possible.  But when we speak of what is due to or owed by members of this generation it is a matter of debate; hence the resolution.

Before moving on to the next contention, we address the question of whether whites in general and the South in particular profited from the unpaid labor of slaves.

Williams (2014)
Reparations advocates make the foolish unchallenged argument that the United States became rich on the backs of free black labor. That's nonsense that cannot be supported by fact. Slavery doesn't have a very good record of producing wealth. Slavery was all over the South, and it was outlawed in most of the North. Buying into the reparations argument about the riches of slavery, one would conclude that the antebellum South was rich and the slave-starved North was poor. The truth of the matter is just the opposite. In fact, the poorest states and regions of our nation were places where slavery flourished -- Mississippi, Alabama and Georgia -- while the richest states and regions were those where slavery was absent: Pennsylvania, New York and Massachusetts.

Dr. Williams' sums up the question of whether slavery was profitable for the South quite nicely, but reparationists will often claim that many of the social ills suffered by African Americans today are due to the lingering effects of a culture of repression and as some may claim, a sort of stress induced trauma arising from centuries of racism. We can allow dr. Williams to provide an answer.

Williams (2015)
Today the overwhelming majority of black children are raised in single female-headed families. As early as the 1880s, three-quarters of black families were two-parent. In 1925 New York City, 85 percent of black families were two-parent. One study of 19th-century slave families found that in up to three-fourths of the families, all the children had the same mother and father. Today’s black illegitimacy rate of nearly 75 percent is also entirely new. In 1940, black illegitimacy stood at 14 percent. It had risen to 25 percent by 1965, when Daniel Patrick Moynihan wrote “The Negro Family: The Case for National Action” and was widely condemned as a racist. By 1980, the black illegitimacy rate had more than doubled, to 56 percent, and it has been growing since. Both during slavery and as late as 1920, a teenage girl raising a child without a man present was rare among blacks. Much of today’s pathology seen among many blacks is an outgrowth of the welfare state that has made self-destructive behavior less costly for the individual.

Answering the Moral Argument

It seems inevitable that many Pro cases will attempt to justify reparations on the basis of some moral philosophy.  This is often ground for Lincoln Douglas debate but I think appealing to general principles of right and wrong is legitimate in Public Forum Debate. We can all agree that forcing a people into slavery is an immoral act. We can debate whether or not reparations for later generations is moral.

Thompson (2005)
But a political practice of requiring present citizens to honour past agreements or past debts needs a moral justification. The government is supposed to represent the people, and the problem remains of justifying the imposition of moral debts on citizens who were unborn when the wrongs occurred. There is in fact a robust tradition in American thought, and indeed in liberal thought in general, that holds that a democratic nation of free individuals ought not to tolerate such impositions. According to Thomas Jefferson, ‘one generation is to another as one independent nation to another’ (pg 4)
Is it moral to "punish" children for the sins of the fathers?  It is a question that can be debated in a myriad of ways. Nevertheless, this analysis questions not only the legitimacy of reparations but also the impossibility of implementation in a fair and equitable way. Look to the age-old drowning child scenario.  If I see a child drowning and I am unable to swim, then how am I morally obligated to attempt rescue? A moral burden must be doable or it is not moral.

Closing Thought

Consider the learned opinion of Professor Alfred Brophy...

Brophy (2004)
...reparations talk divides the country along racial lines. By talking about the past and by focusing on past injustices, blacks alienate themselves from the rest of the country. Reparations talk leads blacks to see themselves as victims who deserve government payments.(pg 1209)

Brophy (2004)
Even more than recalling the past tragedies, however, reparations will require the government to draw further lines on the basis of race. For many reparationists see reparations not as a way of achieving integration and a color-blind society; they see it as a way of achieving further race-conscious action. (pg 1211)

The coaches and students have chosen a rich topic to open the 2015/2016 season.  Have fun with it.


Biddle, C. (2012), Individualism vs. Collectivism: Our Future, Our Choice, The Objective Standard, vol. 7, No. 1, 2012.

Brophy, A.L.; (2004); The Cultural War over Reparations for Slavery; Volume 53, Issue 3, Spring 2004: Symposium - Race as Proxy in Law and Society: Emerging Issues in Race and the Law; Article 10

Butt, D. (2014) Reparative Justice: the debate over inherited inequities, From Rupert Jones-Parry and Andrew Robertson (eds.), The Commonwealth Yearbook 2014
(Cambridge: Commonwealth Secretariat, 2014), pp. 197-99.

Flaherty, P. & Carlisle, J. (2004), The Case Against Slave Reparations, National Legal and Policy Center,  October 2004.
[In my opinion one should use this source only as a tool for finding primary sources!]

Hall, AA (2000), There Is a Lot to Be Repaired Before We Get to Reparations: a Critique of the Underlying Issues of Race That Impact the Fate of African American Reparations, 2 Scholar: St. Mary's Law Review on Minority Issues 1, 32-41 (2000) (295 Footnotes Omitted)

Posner, E & Vermeule, A, "Reparations for Slavery and Other Historical Injustices," 103 Columbia Law Review 689 (2003).

Thompson, J (2005), Memory and the Ethics of Reparation, Proceedings of the Seventh Annual Gilder Lehrman Center International Conference at Yale University, October 27-29, 2005, Yale University, New Haven, Connecticut

Williams, WE (2014), Slavery Reparations, Townhall.com, June 18, 2014.
(Dr. Williams serves on the faculty of George Mason University as John M. Olin Distinguished Professor of Economics)

Williams, WE (2015), The True Black Tragedy, LewRockwell.com May 19, 2015.

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