Jermaine McCalpin

Race, Reparations and Rawls: Defending the Morality of Black Reparations

And a Truth Commission

Jermaine McCalpin

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Jermaine McCalpin

Introduction

The issue of reparations for blacks in America has been at times both a lively,

animated as well as myopic debate. Opponents and supporters alike have made the

reparations agenda too legalistic excluding or underemphasizing the morality of the

claims1; further, they have failed to challenge or support reparations on a philosophical

level. If political philosophy can develop complex hypothetical worlds premised on veils,

states of nature and man etc2, then why not use it to abstract an agreed upon principle

(and policy) of reparations from a position of ignorance of one's race and its position in

race relations. In other words it is moot to ask; would whites (who in general do not

support a program of black reparations), in an imagined world, support reparations if

they didn't know that they would be white or that whites would occupy a position of

dominance in America? Further, reparations has not been placed in a larger context I

argue to incorporate it within an overall project of a truth commission for the United

States. I believe that reparations seem more defensible if it is a part of a greater quest for

[official] acknowledgement, symbolic collective culpability, rectification and material

compensation.

My central proposition in the paper is in the form of a syllogism: if justice is

acting on the truth and the truth is that blacks had been seriously mistreated and

undermined, raped and robbed by a system of slavery and discrimination and we fail to

act on the truth, then that is injustice. The palliative (if even not the panacea) is a policy

of reparations. I will develop this first by using the Rawlsian original position and veil of

ignorance to abstract (reparations) its moral foundations and then to use this to model an

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actual truth commission for addressing reparations. In doing so I will also highlight the

weaknesses of a Rawlsian framework in addressing ‘silent but salient issues’ such as

reparations.

I am fully mindful of the difficulties encountered by reparations especially

directed entirely towards descendants rather than the wronged themselves. The clarion

call for reparations must not be viewed as an indictment of individual whites but rather of

a collective white supremacy manifested in the system of slavery, domination, and Jim

Crow etc3. There is something to be said however about whites that feel they had nothing

to do with slavery, the legacies of slavery continue to haunt America's present and

therefore it can only be extirpated by rectifying the past. Developing reparations present a

long neglected opportunity to do this. An invisible but potent collective guilt needs to be

expunged! 4

More fundamentally this paper seeks to argue that reparations are a moral right owed to

blacks (and Native Americans) by virtue of robbing them of their humanity, possessions

and potential. This injustice is contemporarily manifested in the recalcitrance and

tokenism on issues of rectifying the legacies of slavery and Native American

extermination.

I examine the possible philosophical support for reparations behind a Rawlsian

veil of ignorance, essentially attempting to see if in a hypothetical world there would be

opponents of reparations as a preemptive policy to rectify injustices founded on race

especially because the individuals behind the veil would not know their race. The

profound utility of the original position and the veil is to make a good case that there is

nothing intrinsically wrong with claims for reparations especially if no one knew to what

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race they would belong.5 I then move to make a case for reparations using the

framework of a truth commission abstracted from the veil of ignorance that evinces a

practical program of reparations for America. This context of reparations as a feature of

a truth commission is a better corrective measure to slavery and its effects than singular

reparation proposals. This may sound irrelevant because we all know that slavery

occurred. But the goal of a truth commission goes beyond this universal knowledge and

focuses on an official acknowledgement as well as policies of compensation (in monetary

and non-monetary forms).

I conclude this paper by examining some of the serious difficulties encountered

with reparations of any kind especially one where victims are not clearly identifiable.

This is not meant however to overthrow the power and imperative of reparations.

The Veil of Ignorance and Original Position

Rawls uses two analytic tools, the original position and the veil of ignorance, to

gain philosophical leverage for his theory of justice and they are at once both novel and

problematic. Nonetheless I intend to outline their basic features, assumptions and

weaknesses and then to rework them to make them amenable to an argument for

reparations. The basis of Rawls’ theory of justice is the original position, which is used to

account for, and “to be the condition under which to set up a fair procedure so that any

principle agreed to will be just”. 6 It essentially outlines how at some hypothetical time,

agreement is reached on the principles and procedure of justice from a starting point

where representatives meet (behind a veil of ignorance) to iron out what the well-ordered

society is to look like. The theory revolves around the overall assumption that we all have

an intuitive notion of justice.

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For Rawls:

The original position is a purely hypothetical situation. Nothing resembling it need ever take place, although we can deliberately follow the constraints it expresses, simulate the reflections of the parties…it tries to account for our moral judgment and helps to explain our having a sense of justice.7

There are six central features of the original position that require some elucidation

before I move to the fulcrum of my argument.

The first is that of unconditionality – According to Rawls, it is incumbent and it is

“desirable to characterize the original position so that the parties are to choose principles

that hold unconditionally whatever the circumstances”. 8 In other words the principles are

therefore agreed upon but also agreed to apply to all circumstances. But this prompts a

fundamental question, if these principles hold for all circumstances, why then shouldn’t

they hold for all times? As we will see with the next feature of the original position, the

parties represent only the generation following them. This also brings into suspicion the

fact that the original position and its progeny (the veil of ignorance) can be resorted to

any time following the original abstraction. Why not make it, as I intend to, a one time

original situation where once the principles are ironed out, we never return to that

position (at least not for a few generations)?

The second feature is what I call the inter-generational proviso - Although this

proviso clearly outlines sympathy for posterity, it is limited in that it only explicitly

accounts for the next generation. In the original position, each person should “care about

the well-being of some of those in the next generation. Moreover…. the interests of all

are looked after and given the veil of ignorance, the whole strand is tied together”. 9 My

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problem with this idea of inter-generational well- being is that, if the principles of justice

laid down by parties in the original position are set, then I argue, why not make the well –

being consideration trans-generational rather than inter-generational? The parties in the

Rawlsian original position are not only veiled they have very limited clairvoyance. I think

that the agreement made should hold and transcend more than two generations! (I will

return to this point in a subsequent section of the paper).

Third, there is moral equality - Rightfully so Rawls contends “if the original

position is to yield agreements that are just then the parties must be fairly situated and

treated equally as moral persons”. 10 This is one of the simple but profound contentions

of Rawls’ theory of justice. Moral equality guarantees that all parties had a say in the

principles of justice to be negotiated and agreed upon. It also means that because they are

all equal in moral capacity (and ability) that they will be reasonable in their suggestions

as representatives of individuals in society.

The fourth feature is that of rationality - The parties to the original position are

rational to the extent that they take “effective means to ends with unified expectations

and objective interpretation of probability”. 11 This means that they are fully aware of their

lack of particular (specific) knowledge but come to the negotiation of justice with the

goal of maximizing their ends without fully knowing all of them; however they know

their primary goods.

Closely related to the above is the idea of mutual disinterestedness or limited

altruism - “The persons in the original position try to acknowledge principles which

advance their system of ends as far as possible”. 12 So everyone has ends that they want to

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advance but they know that this is limited to the extent that they do not fully know their

circumstances as well as are mindful of the fact that others have dissimilar ends (goods).

The final and most important feature of the original position is that of the veil of

ignorance - I would argue that this feature functions as the kind of axis for the theory of

justice. According to Bruce Ackerman the veil of ignorance “compels rational contractors

to adopt a strongly egalitarian conception of justice, concerned with maximizing the

interest of the worst off class (and as I will argue, race)”. 13 So from all indication the

original position is premised on equality as well as fairness.

More than that the veil is the hypothetical device that the parties to the original

position are behind, “they do not know how the various alternatives will affect their

particular case and they are obliged to evaluate principles solely on the basis of the

general considerations”. 14 The veil also helps to guarantee that the information is not

only relevant but always the same.15 The assumption of the veil of ignorance is really that

the parties are deprived of any knowledge of their place in society. 16 Furthermore Rawls

argues that the real utility of the veil is that it “makes possible a unanimous choice of a

particular conception of justice. Without these limitations on knowledge, the bargaining

problem of the original position would be hopelessly complicated”. 17 And although

parties are encumbered by limited knowledge there is still an availability of choice. The

critical assumption is that free and equal rational persons behind the veil choose to

develop heteronomous rather than autonomous principles of justice.18 To this is to be

added Sandel’s assertion that the “principles they (parties) choose are just in virtue of

their choosing them, the principle of justice are the products of choice.”19

Objections

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Although I intend to borrow Rawls’ ideas of the veil of ignorance and the original

position there are some serious objections to them. In the first place the contention is

made as to whether the original position achieves genuine detachment from existing

wants and desires.20 Sandel’s main issue with the Rawlsian original position is that he

thinks that it is biased in favor of particular conceptions of the good and therefore in

contradiction to others. But more adroitly, that it introduces assumptions that are not

universally shared (Western liberal bourgeois life plans he calls them). These products he

says are then the result of prevailing values after all.21 Contrariwise to the above objection

is that the original position achieves too much detachment from human circumstances

and that the initial situation it describes is too abstract.22 The real issue is that the

abstract world Rawls engineers has little or no contingency and can therefore not account

for motivations. As much as this seems like a justified point, in another sense that is the

unavoidable crucible of moral philosophy. So although I take Sandel’s point the problem

seems inevitable.

Third, there is the objection as to whether the veil of ignorance serves the analytic

purposes well or if it could be replaced with another tool. Ackerman has one in mind, he

argues that a veil imposes unnecessary burdens and that a rival device of representation

that substitutes neutrality for the veil is much better.23 Essentially the objection is that

more can be abstracted from a position of neutrality than from one of ignorance.

Finally and maybe more critically is the contention that, what is to be said about a

justice that is the outcome of negotiations made from a position behind a veil of

ignorance and not full knowledge. The issue I would argue is that the kind of justice

seems weak if it is developed with too much information excluded. I am prepared to

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concede however that even decisions made in actual societies agreeing upon principles of

justice are still not made from full knowledge (as this is untenable). But this situation is

less problematic than one with too much information unknown. I now turn my attention

to reworking the veil of ignorance with some important modifications to fit a proposal for

reparations.

Reparations behind the Veil of Ignorance

The veil of ignorance as an analytic tool or thought experiment for my purposes

starts with the original position that there are individuals who convene to decide on

preemptive policies of justice especially reparations, knowing at least that racial injustice

is very likely but not knowing who will be affected by it. My veil differs from Rawls’ on

some key dimensions.

First, my veil and original position is meant to be a one-time occurrence. The

assumption I make is that once the principles are laid down they are to remain

unchanging for at least a few generations. I would be bold enough to say at least 6

generations (180 years) because that seems to represent a reasonable enough time-

horizon to get rid of a critical injustice like slavery, racism and their resultant effects. I

am also making my original position comprised of the individuals themselves and not

representatives, in other words I use the idea of the veil as a starting point to society that

has everyone deliberating on how justice is to be modeled. The next point will serve to

clarify possible confusion here.

Third, I want to make my veil and original position historical, to the extent I want

to use an actual historical starting point and to see what kind of society and principles

would be agreed upon behind a veil of ignorance. My starting point would be (no

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surprise) pre 1776 America. I will call this the original colony or Reparatia. So my

original position begins here and essentially is made up of all kinds of individuals that

have general knowledge, that is they know that there exists differences of race, class etc

beyond the veil but do not know which one specifically they shall be a part of. They are

therefore about to deliberate to found America, fully and universally knowledgeable that

racial injustice awaits some but not knowing whom it awaits. Therefore an inevitable

principle they must agree on is a corrective policy of reparations. It is also to be assumed

that none of the persons in the original colony (Reparatia) know when this racial injustice

will occur. This may seem to make the answer to whether actual present white

Americans (but not knowing there are whites in a raceless original position) would agree

to reparations if they didn’t know they would be white. However I insert a necessary

problematizer, would persons behind a racial veil of ignorance still support a policy of

reparations if also not knowing whether their (earned and inherited) wealth may be

subject to reparations claims? 24 I think this then makes my imagined world even more

problematic than when I first imagined it.

There is no simple solution to this thought experiment and it often becomes

difficult to abstract without being biased because of “full” knowledge about the actual

situation. So to add to the lack of knowledge about whether one would be black, white or

of other races, victim or offender we add whether reparation claims would benefit (give)

or disadvantage (take from) the individual. So the founding mothers and fathers of

America have these problems to deliberate on. My theory of the original position also

assumes that individuals are not risk averse and so may take calculated risks if the gains

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are high (even if the losses are great). However I am not sure whether one would risk

being the victim of racial injustice.

But once this pre-1776 meeting concludes the agreements made there will serve

to found America and its institutions, and there is no option of return to them. So

whatever they decide on will affect them (negatively or positively) and their progeny for

generations to come. The only opt out clause is if after 15 generations society decides to

renegotiate another agreement on justice. So to move from Reparatia there has to be

some agreement reached on the principles of justice and especially about what a policy of

reparations would look like beyond the veil.

Before I proceed to outline what society founded on reparations, as a feature of

justice will look like, I need to define these terms that have been floating around the

argument. Let me begin with reparations. This is one of the most problematic words to

have graced the mid to late 20th century’s landscape. It is often misunderstood, misused

and then ultimately dismissed frankly because it has been ill defined. Reparations can be

defined as “acts or processes of repairing or the condition of being repaired, the act or

process of making amends; expiation, something done or paid to compensate or make

amends”. 25 Fundamentally the contention with the word is that given the controversy of

reparations for blacks and the realization of reparations for Japanese American and Jews

is that it is just about money.

Reparations are a duty or obligation and therefore not an incidental idea,

following from the idea of developing an obligation-based theory, one can argue that

when harm has been committed, it is obligatory on the part of society or individuals to

compensate for the harm done. Some argue in a less absolute way that reparations is one

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of the prima facie duties. W. David Ross develops an argument outlining that there are

seven prima facie duties that we can examine.26 Moral rules conflict with one another but

the more stringent one should take place. In essence a prima facie duty is really a

conditional duty. The prima facie duty of reparations is the duty to make up for the

injuries one has done to others, but to this can be added that even if we were not the

original perpetrators it is still expected to hold true. This prima facie duty rests on a

previous wrongful act. The idea of duty in prima facie duty is confusing to say the least.

Ross is self-conscious of this. Rather than being understood as duties, they are really

guidelines, not unconditional obligations. For my purposes however I only am concerned

with the idea that reparations should be used when injury had been done. To this I add, in

ways beyond Ross’s claim, that reparations ought to be seen as duty in the strictest sense,

the committal of the previous wrongful act is the only justification necessary for the

obligation to correct it to be obligatory.

Reparations are about payment (in monetary and non-monetary terms) for

damages to persons injured by racial and other discrimination. The question that begs a

response then is who should pay for these damages caused by racial discrimination? The

preliminary answer I will offer is that if there are no clear or traceable individuals and

groups, it is the moral obligation of the state (one it shouldn’t renege on) to compensate

violated parties. It is also the case we cannot deny that monetary reparations is a

meaningful way to look at compensation for historical wrong but reparations can also be

collective and symbolic, in the forms of monuments, the renaming of buildings, proactive

social and economic programs geared towards restoring lost dignity.27 But before one then

runs to say, all these things have been done, there is one dimension that is missing, I will

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hint at it, there has not been an official (state-sanctioned and funded) commission that has

acknowledged and chronicled the atrocity and inhumanity of slavery as well as to

highlight culpability on the various levels of state, society and private individuals.

Let me also quickly move to define justice so I can return to the outline for

reparations made in Reparatia. I started off the paper with the idea that justice is acting on

or conformity to the truth, I won’t get into the schism of what is truth. I will speak of

truth with a small t. I will also remind the reader that we have an intuitive notion of

justice and though we may not agree on its provisions, we all seek to do what is just

(premised on equality and fairness). Added to this is that justice is to be defined by the

dimensions that it is comprised of. These dimensions are not necessarily mutually

exclusive or exhaustive but some are stressed more than others in differing contexts.

1. Justice as retribution - this dimension is literally about repayment but in terms that

resemble the way in which the original act of violation was committed. In other

words, retributive justice is about desert, giving to someone what he or she is due

(this is however for ill). In other ways it may focus on punishment, which may fit

the crime, or if it can’t be modified to fit the crime it must fit the felt effects of the

original offense.

2. Justice as restoration - this dimension of justice is “concerned not so much with

punishment as with correcting imbalances…”28 It is therefore meant to focus both

on the victim and the violator but it is unclear as to who gets more attention from

justice. Justice as restoration is therefore more about the ideal of healing and

reconciliation.

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3. Justice as non-repetition – One of the key parts of justice is that at its heart it is

about securing against a recurrence of the original offense. Non-repetition is

important because it means that all will be done to avoid the wrong that slavery

and racial discrimination represented.

4. Justice as compensation – in a more concrete sense, justice has to be material.

Compensation does not have to (but often) take monetary forms. If the wrong can

be identified then restoration to the victims may include making up for the losses

(that are often economic) with like economic measures. It also includes policies of

(re) distribution if the offense meant the unfair acquisition of property or other

possessions.

5. Justice as Acknowledgement or Recognition- This dimension is critical to many

justice claims. It is important that if a wrong has been done that one of the first

(logical) steps is to acknowledge its occurrence and then to recognize that

something needs to be done to redress the imbalance caused by the wrong. This

acknowledgement may take the form of an official, chronicled report (such as a

truth commission, to which I turn later). To this one may add the accountability

dimension. Who is to be blamed, or made to stand culpability for the wrong done.

I hasten to say however that it does not mean that the person(s) or institutions that

take responsibility for the wrong mean by that extension they committed the

wrong (they may not have been around, but rather have inherited the wrong).

However it may mean that they have inherited the obligation to make amends of

the wrong, which is what the duty of reparations suggests.

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So in effect these are the critical dimensions of justice and because of my

introductory maxim (justice is acting on the truth), the second, fourth and fifth

dimensions serve my purposes best. I would argue that the claims of reparations have

to do with these three dimensions, [truth, compensation and acknowledgement) and

not mistakenly just about money. I return to outlining the agreement made in

Reparatia about what reparations would look like in the post-original colony. I will

focus narrowly on reparations behind the veil because I think in one way or another

all the dimensions highlighted speaks to the issue of reparations.

Agreement on Reparations as Corrective Policy

In the first place the justice modeled behind the veil of ignorance is imperfect;

however it is good enough to constitute the basis of society because rational and

reasonable persons develop it. As has been said before now, the policy of reparations

that could be agreed on is one that is inherently preemptive to the extent that it factors

in the inevitability of injustice and unjust practices. To this dimension of preemption I

would reiterate (using Rawls’s proviso) that the parties have an intuitive notion of

justice, it is the principles and procedures they need to come to some agreement on.

Second, reparations are the policy of choice to rectify racial injustice and should

consist of among other things official acknowledgement of the injustice, chronicling

the injustice for posterity, material compensation for the violated and their

generations (up to six generations).

Thirdly, reparations are a moral right that therefore has priority over respective

social goods, that is the self-interested wants and desires of each person (and their

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progeny) behind the veil. In other words the right is ethically prior and when the good

and the right come into competition, the right always triumphs.29 Sandel’s contrast

between the right and the good is helpful in understanding this point. He argues “the

good, whether individual or collective, includes as ingredients various contingencies

which are arbitrary from a moral point of view, while the right is free from

arbitrariness”. 30 So the real issue is that the right has been agreed upon behind the veil

while the good (according to Rawls, the satisfaction of rational desires) was prior in

terms of order and not in terms of importance because is preceded the trip behind the

veil. This does not mean however that the imperative of reparations may not result in

a sacrifice of other helpful policies in society, such as resources for health, jobs etc.

Fourth, the expressed aim of all policies of reparations is not to ascribe blame but

rather responsibility with an end to reaching (if tenable) the ideal of reconciliation.

The idea here is that racial injustice divides us and therefore its resolution should not

widen the chasm but build a bridge across it.

Finally, once the truth of an (racial) injustice can be proven and established,

justice is acting on this knowledge. Action here is to be defined as taking all measures

to restore the actual or potential loss and securing against it recurring.

The basis for all decisions made behind the veil in Reparatia is consensus and not

necessarily unanimity. And even if person(s) do not agree with the provisions or

policy of reparations they should not be ostracized or neglected because they

disagreed with the policy. And once the veil is lifted that person is subject and liable

to both the claims and obligations for reparations. It is also incumbent to answer the

question as to who is responsible for initiating, funding and enacting a policy of

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reparations. The individuals behind the veil of ignorance should come to agreement

on this. The agreement could look something like this: if offenders or violators be

they individuals, groups or institutions perpetrate racial injustice and discrimination

then they should fund and support reparations.

If the spiral of responsibility and culpability makes it too difficult to identify

offenders then the state should see it as its moral obligation to fund and acknowledge

the need for reparations. Corporations and other groups must also be made to join this

effort. Because the basis for reparations would be well known (having been passed on

through generations until it is necessary to use it), not only the directly offended

should be in support of reparations.

So after laying down the principles of reparations I now turn to the discussion of

the kind of institution that would best serve a policy of reparations beyond the veil of

ignorance. I would argue that the parties behind the veil would agree on and prefer an

institution that has a broader rather than a parochial platform. It must be an institution

that will address both the imperative of truth, justice and more optimistically

reconciliation, the latter being more of an ideal rather than a programmatic goal. I

implore the reader to therefore fully judge how close the idea of a truth commission

comes to the intuitive notion of justice that all parties to the reparations agreement

possess.

Given the multifaceted nature of reparations, the best institution that can model

dealing with the problem of racial injustice is a truth commission. It is to this idea and

model I now turn. Fully aware that its usage has been in actual societies making a

transition from authoritarianism to a democratic society and of them none has seen a

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truth commission developed voluntarily by those that are at fault or responsible for

the injustices. This makes my proposal for an American Truth and Reparations

Commission seems laughable. But I think given the context of a moral obligation,

such a commission would represent the moral reflections of a society that sees the

need to engage and expunge the evils of its past.

Beyond the Veil of Ignorance: The Case of a Truth Commission

To propose a truth commission for America has to be well thought out and even

then its existence and work may effect great chasms and divisions as to what is to be

presented as truth but more so what is to be done with or about the truth. My basic

argument is that apart from representing a possible actual social institution to help

address the effect of racial injustice, a truth commission is a potential moral break from

America’s racist and exclusivist past. And more than encapsulate the clarion call for

reparations it would establish a historical document one that acknowledges its wrongs, to

present to the world. More so contrary to what some may feel the “primary reason for

asking for reparations is not intrinsically about the money, the money is secondary”. 31

It is opportune for me then to give a definition and some context of what a truth

commission is. At its simplest a truth commission is “an official body that investigates

within a limited time frame, historical wrongs meted out to groups within (or without) a

society, wrongs such as slavery, that occurred over a specific period of time with an end

to establishing a comprehensive record of the past as well as to suggest measures of

rectification”. 32 This is a much-modified definition designed to fit the American context.

Let me state unequivocally however that a truth commission has never been used in the

context in which I am proposing it. There are a few contextual differences that make the

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proposal for the American Truth and Reparations Commission (which is the name I

propose) precedent setting. First, truth commissions have only been used in societies in

transition from authoritarianism to democracy of some sort. As much as America’s

historical treatment of its racial minorities has been bad this is not grounds to call it an

authoritarian regime. Second, an American Truth and Reparations Commission (hereafter

ATRC) even if it is a compromise solution between the federal government and others

constituents, it is not the same as the way the South African TRC was a compromise

between the new ANC regime and the apartheid regime. The division I argue can and

would not be as lucid. Third, the international community has not done much in way of

commenting on the evils of slavery and its long term effects. Rather treating the

American slavery experience as a national matter, due in no small part to America’s

global power position. In South Africa, as much as the National Party government tried to

make apartheid an internal policy of discrimination, it was felt to transcend such

limitations at least to the international community. Fourth, unlike the Chilean Truth

Commission and hopefully like the South African one, an ATRC would have to name

names. However unlike all previous commissions, institutions, federal governments and

other such groups rather than individuals would be the principal offenders. Further unlike

other societies that have used truth commissions the object and subject of an ATRC

would stretch farther back into history than any other before it and arguably after it. The

longest frame of reference for any previous commission is 34 years for the South African

TRC. An ATRC would stretch possibly as far back as 1619 or at least 1783. Finally some

would argue most societies (with the possible exception of South Africa) have used truth

commission in contexts where the polity was not founded on these exclusivistic platforms

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that now come up for mention in terms of rectifying them, exclusive platforms such as

slavery is what I have in mind.

These contextual differences beside I turn to develop my model of what an ATRC

would look like, its mandate, possible commissioners, committees, powers etc. Even the

very founding of the ATRC is critical to its role in helping to address racial injustice in

America.

Founding – I propose that this ATRC be founded by the passing of a Bill in Congress

entitled the National Truth and Reparation Bill. And should have as its expressed goal to

completely examine the institution of slavery, suggestions and commitments to rectify

this injustice and contemporary discrimination and in that regard to found an ATRC to

work on this task. After the passing and approval of such a Bill an ATRC would be

formed.

Commissioners – There should be at least 22 commissioners drawn from all sectors of

society but should have no explicit ties to the government or its agencies. The

composition would be as follows: 6 Native Americans, 5 African Americans, 4 Hispanic

Americans and 7 Caucasian Americans. The rationale is that the Native Americans have a

longer standing claim to reparations and white Americans and their founding institutions

would be the site of reparation claims, and African Americans who were explicitly

dehumanized and robbed of potential and wealth, and Hispanic Americans as a minority

(though not constituting a race) who have a formidable claim to discrimination. These 22

commissioners would be suggested by the public over a 6-month period and then would

be appointed by the President with approval from Congress. The assumption here is that

there is political will to see this founding process move as quickly as possible. These

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commissioners should come from all sectors of non-governmental organizations;

churches, professional and ethnic associations etc.

Mandate - The mandate to be given to the ATRC should be concerned with the

Commission collecting information over a period of four years, having access to

classified and rare documents that have pieces of the nation’s history enmeshed in them.

The Commission should have regulated but legal access to Congressional Papers. Their

frame of reference is from 1783 at the founding of the United States. This should go up

until 1991 when the latest civil rights act was passed. The report may need a further three

years to compile (for a total of 7 years). The central purpose of the ATRC would be to

exhume as complete as possible a picture of America’s past, recording the institutions

and policies of racial injustice as well as to make suggestions and recommendations on

appropriate corrective and reparative policies to redress these historical wrongs. One may

say that seven years is a long time, but that is not so in comparison to how long we have

already waited for anything resembling an official acknowledgement of America’s past

and its effects on the present and future. After the Report has been submitted to Congress

the ATRC would cease to be a standing body. The recommendations would then be

tabled and appropriate steps taken to implement them.

Committees - The ATRC would divide its work among four major committees:

1). Historical Clarification and Rectification Committee (HCRC) would be charged with

as best as possible ensuring that the Final Document is as close to the real history of the

US as possible. It is not charged with however finding an unchallengeable truth but one

that is more than functional, fully knowledgeable that the truth is often uncomfortable to

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rehearse especially given America’s past. This committee is to ensure and oversee their

work of the other committees like an Oversight Committee to ensure that all their claims

and suggestion are plausible and actual. The HCRC must also hear the testimonies and

hold hearings for persons who may serve as resources for the committee’s work as well

as those of individuals representing culpable institutions.

2). Symbolic Reparations Committee – they would be charged with making suggestions

as to the possible ways in which the US can make symbolic moves to not only preserve

the reality of the evils of slavery and discrimination for posterity but to also elevate the

struggle against this institution and the persons and institutions that opposed it. They

should be responsible for not only suggesting monuments, days of commemoration for

slavery and other such timelines but also the naming or renaming of places, etc that

would acknowledged the persons who struggled against slavery and racial discrimination.

3). Economic Reparations Committee – Inevitably this committee would have the most

difficult job that of making recommendations for if and how material compensation

should be allotted to historically marginalized groups and their progeny. They would

have to propose how to finance such effort: who is to pay and who is to be paid, how

much and for how long etc. I would however argue that economic reparations are not that

problematic if one justifies it on moral rather than just legalistic grounds. Even that

however may be difficult to do.

4. Finally an Institutional Liability Committee – This may have overlapping functions

with the previous committees, but is explicitly responsible for naming names. That is

identifying largely institutions still extant or traceable that supported (indirectly or

otherwise) slavery. The real difficulty is whether governmental organizations should be a

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part of this inquest and I would argue yes they should be subject to it. Other societal

organizations, schools, churches etc should also be subject to its liability claims.

Universities long argued to have been funded by the slave trade should prepare for a

possible suggestion of creating avenues or reserved places for qualified but

underprivileged members of minority racial groups. The expressed aim of the ILC is to

create some spiral of responsibility. As much as the ethic of the ATRC and any other

such body is creating responsibility for past injustices, it should not abrogate the liability

dimension.

With these organs and committees it is hoped that the ATRC would accomplish

its role to make a complete as possible a record of the past. The implementation of these

suggestions will most certainly depend on the political will of the government and other

institutions. The first place to start is to look at some of the applicable lessons from

especially the South African Commission.

Lessons

1. Truth will be highly contested and the final product won’t satisfy everyone’s idea

of truth, so the ATRC and America would have to settle for an official truth. This

is what the documented report would represent.

2. If the long-term goal is reconciliation and a united state, then restorative and less

if any retributive idea of justice is best.

3. Accountability and Culpability should go beyond the legalistic definition of guilt,

which necessitates punishment and focus rather on the collective responsibility

and to make amends of the wrong done in whatever ways necessary and possible.

4. That justice can’t focus too narrowly on just desert of both offender and offended.

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5. The real worth of the truth and reparations process is that it creates distance or

even a beak with the ignoble past. When we look to South Africa that is essentially

what the TRC represented.33

Limitations

The inherent limitation is that given the fact that truth commissions are rarely by

imposition, it means that they are creatures of compromise and therefore function as that.

Second, truth commissions normally have such short reporting times to document such

large tomes of history; they may and will exclude justifiably important information.

Third, they normally only have the power of report and recommendation but never that of

implementation. Finally the political constraints, lack of resources and restricted access to

information may also thwart its efforts.34 However amidst all this I persist in my defense

of a truth commission as the actual social institution to address the policy of reparations

agreed on behind the veil. In actual terms however it is useful in that it will both serve the

purposes of establishing the truth as well as recommending reparations and

acknowledgement in such a way that goes beyond the parochial proposals for economic

reparations. To this I would add it is moral choice with high premium on it.

Having given an outline of a theory of reparations agreed on behind a veil of

ignorance and then to sketch a model of what it may look like in real terms, I move to

discuss some of the unresolved issues surrounding reparations that couldn’t be ironed out

behind the veil but that need sorting out beyond the veil. And arguably my proposal for a

truth commission may have simplified or ignored them. Most of the contention as my

readers should imagine centers on the economic aspect of reparations.

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Problems with Reparations

In a fundamental way all of the issues surrounding reparations at their core are

preoccupied with the problem of indeterminacy. I plan to itemize these issues and my

responses in return.

a. Who is to pay? The opponents of economic reparations often focus on the starting

problem as to how we are to identify the debtors (offenders). They often argue

that both those that enslaved and were enslaved have long died and therefore

claims for reparations are too anachronistic. My response to this is, even if both

the original offender and the offended are dead, the legacy and institution

continue to frame and influence American society and therefore something needs

to be done in order to rectify this past. More concretely if we create a hierarchy of

responsibility, as I have been suggesting, the founding institutions, organizations,

banks, trust companies etc are to fund the reparation payments. If the problem

however centers on the reality that all these offenders are not clearly identifiable

and traceable then the moral obligation falls on the federal government to provide

most of the money for repayments. The main quasi-legal problem with this above

issue is that only individuals or collectives should be entitled to reparations only if

they were the ones to whom the injustice was done. Likewise only perpetrators

should be made to pay. This is called the Exclusion Principle. (See fn 36)

b. Who is to be paid? (Offended). This is a real and difficult problem to address and

our abstraction behind the veil did not and I argue could not model for this issue

in actual society. The problem is one of eligibility, which functions on two levels:

1). Are all African American blacks to be the recipients of reparations and if so,

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what about persons of mixed (African and other) ancestry, are they also eligible

and on what grounds would they be so? Some authors have suggested

genealogical research to trace ones slave ancestry. 35 However the realistic

concession is that it would be extremely difficult to trace such ancestries because

often times not every good record were kept of slaves and their descendants. One

possible but problematic way out of this would be to base these claims on self-

identification first with the condition of traceable African American genealogy

(even with mixed ancestry). 2). The second level of eligibility is whether or not

wealthy and successful blacks should receive reparations. This is a formidable

issue but one that need not cumber us for the reason that yes we are fully aware

that if every black (African American) person receives reparations, it may do

some more good than others especially those who already are successful.

The issue is that of balancing over inclusion with under inclusion, ensuring that

everyone receives something. But I would hasten to make the argument that

reparations are fundamentally a moral obligation and therefore intrinsically has

nothing to do with the wealth of some of the recipients if all the recipients are not

wealthy. However like the first eligibility problem, this may also be solved through

self-identification, if persons do not feel the need to claim such reparations then that

is fine. However, because it is a moral obligation (agreed on from behind the veil) it

is less about just desert and meritocracy and more about an entitlement of all blacks

based on the reality of the historical harm.36 Reparations therefore is to raise the level

of blacks who have been unrecognized to a position of parity within the general

(American) as well as their specific communities. The social and economic power

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that whites have is not based on some moral desert but on historical circumstances

etc.

c. What is the wrong done (Offense)? On many levels this should be the most

uncontroversial dimension. However many opponents in the contemporary argue

that although slavery happened they didn’t make it happen and therefore why

should they pay for a wrong they didn’t commit. They could not have been more

in error! Something has to be said about what I would call transgenerational

accountability. And if I may use a biblical truth, the “wrongs of the fathers (and

mothers) impact upon the children for three and four generations”. 37

Fundamentally the passage means stand more than just to acknowledge the

wrongs that our ancestors' commit we are sometimes made to stand their

consequences; it is I would argue also about taking responsibility. The idea of

transgenerational justice is to represent the reality that each generation has a

responsibility to the present but also to future but especially to past generations.

Neither the past nor future generations have claims to rights (as only living things

can) but there is nonetheless an obligation to respond to historical injustice and to

secure the future against it. Inheritance therefore isn’t just about wealth it is also

about responsibility. If institutions founded, profited and were inherited with slave

wealth then they should be subject to reparation claims (remember the veil!).

Moreover responsibility should not only fall on perpetrators but also beneficiaries

of the violation.

d. What is the amount? Some facetiously ask how much is to be paid in order to

atone for the sins of slavery and racial discrimination. I am aware that to put a

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cost on the loss of humanity and recognition and not just economic potential is

inevitably weak, however I think that some matrix can be developed to calculate

the actual and potential loss of blacks because of slavery, and it was done for the

Japanese Americans and the Jews. Randall Robinson’s “The Debt: What America

Owes to Blacks”, represents a formidable project at arriving at a calculated figure

as well as the debt in non-monetary terms.38

e. When is enough payment made? How many generations before the balance are

secured? It is hard to tell but I would be quick to say that the effects of slavery

abolished in 1865 is still felt today and so if a policy of reparations were to begin

now (2002 or not long thereafter) it should be expected to equally take the over 4

generations (as from abolition until now). I would say depending on the program

for reparations they should take say at least until 2075 before a balance in

economic and terms are near possible. For as long as blacks and others have been

made to suffer they should be recompensed with like time. (I speak not of

retribution but reparations).

Towards a Repaired America?

There is never going to be a day and time when all our opinions of the right and

good agree. And therefore contentions about rectifying longstanding wrongs must be

fought on moral grounds and then on all other relevant battlegrounds. The aim of this

paper was to wage a crusade in defense of reparations using moral abstractions to reason

from a position of lack of knowledge to see if reparations are really inherently wrong as it

is often made out to be, especially when applied to the black case. The program of

reparations may be less offensive to whites especially who think someone is out to take

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what they rightfully earned. The thought experiment using Rawls and then Reparatia was

to argue that if we did not know how injustices would affect us our moral intuition would

lead us to choose the position of the worst off so that we may choose policies that would

make us in principle, all better off (limited altruism).

After leaving the realm of philosophy and thought experiments, a truth

commissions identifies most closely with the goal of addressing the inevitable injustice

the parties behind the veil preempted. It is not without its weaknesses but it is a

comprehensive apparatus in that it addresses truth, reparations and more ideally,

reconciliation. The latter is however possible if reparations are given and there is enough

political will to generate national healing. No united America is likely if a significant part

(blacks) of the nation continues to feel cheated, subordinated as if their claims are

unjustified. Nonetheless I also understand that not every black person cares about or

supports reparations and neither does every white person oppose reparations. My model

of the ATRC is meant to reflect some of the agreements extracted from Reparatia. I hope

this experiment can offer motivation for a truth commission in America someday. The

only way that America can progress is to confront the ghosts of its past and to prevent

them from haunting its present and future.

In the end the truism rings profound, only those that have felt know what it means

to feel. The rest of us can simulate the experience but rarely is the effect duplicable. In

the reparations camp opponents and supporters alike would learn well to focus on the

morality of the claims and not on the side order of the economy of the claims. Billions of

blacks have died with their dreams and potential intestate; it is a moral disservice to not

recount and reclaim their humanity by giving to their descendants whatever that will help

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to ameliorate the memory of non-recognition and discrimination. Reparations in all its

forms are justified and are an impatient imperative.

End Notes

1. Few scholars have critically emphasized the moral claims of reparations among then

Bernard Boxill, “Morality of Reparations”, Social Theory and Practice 2(1972): 113-201

and Boris Bittker, The Case for Black Reparations (New York: Random House, 1973).

2. Within political theory especially the liberal tradition has been the frequent use of

complex imagined worlds. For my paper I will use John Rawls’ idea of the veil of

ignorance from an original position to be found in his A Theory of Justice (Cambridge,

Mass: Belknap Press of Harvard University Press, 1971).

3. Cornel West argues that “blacks encounter with the modern world has been shaped

first and foremost by the doctrine of white supremacy which is embodied (not only in

slavery) but in institutional practices enacted in everyday folkways under varying

circumstances and evolving conditions” in Prophesy Deliverance! An Afro-American

Revolutionary Christianity (Philadelphia: The Westminster Press, 1982), p.48.

4. As I see it, talks of reparations are not to ascribe guilt rather it is to let them (whites

especially) see the historical wrongs and to do something about it.

5. John Rawls, A Theory of Justice, (1971) represents the resurrection of American

political theory. Using the analytic tools of the original position and the veil of ignorance

he develops an argument for the principles of justice and how they are negotiated. I use

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these tools especially the veil of ignorance to make a case for an agreed upon principle of

reparations as the preeminent feature of justice.

6. John Rawls, 1971, p.136

7. Rawls, p.120

8. Ibidem, p.124

9. Ibid, p.128

10. Ibid, p.141

11. Rawls, p.146

12. Rawls, pp.144-6

13. Bruce Ackerman, Political Liberalisms, Journal of Political Philosophy 91 (1994):

370-387, p.371.

14. Rawls, 1971, p.136

15. Ibid, p.139

16. Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge

University Press, 1982), p.24.

17. Rawls 1971, p.140.

18. Ibid, p.252

19. Sandel, 1982, p.122

20. Ibid, p.27

21. Ibid, pp.27-8

22. Ibid, pp.29

23. Ackerman, 1994, p.370

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24. Janna Thompson, Historical Injustice and Reparation: Justifying Claims of

Descendants, Ethics 112 (October 2001), pp.114-35. The critical point is made as to the

problem of the rival claims of descendants of the wronged and those that did the wrongs.

Both have different views on the nature of historical injustices and policies of reparations.

25. The American Heritage Dictionary of the English Language, 4th Edition (New York:

Houghton Mifflin Company, 2000).

26. W. David Ross develops the claim that there are some conditional duties to perform,

based either on promises we made, injury we (or someone else) committed, prevention of

injury, or improvement on self. It is meant to challenge the consequentialist doctrine of

performing duties for because of the pleasure they result in. It is a moral intuitionist

argument that aims at deontological postulations different from Kantian obligationist

theory, where duty is an actual duty and not a conditional one. See David Ross, The Right

and Good (Oxford: Clarendon Press, 1930), pp.18- 45.

27. Elizabeth Kiss makes this point in an article entitled “Moral Ambition within and

beyond Political Constraints: Reflection on Restorative Justice” in Robert Rotberg and

Dennis Thompson (eds) Truth vs. Justice: The Morality of Truth Commission (Princeton:

Princeton University Press, 2000), pp.82-3.

28. Kiss, 2000, p.69.

29. Brian Barry, “John Rawls and the Search for Stability”, Ethics 105 (Issue 4, 1996),

p.883.

30. Sandel, 1982, p.155

31. This definition is the result of my own crafting but the influence of the South African

Truth and Reconciliation Commission is very much the context. Furthermore, most of the

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work that informs this section borrows heartily from my unpublished Master's thesis

entitled Truth, Justice and Reconciliation: Dilemmas of Transitional Societies

(University of the West Indies, Mona, Jamaica, September 2000).

32. Manning Marable, Director of the Institute for Research in African American Studies

make this perspicacious point quoted in Ronald Roach, “Moving towards Reparations”,

Black Issues in Higher Education 18, 19 (2001), p.21

33 These lessons are adapted from my unpublished thesis on the South African Truth

Commission.

34. The Report of the South African Truth and Reconciliation Commission (London:

Macmillan Press, 1999) Vols. I-V.

35. Kevin Hopkins, “Forgive U.S our Debts? Righting the wrongs of slavery”, The

Georgetown Law Journal 89, 8 (2001), p.2532

36. Watson Branch, “Reparation for Slavery: A Dream Deferred”, San Diego

International Law Journal, 3 (2002), pp.117-206

37. This is paraphrase of the Old Testament passage from the Holy Bible, Exodus 34:7.

The excerpt seems to speak to intergenerational responsibility for the actions of our

ancestors.

38. Randall Robinson, The Debt: What America Owes to Blacks (New York: Penguin

Press 2000). This book serves as a veritable anchor on which to secure a justified claim

for calculating a monetary compensation figure.

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