Reparations: A Misguided Movement
Excerpted from the
Prof. Peter H. Schuck article
which appeared on Dec. 9, 2002 in the
University of Pittspurgh's School of Law publication "Jurist"
"Let us stipulate -- because it is manifestly true -- that American slavery was a
horrendous crime and a moral abomination. Let us further stipulate that this crime had
countless victims and that their descendants still experience adverse effects today, seven
generations later. Finally, stipulate that our society subscribes to an ideal of
corrective justice that recognizes a legal duty compelling wrongdoers to remedy
wrongfully-caused losses and to surrender wrongfully-obtained gains. Does this require the
payment of reparations by the federal government to . . . somebody? Does it justify such
"My answer to both questions is no -- and not just because of
uncertainty about who the "somebody" would be, although as we shall see this
poses a serious practical problem.
"Here are just a few of the numerous implementation problems that a reparations law
would need to solve.
"First, how would it define the beneficiary class? Would it include all blacks in the
U.S. or only those descended from slaves? If the former, what about [recent, post-slavery]
immigrant blacks and how would "black" be defined in an increasingly
multi-racial society? If the latter, what about descendants of free blacks?
"Second, how would the beneficiaries prove their entitlement? Absent a clear
definition of black (who would judge?) or reliable documentary evidence of descent (surely
lacking in most cases), what presumptions would be accepted and how could they be
"Third, would beneficiaries have to show that American slavery caused their current
Note: Under the American system of justice, civil courts (lawsuits) and criminal
courts (prosecution of crimes) require such proof of wrongdoing, criminal acts, or harm.] What if they would otherwise have
been killed or enslaved by their African captors, or sold to non-American masters?
"Fourth, should all taxpayers bear the cost of reparations, or only those descended
from slaveowners or from those who lived in the slave states? The list of such
technocratic questions - none of them fanciful - could be extended endlessly.
"Even though affirmative action does not entail direct payments for past
discrimination, most supporters view it as a compensatory program; the greater economic
opportunities it affords its beneficiaries do constitute a kind of reparations and are
intended as such. After more than 30 years of affirmative action -- and my work on a
comprehensive article on this subject in 20 Yale Law & Policy Review 1 (2002) --
several effects seem clear. (Many other effects, both good and bad, are more debatable).
"First, the number of individuals who are now eligible for preferences dwarfs the
group that they originally and most compellingly targeted -- the descendants of slaves and
the victims of Jim Crow. Today, the eligible groups include other categories (women,
Hispanics, Asians, and sometimes the disabled) as well as millions of immigrants of color
whose ancestors did not experience slavery here.
"Second, law's inherently technocratic modalities have tended to (literally)
de-moralize affirmative action programs. By implementing preferences through a system of
contestable definitions, measurements, sanctions, regulations, and litigation, the law has
politicized, bureaucratized, and trivialized what was once a moral project. ...
[T]his moral imperative can be served better in other ways.
"Third, affirmative action's unpopularity, even among many members of the beneficiary
groups, has created new barriers to inter-racial reconciliation and heightened the
salience and divisiveness of race -- precisely the opposite of the advocates' originally
"The competition for greatest victimhood is almost inevitable both for political
reasons and for a legal one; standard equal protection doctrine invites such comparisons
in order to determine the appropriate standard of review. This competition is not an
edifying sight -- and not just because we lack a common metric for measuring and comparing
injustices of this kind. It often descends into an ugly struggle for public resources,
recognition, recrimination, and moral status among people who have already suffered enough
and who should be the last to view injustice as a zero-sum game.
"Is slavery the greatest injustice in American history? Probably so, but I would not
expect Native-Americans whose ancestors were systematically exterminated by the U.S. Army
to readily cede the point.
"Were the indentured servants of the colonial period or the Chinese coolies of the
nineteenth century more harshly treated or less deserving of reparations than the Japanese
internees? What about the internees' Japanese ancestors who were not permitted to own
farmland, marry whites, or enter professions? What about the Irish immigrants who were
forced by hateful discrimination to live in conditions arguably as degraded as slave
cabins? Should we view their whiteness as an emblem of privilege sufficient to redeem
their long suffering without further recompense?
"The movement for black reparations, however well-intended, is misguided. Indeed, it
is perverse in its propensity to discredit the very ideal of corrective justice that it
invokes, to aggravate bitterness rather than assuage it, and to make reconciliation more
"Our obligation now is to engage with and learn from the past, and then to move
forward by turning the page. As we turn it, we must not forget that we are leaving behind
an endless catalog of crimes, tears, and scars of the lash, of prejudice, and of poverty.
We must leave this human misery and injustice behind, but not out of mind or conscience.
We already have a long agenda to challenge our moral faculties and remedial imaginations
as we assess our responsibilities to one another both now and in the future."
Last known link to the original Peter H. Schuck
guest Columnist Peter H. Schuck is the Simeon E. Baldwin Professor of Law at Yale, where
he teaches Torts; administrative law; immigration and refugee law; remedies for
governmental wrongs; groups, diversity and the law and other subjects. He is the author of
the forthcoming Diversity in America: Keeping Government at a Safe Distance
(Harvard/Belknap, April 2003) and The Limits of Law: Essays on Democratic Governance
Professor Schuck holds MA and JD degrees from Harvard Law School and an LLM from New York
University. He served as Deputy Dean of Yale Law School from 1993-94.