A group of African-Americans is demanding in federal court in New York that the United States acknowledge its culpability in the practice of slavery. The class-action suit filed last month against three American corporations that benefited from slavery faces major obstacles, not least of which is the lack of legal precedent or clear historical analogy. Although the litigation arouses great fear among critics, past cases of reparations elsewhere indicate that the slavery lawsuit could become an invaluable tool for bridging the racial divide in America.
It's doubtful the suit will successfully raid the coffers of Aetna, FleetBoston Financial Corp. or CSX Corp., the three firms accused of profiting from an institution that has been abolished since 1865. Some people object to the court filing because none of the potential beneficiaries of any reparations that might be gained from a successful suit is a direct victim. To counter the criticism, one of the plaintiffs' lawyers has promised that no individual descendants of slaves will benefit from a financial settlement.
"This is not about individuals receiving checks in their mailbox," said attorney Roger Wareham, explaining that any damages awarded from the suit will be used to create a social fund to improve health, education and housing for African-Americans.
But this is a weak argument because it is a well-established convention that descendants of victims are entitled to damages. Nobody would deny a wrongful death suit because the victim is deceased. Shouldn't descendants of slaves also be viewed as victims?
But what if the plaintiffs do get to share the wealth? Does that diminish the suit's viability? Why should African-Americans be forced to explain, in apologetic tones, that the reparations would be for the larger
social good as opposed to individual benefit? Because that's the legacy of slavery: the foundation of a vast racial chasm and simmering animosity between blacks and whites. If this suit is about anything, it should seek finally and firmly to acknowledge and quantify the long-term suffering caused to African-Americans by the abhorrent practice of slavery.
True, two of the most famous historical cases of reparations – Japanese-Americans placed in internment camps during World War II and slave laborers used by German corporations during the same period — compensated only surviving victims. Yet descendants of survivors did receive compensation for lost property. Neither group needed to legitimize their claims by denying themselves personal benefit.
Which of these cases is analogous to that of African-Americans? Probably neither. The precedents provide only general principles, and the differences are too significant to allow a simple comparison. Slavery was not limited to several years, nor have the economic losses of African-Americans ever been determined in any formal way. The legacy of slavery is racism, Jim Crow segregation, and the current racial divide. While a communal benefit may be the most moral solution to a slavery settlement, let's not forget that the suffering was and is personal.
If the class-action suit proceeds far enough through the legal system, and perhaps even reaches the stage of exploring remedies, public discussion is likely to provide momentum for a congressional hearing. An "Eminent Persons" committee might even be appointed to study the question of reparations.
Here's the question that should be on the congressional inquisitors' lips: How much worse off are descendants of slaves because of lingering racism? That issue would be immensely controversial, the answers more so. But this is the normal course of political debate, and we shouldn't shy away from it because it's uncomfortable. Despite widely differing public viewpoints, such a discussion may encourage policy makers (and ultimately, the public) to agree on a number that will at last acknowledge the extent of the national debt for African-Americans' suffering.
No doubt, critics on both sides will be unsatisfied with any quantification of the damages. Yet an agreement that would allocate funds for housing subsidies, health care and education opportunities might be formulated in the language of reparation and apology and thus ease the contentiousness associated with affirmative action.
Perhaps more important, the reckoning and the possible partial reparation could facilitate a healing process between the races, which can only start after a sincere acknowledgement of guilt.
Elazar Barkan is a professor of history and chair of the cultural studies department at Claremont Graduate University in California. He is the author of "The Guilt of Nations: Restitution and Negotiating Historical Injustices" (2000) and a writer for the History News Service.