Recent months have witnessed well organized efforts to institute multiple reparation programs to undo wrongs done to Black Americans over the tangled course of this nation’s history. These claims fail on both legal and moral grounds.
Let’s start with the legal. Reparations cannot be cured by simple legislation. Awarding them requires lawsuits brought against the proper defendants, who have a raft of substantive defenses. Thus, a suit against United States for the harms of slavery runs into the decisive objection that the antebellum federal government had limited powers, which did not include the power to either authorize, regulate, or abolish slavery in the states.
Slavery was abolished in many states from the get-go, such as those formed out of the Northwest Ordinance of 1787, Article 6, or abolished early on like Massachusetts (1783) or New York (1799-1827). But even where slavery did exist, suits for these losses rests on rocky grounds—there are defenses based on sovereign immunity, the running of the statute of limitations, and the bar of prior litigation. And the issue of suit becomes more fraught where efforts are made to sue state governments, as in California, where slavery had never been practiced. The exhaustive California Reparations Report offers such a one-sided view of history from 1850 onward—all its authors and researchers were Black—that its minimum recommendation of $800 billion in reparations, in a state running a $25 billion budget deficit for 2023 should be regarded dead on arrival.
The far better approach rests on the moral claim, which thinks of the reparations program as ex gratia that does not even attempt to calculate, with interest, compensation for asserted grievances. The model U.S. program is that for some $20,000 in compensation in 1988, payable to those Japanese individuals who had been held in internment camps in mid-1942 until late 1944, long after the risk of any Japanese invasion on the West Coast had passed. These small sums, coupled with a deeply felt official government apology, were intended to acknowledge mistakes, and heal wounds from a tragic episode. The recipients were easy to identify; the list did not include spouses, children, or other relatives who had derivative grievance.
The second successful reparations program addressed the far greater wrong of the Nazi extermination program against European Jewry. Again, compensation was made only to those individuals who survived the camps, supplemented by large sums to the state of Israel and other programs. But in toto, sums have amounted to about $86.8 billion from 1945 to 2018, starting at immediate aftermath of the war.
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By these historical standards, the window of reparations for slavery is closed. It is slammed shut for California’s program, whose complex history attribute diffuse societal harms to slavery. The causation does not work, when illegitimacy rates have soared for Black and white people since (at the dawn of the civil rights era) 1965—24 percent of Black infants and 3.1 percent white; by 1990 the numbers were 64 percent Black, 18 percent white—notwithstanding the vast increase of welfare and affirmative action programs during that same period. And it doesn’t work for the decline in standardized test scores, which dropped sharply between 1963 and 1982, Similarly the increased spread between white and Black unemployment during this period can’t be attributable to slavery. Ironically, modern progressive reforms leading to higher barriers to entry—not the supposed legacy of slavery—are the culprits.
Massive Black reparations programs do not square with this data. The earlier, sensible precedents cannot be used to strongarm through legislation a program that seeks to transfer not just billions, but according to legislation introduced by Representative Cori Bush (D-Mo.), but $14 trillion in Black reparations to cure, not just slavery, but also to eliminate “a racial wealth gap” for which slavery or discrimination is, if relevant at all, at most one of many causes.
It is hard to imagine a more divisive program. We do not know, for starters, who counts as a descendant of slaves, given the 160 years of intermarriage that blurs the categories with white people and immigrant populations. Nor can anyone identify just who ought to pay the back-breaking taxes? Are Black people exempt from payment? Or what other racial and ethnic groups can line up for compensation? Does the list include all or some Native Americans, Latinos, Catholic Jews, Chinese? No system of ex gratia payments should inflict needless harm of innocent individuals, or sow long-term discord that will intensify racial conflicts that need desperately to be reduced. Nor in light of the recent Supreme Court decision involving Harvard College and the University North Carolina does any explicit race-based form of compensation based on such a flimsy argument have a prayer of success. For the sake of the nation, the reparations movement should end now; race-neutral problems better address the problems of today.
Richard A. Epstein is the Laurence A. Tisch professor of law at NYU Law School, the Peter and Kirsten senior fellow, The Hoover Institution, and the James Parker Hall distinguished service professor of law, and senior lecturer, the University of Chicago. He has extensively written on many legal topics including race relations. His books include Takings (1985), Forbidden Grounds: The Case Against Employment Discrimination Laws (1992), and Simple Rules for a Complex World (1995).
The views expressed in this article are the writer’s own.