Every so often, the call for African-American reparations re-emerges in full force. The Atlantic author Ta-Nehisi Coates is perhaps the most prominent pundit to issue the call in recent years, pointing to America’s shameful history of slavery and segregation as grounds for restitution. Because American depravities placed black people at an economic disadvantage, he reasons, and because no formal reparation has yet been paid, the United States should now right its wrongs.
Many other activists, such as Hillary Clinton, emphasize formal reparations less than race-based affirmative action as a way of elevating racial minorities. These thinkers generally argue that traditionally white institutions can help mitigate the enduring effects of past oppression by simply seeking out and offering special consideration to black applicants.
To evaluate either of these remedies to historical racism, we must determine what sort of society we favor and what mechanisms will allow that society to flourish. In ideal circumstances, I posit, people of all colors interact in a nonviolent and voluntary manner. They establish dominion over unowned land by mixing their labor with it. They purchase goods and render services at their discretion. They cultivate friendships, proffer gifts, invest in social action organizations, and collaborate in the spirit of non-coercive mutualism. By allowing peaceful people to use their bodies and property freely, this arrangement respects the individual character and autonomy of everyone it affects.
When people contravene these norms by aggressing against the bodies and property of their peers, we should (1) punish the aggressors and (2) force them to “repair” what they destroyed—in a sense, to make their victims “whole” again. In the event that a criminal dies before trial, his heir should not endure punishment but should be forced to return his ill-gotten property to its legitimate owner.
These principles have several implications. Suppose that a thief steals an innocent woman’s red purse, quickly hands it off to his unwitting wife, and then commits suicide. Must the wife, who aggressed against nobody, now return the red purse to her late husband’s victim? Indeed she must. Although she is not a thief herself, she possesses stolen property and has no right to withhold it from its rightful owner.
Now suppose that the thief, instead of giving the purse to his wife, bequeaths it to his daughter on his deathbed. Suppose that the thief’s victim’s daughter, 50 years later and after her mother has died, sees the thief’s daughter walking around with the stolen purse. Does the victim’s daughter here have a legitimate claim to the purse adorning the arm of a peaceful pedestrian? Again, the answer is yes. If the victim’s daughter can demonstrate that she would have inherited the purse had her mother never gotten robbed, then she can justifiably take the purse from the thief’s daughter.
Next, let us suppose that 5 men rob 15 women and then retreat to a neighborhood of 20 other men. Suppose that the 15 indignant women then enter that neighborhood and demand reparations from all 25 men. Are the victims in the right? Here, the answer is no. The only men who owe reparations are those who possess stolen goods. The other neighbors are undoubtedly justified in helping these women voluntarily, but they should not be compelled to do so.
With these principles in mind, let us now turn our attention to race-based affirmative action. Should a private institution, composed of individuals whose consciences impel them to assist certain groups, have the right to use affirmative action? Yes. Any private institution that relies on voluntary market transactions merely exercises its right to free association by adopting an affirmative action policy.
The answer is different for public institutions. In a state system, public institutions almost invariably rely on taxation, a process whereby the government dragoons innocent people into subsidizing whatever projects the majority (in a democracy) or powerful minority (in an oligarchy) fancies. Public affirmative action programs are therefore objectionable, not because affirmative action is inherently wrong, but because public affirmative action operates at the expense of non-criminal taxpayers.
Beyond that, the imprecision of race-based affirmative action weakens the program’s efficacy as a tool of corrective justice. That is because beneficiary B of race-based affirmative action does not need to demonstrate that his ancestor, A, was robbed of funds that B would have received had A not gotten robbed. Nor must the people disfavored by affirmative action possess property that rightfully belongs to affirmative action’s beneficiaries.
We must therefore reject the notion, propagated by such theorists as David Horowitz, that race-based affirmative action and similarly sweeping welfare programs “count” as reparations for slavery. Contra Horowitz’s claims, reparations “count” only when they go to the victims of crime exclusively. If all black people, poor people, single parents, or Americans qualify for “slavery reparations,” then these are not actually slavery reparations, because not all black people, poor people, single parents, or Americans today descend from slaves. Moreover, reparations for slavery, like reparations for any other crime, “count” only when tendered unconditionally. If slaves’ descendants must apply to certain colleges, achieve certain test scores, work certain jobs, maintain certain incomes, or keep a certain marital status in order to qualify for “slavery reparations,” then these are not slavery reparations either.
Authentic reparations, in both intent and effect, are straightforward: they restore stolen property to its rightful owners. Ethnicity, occupational status, educational status, and everything else do not enter the equation. A Palestinian whose parents were expelled from their land is entitled to reclaim his family’s property. A Jew whose parents were robbed by Egyptians is entitled to retrieve his family’s goods also. The same premise holds true everywhere else for everyone else. Should we demand a statute of limitation for these sorts of property claims? Not at all, for as Walter Block reminds us, “Justice is justice is justice.” With that being said, the onus is on the plaintiff to prove beyond a reasonable doubt (1) that his ancestors legitimately owned the property in question and (2) that the contemporary defendant possesses the property illicitly.
Therefore, reparations must not rely on taxation or other slipshod methods of wealth redistribution. Taking property from every American in order to subsidize reparative checks or public programs would amount to rough-and-tumble collective punishment. If we oppose state-administered collective punishment in other situations—if we believe, as we should, that it is abominable for the American government to assassinate civilians on enemy territory in Iraq, Pakistan, and Yemen—then we should oppose it here as well. Just as it is barbarous for state officials to kill innocents who live near terrorists, so too is it barbarous, albeit to a lesser degree, for state officials to seize property from civilians who live near people with stolen property.
A different type of reparations might have us reduce taxes by exempting African Americans from income taxation for a certain period of time. How about it? The gesture would be admirable, but it would go not nearly far enough as a form of “reparation.” In the first place, nobody— African-American or otherwise— should have to pay income taxes. Even if they occasionally use income tax revenue for benevolent causes, statesmen do not deserve innocent people’s income any more than occasionally benevolent thieves do. To rescind African Americans’ income tax obligation, then, would be to respect the property rights of African Americans going forward without compensating them for past injuries.
A justifiable reparations program would be appropriately backward looking, allowing nothing more and nothing less than for affected individuals to retrieve their property from its illegitimate possessors. Though this model is clearly more restrictive than the state-facilitated taxation model, it nonetheless presents clear opportunities for restitution. Descendants of the 1,250 slaves owned by J.P. Morgan Chase’s predecessor banks, for instance, could bring claims against the company now. So too could the descendants of slaves exploited by the Bank of Charleston and the Georgia Railroad and Bank Company, both of which Wachovia acquired before the extant Wells Fargo acquired Wachovia.
Other modern companies did not own slaves but still profited from slavery. Brooks Brothers, for example, sold slave clothes to masters. Might such a company have to pay reparations also?
Yes. Suppose that I steal 10 dollars from you and surreptitiously use it to buy myself a movie ticket from a local cinema. Although the cinema did not steal the 10 dollars from you, it now possesses 10 of your dollars that you did not relinquish voluntarily. That property is rightfully yours, and you should be allowed to take it back, no matter the identity of the person who now holds it. Of course, if you were to take it back, the cinema’s operator would be down ten dollars and would therefore be well within his right to sue me for buying a movie ticket with stolen money. Even if he could not find me though, he would owe you your ten dollars.
Brooks Brothers’s debt to slaves’ descendants is even more clear-cut than the cinema operator’s debt to you. Slavery is worse than mere theft, but beyond that, the cinema operator did not know that I was purchasing a ticket with stolen money, whereas Brooks Brothers knew that its slaveholding customers were purchasing attire with stolen wages. It should therefore be abundantly clear that people have legitimate claims against Brooks Brothers if they can prove that their ancestors’ masters purchased Brooks Brothers attire.
“But wait!” some might plead. “What if Brooks Brothers has donated to African-American charities in the past century? What if it has offered jobs to African Americans? Surely that counts as reparation.” Actually, it does not. A criminal who bankrolls charities and employs people still has an obligation to his victims.
We should not let other such irrelevancies distract us from the moral case for reparations. It does not matter, for instance, that some slaves’ black descendants are today wealthier than the white people who owe them reparations. A poor man who illegally possesses a rich man’s property, after all, still owes a debt to the rich man. Nor does it matter that some slave owners were black. Because a just system of restitution does not function on the basis of skin color, the heirs of black slave owners would be just as liable as the heirs of white slave owners.
It is also irrelevant that slavers, by bringing Africans to America, inadvertently gave slaves’ descendants access to lucrative American markets. Imagine, as a parallel, that a rapist illegally enters a woman’s home, strangles his victim with a necklace that he purchased, and then departs without removing it from her neck. When the victim takes her assailant to court, the rapist insists that they should “call it even” since he “gave her a necklace” in the process of raping her. Of course, this frightening logic ignores the fact that the victim never agreed to exchange her body (or anything else) for that necklace. Because the rapist unilaterally “gave” his victim a necklace outside the confines of a two-way contract, he cannot reasonably expect anything in return. The same goes for Americans who got wealthy off of slavery. Because slave traders unilaterally transported slaves to America outside the confines of a two-way contract, slaves’ descendants have no obligation to pay for their presence in America by now surrendering their right to reparations.
Although it is not quite an “irrelevancy,” the fact that American slave owners operated with the sanction of law does not undermine the case for reparations either. Law, lest we forget, is often just a tool that powerful people use to facilitate human rights abuses. It possesses no intrinsic value and deserves no knee-jerk appreciation. The law of slave owners, like the law of fascists, should here matter no more to us than barbarians’ arbitrary decrees do.
There remain intricacies to work out, but the African-American reparations idea is neither quixotic nor academic. It hews to a strict conception of property rights and meets the demands of corrective justice. Unlike collective punishment programs that run roughshod over individual rights, it takes property from select individuals and distributes it to the people whose ancestors lost it. To the extent possible, then, it gives people what they would have had if mass expropriation had not occurred.
This article originally appeared at c4ss.org.