Reparations [3]: The Airtight Legal Case Against Them, and the Moonshot That Would Make Them Possible

“We choose to go to the Moon in this decade… not because [it is] easy, but because [it is] hard; because that goal will serve to organize and measure the best of our energies and skills because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one we intend to win….”

JFK, Sept. 12, 1962[1]

It was 1962 and the Cold War was raging. Soviet leader Nikita Khrushchev gave his “we will bury you” speech to 1956[2] and his shoe-banging speech in 1960[3]. Meanwhile, the competition had turned skyward[4], and the Soviet Union had gotten a leg up.

“History changed on October 4, 1957, when the Soviet Union successfully launched Sputnik I.

“That launch ushered in new political, military, technological, and scientific developments. While the Sputnik launch was a single event, it marked the start of the space age and the U.S.-U.S.S.R space race.

“As a technical achievement, Sputnik caught the world’s attention and the American public off-guard… the public feared that the Soviets’ ability to launch satellites also translated into the capability to launch ballistic missiles that could carry nuclear weapons from Europe to the U.S.”[5]

Astrophysicist Neil deGrasse Tyson compares Sputnik’s impact to the furor that ensured when, on January 11, 2007, China blasted one of its own weather satellites out of the sky:

“The hit put tens of thousands of long-lived fragments into high Earth orbit, adding to the already considerable dangers posed by debris previously generated by other countries, notably ours. China was roundly criticized by other spacefaring nations for making such a mess: twelve days later, its foreign ministry declared that the action ‘was not directed at any country and does not constitute a threat to any country.’

“Hmm. That’s a little like saying the Soviet Union’s launch of the world’s first satellite, Sputnik, in October 1957 was not a threat — even though Sputnik’s booster rocket was an intercontinental ballistic missile, even though Cold Warriors had been thirsting for a space-based reconnaissance vehicle since the end of World War II, even though postwar Soviet rocket research had been focusing on the delivery of a nuclear bomb across the Pacific, and even though Sputnik’s peacefully pulsing radio transmitter was sitting where a nuclear warhead would otherwise have been.”[6]

JFK announced the USA’s comeback with his “we choose to go to the moon” speech[7] to 40,000 people packed into the stadium at Rice University.[8] It was visionary in concept and triumphant in tone. The USA wasn’t going to go to the moon just because the Soviets were trying to beat us there, not just to win a celestial derby for a grand prize of bragging rights, and not just to gain the ultimate battlefield high ground. We were going to do it to further America’s mission of bringing peace to the nations, including the new frontier of outer space.

“Those who came before us made certain that this country rode the first waves of the industrial revolutions, the first waves of modern invention, and the first wave of nuclear power, and this generation does not intend to founder in the backwash of the coming age of space. We mean to be a part of it–we mean to lead it. For the eyes of the world now look into space, to the moon and to the planets beyond, and we have vowed that we shall not see it governed by a hostile flag of conquest, but by a banner of freedom and peace. We have vowed that we shall not see space filled with weapons of mass destruction, but with instruments of knowledge and understanding.

“Yet the vows of this Nation can only be fulfilled if we in this Nation are first, and, therefore, we intend to be first. In short, our leadership in science and in industry, our hopes for peace and security, our obligations to ourselves as well as others, all require us to make this effort, to solve these mysteries, to solve them for the good of all men, and to become the world’s leading space-faring nation.

“We set sail on this new sea because there is new knowledge to be gained, and new rights to be won, and they must be won and used for the progress of all people. For space science, like nuclear science and all technology, has no conscience of its own. Whether it will become a force for good or ill depends on man, and only if the United States occupies a position of pre-eminence can we help decide whether this new ocean will be a sea of peace or a new terrifying theater of war. I do not say the we should or will go unprotected against the hostile misuse of space any more than we go unprotected against the hostile use of land or sea, but I do say that space can be explored and mastered without feeding the fires of war, without repeating the mistakes that man has made in extending his writ around this globe of ours.

“There is no strife, no prejudice, no national conflict in outer space as yet. Its hazards are hostile to us all. Its conquest deserves the best of all mankind, and its opportunity for peaceful cooperation many never come again. But why, some say, the moon? Why choose this as our goal? And they may well ask why climb the highest mountain? Why, 35 years ago, fly the Atlantic? Why does Rice play Texas?

“We choose to go to the moon. We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.

“It is for these reasons that I regard the decision last year to shift our efforts in space from low to high gear as among the most important decisions that will be made during my incumbency in the office of the Presidency.”

The speech didn’t focus on the bad guys, didn’t accuse or blame them, didn’t spout media-speak about protecting our national interests. Instead, it was aspirational. It seized the high ground. We were going to the moon because that’s the kind of thing Americans do — we willingly test ourselves to see how good we are. We routinely “organize and measure the best of our energies and skills because that challenge is one that we are willing to accept.” We do hard things, we take on huge challenges because that’s who we are. We stand on the high ground – on Earth, and in space.

It’s hard to imagine someone making a speech like that today. It feels hokey in the unforgiving hindsight of all that’s transpired in the past 60 years, and especially recently. No, I’m not nostalgic for the 60’s — those were not “the best days of my life.”[9] And no, I’m not beatifying JFK or waving the flag of American superiority – a myth I’ve long since had disillusioned out of me. It’s just that I miss living in a culture, nation, and world where leaders think and act and talk like that. And in particular, if we’re going to talk about reparations for slavery, we need to do so with the kind of attitude and outlook that permeated JFK’s speech. Otherwise, the legal technicalities will shut it down.

The Open-and-Shut Case Against Reparations

Here is the insurmountable legal case against reparations:

  • Slavery wasn’t illegal. There are and never have been criminal penalties or civil remedies against those who carried it out — all of whom are long since dead anyway.
  • The only possible responsible party is the government itself, which sponsored slavery in the first place.
  • But even if there were legal grounds to prosecute or sue the government (there aren’t) you can’t do it anyway. That’s because the government is protected by the legal doctrine of “sovereign immunity,” which means it can’t be held to account for administering its own law.
  • The only tribunal with authority to override the doctrine of sovereign immunity is international law, but submitting to international law is voluntary, a matter of each nation’s willingness to give up some of its sovereignty to its national peers, and that is a choice the U.S. has not made.

“Law and order” adherence to the legal case against reparations instantly shuts down the idea. The legal case against reparations is exemplified in what Senate majority leader Mitch McConnell said about the topic:

“I don’t think reparations for something that happened 150 years ago for whom none of us currently living are responsible is a good idea. We’ve tried to deal with our original sin of slavery by fighting a Civil War and passing landmark civil rights legislation. We’ve elected an African-American president. I think we’re always a work in progress in this country, but no one currently alive was responsible for that. And I don’t think we should be trying to figure out how to compensate for it. First of all, because it’s pretty hard to figure out who to compensate.”[10]

McConnel’s comments make it clear that he views reparations in the conventional way of suing for “damages”– money –to recompense a victimized party for past losses.

I wasn’t there. Nobody who’s alive now was there. Everybody who was there is dead now. It’s not my fault. It’s nobody’s fault. The law doesn’t hold anybody accountable.

He was right about all that. The rest of what he said was legally unnecessary, a resort to the kinds of rationalization and platitudes we reach for when what we really mean is “over my dead body.”

Slavery was bad, but why dwell on the past? We’ve been trying to move on, put it behind us. We’re a work in progress. We need to let bygones be bygones.

He didn’t need platitudes. He could have gone straight to the ultimate legal defense:

The Ultimate Defense: Sovereign Immunity

“Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune to civil suit or criminal prosecution.”[11]

Sovereign immunity came over on the boat with the rest of English common law.

“Sovereign immunity finds its origins in English common law and the king’s position at the ‘apex of the feudal pyramid.’ In that pyramid, lords could not be sued in their own courts, ‘not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.’ Thus, lords could only be sued in the courts of their superiors, but, for the king, ‘there was no higher court in which he could be sued.’” [12]

Where Sovereign Immunity Came From: The Divine Right of Kings

Sovereign immunity is a carryover from the “Divine Right of Kings” – a legal doctrine formulated in the days when monarchies were more than ceremonial. The doctrine was derived from the Biblical worldview that underlies law and culture in America, Europe, and the U.K.

“The theory of the divine right of kings lent support to the proposition that the king was above the law-that he was in fact the law-giver appointed by God, and therefore could not be subjected to the indignity of suit by his subjects…. To Bracton the maxim ‘the king can do no wrong’ meant simply that the king was not privileged to do wrong, but to Blackstone the phrase was not so restricted, and in his Commentaries the following is to be found: ‘Besides the attribute of sovereignty, the law also ascribes to the king in his political capacity absolute perfection… The king, moreover, is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness.’”[13]

The divine right of kings and non-monarchical sovereign immunity both mean that government –i.e., the people in it who determine and enforce its laws — get the same hands-off treatment as God. God can do no wrong — neither can the king or the President or their emissaries.

I still recall sitting in a law school class when I learned about this. How could it be, that government would not be held accountable for how it treats the governed? “Government needs to be free to govern,” my law professor explained.

There is, however, one powerful way through this legal barrier:

Sovereign Immunity Can be Waived.[14]

The government can volunteer to make things right – it can waive its own sovereign immunity. (It has in fact done so on other occasions, which we will also look at another time.)

Viewed solely as a legal act, a waiver of sovereign immunity would require the commitment and action of all three branches of U.S. government: an act of Congress, signed into law by the President, and upheld as Constitutional by the Supreme Court.

Beyond legalities, reparations would require a break from centuries-old notions of the right of government to govern as it sees fit. Such a break would require a new “social contract.” As one history teacher explains:

“The Divine Right of Kings represents a ‘Top Down’ approach to government, in contrast with the ‘Bottom Up’ approach of social contract theory, which claims that the people create governments for their own protection and that those governments serve the people who created them.”[15]

A New Social Contract

According to Rousseau, a social contract is the mechanism by which we trade individual liberty for community restraint. As Thomas Hobbes famously said, lack of that tradeoff is what makes life “solitary, poor, nasty, brutish, and short.”[16] Or, as a recent version put it, “For roughly 99% of the world’s history, 99% of humanity was poor, hungry, dirty, afraid, stupid, sick, and ugly.”[17] A social contract suggests we can do better. As Hobbes said:

“As long as men live without a common power to keep them all in awe, they are in the condition known as war, and it is a war of every man against every man.

“When a man thinks that peace and self-defense require it, he should be willing (when others are too) to lay down his right to everything, and should be contented with as much liberty against other men as he would allow against himself.”[18]

The USA was created out of the colonists’ desire for a new social contract when their deal with England grew long on chains and short on freedom. In response, the Founders declared a new sovereign nation into existence:

“We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

The new nation was conceived in liberty, but there would be limits. Once the Revolutionary War settled the issue of sovereign independence[19], the Founders articulated a new freedom/chains balance:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

That original social contract + revisions and amendments over the course of 250 years of history = the USA as we know it today.

Mitch McConnell was right: our nation’s history is always a work in progress – we are constantly revisiting and readjusting our social contract.

For reparations to happen, we need a new social contract that would enable a waiver of sovereign immunity. And for that to happen, the new social contract needs to explicitly reject a racial perspective articulated by none other than John Wilkes Booth:

“This country was formed for the white, not for the black man,” John Wilkes Booth wrote, before killing Abraham Lincoln. “And looking upon African slavery from the same standpoint held by those noble framers of our Constitution, I for one have ever considered it one of the greatest blessings (both for themselves and us) that God ever bestowed upon a favored nation.”[20]

Reparations Would Require Another Moon Shot

A new social contract is an idea of monumental proportions. People don’t rally behind small ideas. National transformation requires big, bold, decisive initiative — ideas like that are hard, impossible by current standards, that require voyages into uncharted territory and commitment to solve unprecedented problems. The USA would make reparations for slavery because that’s what Americans do — we willingly test ourselves to see how good we are. We routinely “organize and measure the best of our energies and skills because that challenge is one that we are willing to accept.” We do hard things, we take on huge challenges. That’s who we are. We don’t make ourselves the good guys and everyone else the bad. We don’t blame them, don’t spout media-speak about national interests, don’t hide behind legal technicalities. We do the aspirational. We stand on the high ground – on Earth, and in space.

If the USA is going to make reparations for slavery, we need a new moonshot.

 

[1] Here’s the full text. See also Wikipedia.

[2] See a previously classified CIA report on that speech here.

[3] See Wikipedia.

[4] See this timeline for the Space Race.

[5] NASA.

[6] Tyson, Neil deGrasse and Lang, Avis, Accessory to War: The Unspoken Alliance Between Astrophysics and the Military,

[7] Here’s the full text.

[8] Wikipedia.

[9] Bryan Adams, Summer of ’69.

[10] Axios.com.

[11] Wikipedia on Sovereign Immunity. See also Wikipedia on Sovereign Immunity in the United States.

[12] McCann, Miles, “State Sovereign Immunity,” National Association of Attorneys General, NAGTRI Journal Volume 2, Number 4. Although the article is technically about state – vs. federal — sovereign immunity, the quoted text applies to both. See also the following quote from this monograph from the law firm of Debevoise & Plimpton, a New York based firm with a reputation for its commitment to diversity” “At its core, the doctrine of sovereign immunity stands for the proposition that the government cannot be sued without its consent – that is, ‘the King can do no wrong.’ Sovereign immunity is simple in concept but nuanced in application.”.

[13] Pugh, George W., “Historical Approach to the Doctrine of Sovereign Immunity.” Louisiana Law Review Volume 13, Number 3 (March 1953).. Citations omitted.

[14] McCann, Miles, “State Sovereign Immunity” and Wikipedia on Sovereign Immunity in the United States

[15] TomRichey.net.

[16] Hobbes, Thomas, Leviathan.

[17] Rutger Bregman, Utopia for Realists (2016),

[18] Hobbes, op cit.

[19] In Hobbes’ terms, social contracts end the battle royale. Ironically, they often also create war as the ideals of one contract conflict with those of another.

[20] Coates, Ta-Nehisi, The Case for Reparations, The Atlantic (June 2014).

Reparations [2]: Slavery, Human Capital, Le Déluge, and Paying the Piper

Après moi, le déluge.
(After me, the deluge.)
— King Louis XV of France

Proposed reparations for the USA’s racial history raise complex legal, economic, and other issues. We’re familiar with these – they’ve been well-rehearsed in op-eds and speeches by politicians and pundits, activists and the media.

Less familiar are issues more subjective than objective, reflective than combative, instinctual than intellectual. These are the province of shared human experience and sensibility, particularly of virtue — a nearly obsolete concept these days. Virtue prompts change not from the outside, not institutionally, but from a transformation in shared human consciousness, a cultural change of heart, We learn its lessons not from economic models and legal briefs, but principally from truth expressed in fiction –myths and legends, fables and feature films — Aesop’s Fables for adults. As one of Aesop’s contemporaries said about him:

“… like those who dine well off the plainest dishes, he made use of humble incidents to teach great truths, and after serving up a story he adds to it the advice to do a thing or not to do it. Then, too, he was really more attached to truth than the poets are; for the latter do violence to their own stories in order to make them probable; but he by announcing a story which everyone knows not to be true, told the truth by the very fact that he did not claim to be relating real events.”.[1]

As we’ll see below, virtue asks more than legal compliance, it demands that we pay the piper.

In this series, we will look at both kinds of issues in detail.

History Lesson: The French Revolution

“After me, the deluge” is sometimes attributed to the King’s mistress, Madame de Pompadour, as “After us, the deluge.” Either way – King or mistress, me or us – the quote is usually taken as a prophesy of the French Revolution, delivered with an attitude of elite indifference that ranks right in there with Marie Antoinette’s “Let them eat cake.” (Which she probably never said.[2]) “We’re getting away with it now, but all hell is going to break loose once we’re gone.” And indeed it did, when King Louis XVI was guillotined a generation later, under the name Citizen Louis Capet. [3]

From that historical context, après moi, le déluge has come to represent an awareness of coming doom, a feeling that we can’t get away with this forever. Things are good now, but watch out, they won’t last. People thought life was good back in Noah’s time, but look what happened to them. We keep this up, we might get our own version of the Flood.

Contemporary Lesson: Economic Inequality

Plutocrat Nick Hanauer offers a modern version of the saying in his TED talk. According to his TED bio, Hanauer is a “proud and unapologetic capitalist” and founder of 30+ companies across a range of industries, including aQuantive, which Microsoft bought for $6.4 billion. He unabashedly loves his yacht and private jet, but fears for his own future, and the futures of his fellow plutocrats, if economic inequality is left unaddressed:

“What do I see in our future today, you ask? I see pitchforks, as in angry mobs with pitchforks, because while people like us plutocrats are living beyond the dreams of avarice, the other 99 percent of our fellow citizens are falling farther and farther behind.

“You see, the problem isn’t that we have some inequality. Some inequality is necessary for a high-functioning capitalist democracy. The problem is that inequality is at historic highs today and it’s getting worse every day. And if wealth, power, and income continue to concentrate at the very tippy top, our society will change from a capitalist democracy to a neo-feudalist rentier society like 18th-century France. That was France before the revolution and the mobs with the pitchforks.”

Whether French Revolution or today, the issue is “paying the piper.”

The Moral of the Story: The Pied Piper of Hamelin

Pied Piper

Illustration by Kate Greenaway for Robert Browning’s “The Pied Piper of Hamelin”

Victorian poet Robert Browning brought us the “paying the piper” idiom in The Pied Piper of Hamelin. [4] Here’s a synopsis to refresh our memories:

“‘Pay the piper’ comes from the famous 1842 poem by Robert Browning, The Pied Piper of Hamelin. The story is about a German town called Hamelin which, after years of contentment, was suddenly plagued by a huge increase in the rat population, probably due to some plague or poison which had killed all the cats. The rats swarmed all over, causing much damage. Try as they might, the townspeople could not get rid of the rats.

“Then appeared a mysterious stranger bearing a gold pipe. He announced that he had freed many towns from beetles and bats, and for a cost, he would get rid of the rats for the town.

“Although he only wanted a thousand florins, the people were so desperate that the Mayor promised him 50,000 for his trouble, if he could succeed.

“At dawn, the piper began playing his flute in the town and all the rats came out of hiding and followed behind him. In this way, he led them out of the town. All the rats were gone.

“When the piper came back to collect his pay, the town refused to pay even his original fee of one thousand florins. The mayor, thinking the rats were dead, told the piper he should be happy if he received any pay at all, even fifty florins.

“The pied piper warned the town angrily that they would regret cheating him out of his pay.

“Despite his dire warning, the rats were gone so the townspeople went about their business, at last enjoying a peaceful night’s sleep without the scurrying and gnawing of rats.

“At dawn, while they slept, the sound of the piper’s pipe could be heard again, except this time only by the children. All the children got out of bed and followed behind the piper, just as the rats had before. The piper led the children out of town and into a mountainous cave. After all the children had walked into the cave, a great landslide sealed up the entrance. One little boy managed to escape and tell the town what had happened to the children. Although they tried, they could never rescue them, and they were lost forever.”

After me, the deluge + Pay the piper = Pay the piper or risk the deluge

Virtue says don’t get greedy. Don’t be tempted. Don’t be a fraud. Keep your end of the bargain. Don’t be too smart for your own good. Don’t try to get away with it. You’re better than that. Fess up, take responsibility. Don’t invite the deluge – the sudden and terrible twist of fate, the movement of greater mysteries, the imposition of higher justice.

The rats you get rid of won’t be worth the children you lose.

The mayor and citizens of Hamelin defrauded the Piper at the cost of their own children. Justice was absolute — the mountain vault was sealed. The Piper was fully, awfully paid.

Reparations for American slavery are a proposed remedy – a way to pay the piper — for the lost humanity of slaves, stolen from them by a legal and economic framework that assigned slaves economic but not human value. Slaves were dehumanized, and virtue will not tolerate it.

Exploitation of Human Capital

Exploitation of capital assets is expected in a capitalist economy. Human labor is a capital asset, and will also be exploited — everyone who’s ever worked for someone else figures that out the first day on the job. But slavery took exploitation too far: slaves were not people, they were capital assets and nothing more. They were no longer human.

“Exploitation can also be harmful or mutually beneficial. Harmful exploitation involves an interaction that leaves the victim worse off than she was, and than she was entitled to be. The sort of exploitation involved in coercive sex trafficking, for instance, is harmful in this sense. But as we will see below, not all exploitation is harmful. Exploitation can also be mutually beneficial, where both parties walk away better off than they were ex ante. What makes such mutually beneficial interactions nevertheless exploitative is that they are, in some way, unfair.

“It is relatively easy to come up with intuitively compelling cases of unfair, exploitative behavior. Providing a philosophical analysis to support and develop those intuitions, however, has proven more difficult. The most obvious difficulty is specifying the conditions under which a transaction or institution may be said to be unfair.

“Does the unfairness involved in exploitation necessarily involve some kind of harm to its victim? Or a violation of her moral rights? Is the unfairness involved in exploitation a matter of procedure, substance, or both? And how, if at all, are facts about the history of the agents involved or the background conditions against which they operate relevant to assessing charges of exploitation?”[5]

Slavery harmed its victims, exploited them both procedurally and substantively. And “the facts about the history” of slavery’s purveyors and “the background conditions against which they operate[d]” are most definitely “relevant to assessing charges of exploitation.” Today, 165 years after the nominal end of slavery, those charges remain unanswered, and unpaid.

Slavery and Human Capital

19th Century economist John Elliot Cairnes was “an ardent disciple and friend of John Stuart Mill” and “was often regarded as ‘the last of the Classical economists.’”[6] Writing during the American Civil War, Cairnes analyzed the impact of slavery on both human and other forms of capital in his book The Slave Power: Its Character, Career, and Probable Designs: Being an Attempt to Explain the Real Issues Involved in the American Contest.[7]

“Cairnes’s shining hour was his widely-discussed 1862 treatise Slave Power.  Cairnes analyzed the consequences of slavery for economic development, in particular how it speeded up soil erosion, discouraged the introduction of technical innovations and stifled commerce and enterprise more generally. Written during the American Civil War, Cairnes warned British policymakers to think twice about backing the economically-unviable Confederacy.  Cairnes book was instrumental in turning the tide of popular English opinion against the rebels.”

Writing about slaves as human capital, Cairnes said this:

“The rice-grounds of Georgia, or the swamps of the Mississippi may be fatally injurious to the human constitution; but the waste of human life which the cultivation of these districts necessitates, is not so great that it cannot be repaired from the teeming preserves of Virginia and Kentucky.

“Considerations of economy, moreover, which, under a natural system, afford some security for humane treatment by identifying the master’s interest with the slave’s preservation, when once trading in slaves is practiced, become reasons for racking to the uttermost the toil of the slave; for, when his place can at once be supplied from foreign preserves, the duration of his life becomes a matter of less moment than its productiveness while it lasts.

“It is accordingly a maxim of slave management, in slave-importing countries, that the most effective economy is that which takes out of the human chattel in the shortest space of time the utmost amount of exertion it is capable of putting forth. It is in tropical culture, where annual profits often equal the whole capital of plantations, that negro life is most recklessly sacrificed. It is the agriculture of the West Indies, which has been for centuries prolific of fabulous wealth, that has engulfed millions of the African race. It is in Cuba, at this day, whose revenues are reckoned by millions, and whose planters are princes, that we see in the servile class, the coarsest fare, the most exhausting and unremitting toil, and even the absolute destruction of a portion of its numbers every year.”[8]

Five years after Cairnes wrote that, Karl Marx cited the above passage in Das Kapital[9] in his own analysis of slave labor as capital:

“The slave-owner buys his labourer as he buys his horse. If he loses his slave, he loses capital that can only be restored by new outlay in the slave-mart.

“‘Après moi le déluge!’ is the watchword of every capitalist and of every capitalist nation. Hence Capital is reckless of the health or length of life of the labourer, unless under compulsion from society.

To the out-cry as to the physical and mental degradation, the premature death, the torture of over-work, it answers: Ought these to trouble us since they increase our profits?

Marx believed that the ultimate culprit was not the individual slave owners, but the capitalist economic system which sponsored the exploitation of all capital – including human capital – to achieve its competitive goal of profitability:

“But looking at things as a whole, all this does not, indeed, depend on the good or ill will of the individual capitalist. Free competition brings out the inherent laws of capitalist production, in the shape of external coercive laws having power over every individual capitalist.”

Under the reign of capitalism, Marx argued, workers would be exploited – slaves and free alike — and this would be both an economic and cultural norm. This practice would become so entrenched that it could only be broken by a contrary “compulsion from society.”

The Deluge:  Civil War

“The deluge” is a form of “compulsion from society,” and civil war is a form of both.

The American Civil War was the deluge. The war ended almost exactly four years after it began, at the cost of hundreds of thousands of American lives, uncounted non-fatal casualties, and incalculable damage to the rest of American citizenry, human property, and nature.

“Approximately 620,000 soldiers died from combat, accident, starvation, and disease during the Civil War. This number comes from an 1889 study of the war performed by William F. Fox and Thomas Leonard Livermore. Both men fought for the Union. Their estimate is derived from an exhaustive study of the combat and casualty records generated by the armies over five years of fighting.  A recent study puts the number of dead as high as 850,000. Roughly 1,264,000 American soldiers have died in the nation’s wars–620,000 in the Civil War and 644,000 in all other conflicts.  It was only as recently as the Vietnam War that the number of American deaths in foreign wars eclipsed the number who died in the Civil War.”[10]

Tragically, the course of American racial history would question if all those deaths had been in vain. War – the deluge, the compulsion of society – had its day, but it didn’t change cultural attitudes — the same ones that supported Antebellum slavery only became more belligerently expressed.

In France, Louis XV saw the deluge coming, Louis XVI suffered from it, but eleven years later Napoleon was Emperor.

The piper was never paid.

In the USA, war gorged itself on the American land and population, but the Union’s victory foundered on the failings of the Reconstruction.

The Piper was never paid.

The law concerning slavery was changed, but de facto[11] slavery lived on. Before the Civil War, slavery had been, like war itself, a legal crime against humanity, justified under the law of the land. After the Civil War, slavery was simply a crime, illegal as all other crimes, but propagated by a reign of terror that eventually gained its own legal justification that would once again have to be dismantled by another compulsion from society 100 years later.

After the war, you couldn’t own slaves anymore, couldn’t buy and sell them, but you could treat legally freed former slaves just as you once treated their legally enslaved predecessors. In fact, it was much worse. Before the war, the ownership and treatment of slaves was by legal right. After the war, de facto slavery relied on a reign of terror grounded in cultural indifference and brutality. Cruel and unusual punishment had been banned by the Eighth Amendment to the U.S. Constitution, but de facto slavery relied on it to terrorize society into submission.

The Piper was never paid.

The U.S. Labor Movement and Human Capital

The American labor movement’s 400-year history is a chronicle of shifting economic theories and new labor laws brought about by periodic challenges – compulsions from society – to the capitalist norm of the exploitation of human capital.[12] Changing times generated changing attitudes, and American culture demanded accommodations in often violent ways.

And now, in the middle of another deluge – this time a plague, the Covid-19 virus – we have seen the most recent and striking societal shift in the form of the Supreme Court’s ruling that the Civil Rights Act of 1964 protects LGBTQ workers from workplace discrimination.[13] Few would claim that the 56-year old Civil Rights Act specifically had today’s gender sensibilities in mind, but the law shifts with cultural attitudes when compelled to do so.

The labor movement will continue to change with the times. Issues of sexism remain, and technology – especially robotics, AI, and machine learning – are threatening human labor in ever-accelerating, unprecedented ways. There will be more deluge, more societal compulsion.

The Piper was never paid.

The Racist Roots of Police Brutality

Finally – for today, at least – the Coronavirus deluge has also recharged the force of societal compulsion currently taking on mass incarceration and police brutality, both of which have historical roots in the Reconstruction’s unresolved racism.[14]

The Piper was never paid.

We have much more to talk about. We’ll continue next time.

[1] Philostratus, Life of Apollonius of Tyana, Book V:14. From Wikipedia.

[2] See Solosophie.com and Phrases.org.

[3] For more about what the saying might mean, see this is from Wikipedia: “The most famous remark attributed to Louis XV (or sometimes to Madame de Pompadour) is Après nous, le déluge (“After us, the deluge”). It is commonly explained as his indifference to financial excesses, and a prediction of the French Revolution to come. The remark is usually taken out of its original context. It was made in 1757, a year which saw the crushing defeat of the French army by the Prussians at the Battle of Rossbach and the assassination attempt on the King. The “Deluge” the King referred to was not a revolution, but the arrival of Halley’s Comet, which was predicted to pass by the earth in 1757, and which was commonly blamed for having caused the flood described in the Bible, with predictions of a new deluge when it returned. The King was a proficient amateur astronomer, who collaborated with the best French astronomers. Biographer Michel Antoine wrote that the King’s remark “was a manner of evoking, with his scientific culture and a good dose of black humor, this sinister year beginning with the assassination attempt by Damiens and ending with the Prussian victory”. Halley’s Comet finally passed the earth in April 1759, and caused enormous public attention and anxiety, but no floods.

[4]   Idioms.online.

[5] Exploitation, Stanford Encyclopedia of Philosophy (first published Thu Dec 20, 2001; substantive revision Tue Aug 16, 2016).

[6] The History of Economic Thought.

[7] Cairnes, John Eliot, The Slave Power: Its Character, Career, and Probable Designs: Being an Attempt to Explain the Real Issues Involved in the American Contest (1862).

[8] Cairnes, Slave Power, op cit.

[9] Marx, Karl, Das Kapital (Vol. 1, Part III, Chapter Ten, Section 5).

[10] American Battlefield Trust.

[11] “In law and government, de facto describes practices that exist in reality, even though they are not officially recognized by laws. It is commonly used to refer to what happens in practice, in contrast with de jure, which refers to things that happen according to law.” Wikipedia

[12] See this timeline, which runs from 1607-1999, beginning with complaints about labor shortages in Jamestown in 1607, addressed by the arrival in 1619 of the first slaves stolen from Africa.

[13] Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules, New York Times (June 16, 2020).

[14] See, for example, The Racist Roots Of American Policing: From Slave Patrols To Traffic Stops, The Conversation (June 4, 2019) and George Floyd’s Death Reflects The Racist Roots Of American Policing, The Conversation (June 2, 2020).

Reparations [1]: Economics and a Whole Lot More

The current civil rights movement has reopened the discussion about reparations for American slavery[1]:

“As protests continue to convulse cities across America, many wonder where we go from here. It’s impossible to know the future. But if efforts do not include meaningful reparations for African Americans, the omnipresent injustices we face will not be resolved.

“For a long time, the word ‘reparations’ was a non-starter, but it is finally losing its taboo. The movement to provide financial redress to African Americans for centuries of subjugation and racial terror was already growing last year. HR 40, a bill that would establish a commission to study the legacy of slavery and develop reparations proposals to Congress, is enjoying a surge in support. Groundbreaking reparations legislation has been approved in Evanston, Ill. And a bill has been introduced in the California Assembly that would create a task force to study the impact of slavery and offer proposals for reparations for African-Americans in the state.

“The outpouring of anger in every corner of this country in recent days — more than 400 years after the first enslaved Africans arrived in America — could finally put reparative justice within reach.”

The day after the above appeared in the Los Angeles Times, Oprah Whitney ran a special that contained a segment on reparations. The day after that, the following appeared in the Washington Examiner[2]:

“It was only a matter of time before ‘Justice for George Floyd’ became ‘And while we’re at it, here are a few other things we’d like you to take care of with no questions asked.’

“That’s invariably what happens when the media, Hollywood, and the Democratic Party get involved.

“What started out as an issue over excessive force used by police against minorities has quickly devolved into a jackpot for the social justice people who see oppression, grievance, and victimhood in every aspect of their lives.

“[Bringing up the topic of reparations for slavery] lost the attention of nearly every white person who might have been watching.”

Thus the issue was reframed as a political blasting cap.

We can do better.

In the past couple weeks, I’ve collected a research file on reparations of over two dozen pages of resources and citations that make the topic much larger than who’s for it and who’s against it, who would get paid how much and when and how, how the government would finance it, etc. Instead, my research pulls back to a wide shot that starts with economics and law but then encompasses everything from individual and institutional belief systems, religious and secular notions of morality and ethics, national and cultural identity and worldview, and a whole lot more. I found all of that in the 400 years of American history I never knew, including the history made in my own time. I suggest we start with the latter as a first step toward moving ourselves past polarization paralysis.

Coming of Age in the 1960’s Civil Rights Movement

My hometown was a rural community in the western plains of Minnesota, populated with Scandinavian Lutherans living on Homestead Act farms in family groups where the grandparents still spoke Norwegian. There were also enough German Catholics to support a parish with a K-8 school staffed by nuns. The rest of us – the minorities — were identified mostly by reference to the small Protestant churches where our parents took us on Sundays.

None of us had any reason to be racist, but we were, although we would have been surprised and insulted if somebody had pointed that out, which of course nobody did. Racial slurs were part of the vocabulary: my childhood friends tossed around the N-word as casually as they traded baseball cards, and talked about “putting them on the boat and shipping them back.”[3] Nothing personal, that kind of talk was just… normal. I always felt ashamed to hear it. I didn’t know why. And you didn’t talk that way in my house. The N-word we used was “negro” – blacks weren’t called blacks yet.

In 1954, the year after I was born, the US Supreme Court ruled in Brown v. Board of Education that “separate but equal” violated the Constitution. A few years later – I was four, maybe — I saw a black man for the first time.

Our home was up the hill from the railroad tracks, and the “bums” who rode the rails sometimes camped in a ravine between the tracks and our house, and would come begging. I came downstairs to breakfast one morning to see my mother talking through the back screen door to a black man standing in the middle of our backyard, well away from the house. He wore a wrinkled white shirt and baggy gray trousers held up with suspenders, and was holding his hat with both hands at this chest, head slightly bowed. “I would be so very much obliged, ma’am,” he was saying. Mom turned away from the door and started frying eggs, making toast, and pouring coffee. Her face had that hard, determined look you didn’t cross. I asked who he was, and what he wanted. “He’s a bum,” she said, “and he’s hungry.” My own breakfast was going to wait, so I went up to my room to play. When I came back he was gone.

My dad had the International Harvester farm implements franchise, and now and then he won a sales contest that earned him a trip to a company function. One of those was in the South, with a stop to visit his dad, who had retired to Sarasota. Our family didn’t talk much at meals — mostly sat, ate, and left — but at “supper” (not “dinner” like the city people on TV) on his first night back home he sat looking stunned all the way through pie and ice cream and coffee as he described what he’d seen: a “No Colored” sign over a water fountain, a “Colored” entrance at a restaurant…. We were all stunned with him, that such things existed. We had no idea.

A few years later, LBJ’s Great Society[4] brought Lady Bird Johnson to town for a ribbon-cutting commemoration of a renovation to Main Street. It’s only now that I wonder if a few benches, flower planters, and garish turquoise mushroom-shaped fiberglass shelters were what LBJ and the Congress had in mind when they passed a law promoting urban renewal. Schools closed for the parade, there were speeches and reporters from the Minneapolis Star and Tribune, and we made the 6:00 o’clock news from the NBC affiliate we picked up with an antenna on the roof.

About then I started drawing pictures of black athletes on my tablet during recess — Lew Alcindor, Cassius Clay, Dr. J…. Kids would gather around to watch. One day one of them snorted, “Nigra,” and walked away. I liked the sound of the word. It wasn’t the usual N-word, and it seemed defiant somehow. I drew another picture of a Black Everyman with an afro, and wrote “Nigra” underneath it. I’ll bet I could still draw it today.

Middle school summers at the lake (you took refuge from the baking humidity at a “cottage at the lake”) were played out to a soundtrack liberally laced with Motown, and two weeks at Boy Scout camp brought letters from home with news of riots. Detroit was burning. L.A. was burning. “Ghetto” entered the national lexicon, and even Boy Scouts in the north woods knew where Watts was.

In high school, my girlfriend went with her Lutheran Youth Group to a civil rights event in the Twin Cities that included a speech from a local Black Panther leader. In those days you didn’t say the F-word even if you were telling a story about somebody who used it, but somehow she communicated that the speaker had used that word a whole lot. I wondered why.

In 1968, USA runners Tommie Smith and John Carlos raised their fists on the medal podium, joined by silver medalist Peter Norman, a white Australian runner.

“As the American athletes raised their fists, the stadium hushed, then burst into racist sneers and angry insults. Smith and Carlos were rushed from the stadium, suspended by the U.S. team, and kicked out of the Olympic Village for turning their medal ceremony into a political statement. They went home to the United States, only to face serious backlash, including death threats.

“However, Carlos and Smith were both gradually re-accepted into the Olympic fold, and went on to careers in professional football before retiring. Norman, meanwhile, was punished severely by the Australian sports establishment. Though he qualified for the Olympic team over and over again, posting the fastest times by far in Australia, he was snubbed by the team in 1972. Rather than allow Norman to compete, the Australians did not send a sprinter at all.”[5]

In 1971, six months before I graduated from high school, Sports Illustrated ran its “Black is Best” article.[6]

“It is clear that the black community in the U.S. is not just contributing more than its share of participants to sport. It is contributing immensely more than its share of stars. Black athletes accounted for all eight Olympic records set by U.S. runners at Mexico City in 1968, which led a European coach to observe: ‘If not for the blacks, the U.S. team would finish somewhere behind Ecuador.’”

I was an athlete. Those events and stories meant a lot to me.

Off at college, my R.A. was black (no longer a negro), and two other black guys shared a room two doors down from mine. With them in my life, I felt like I had arrived. Kelly had a springy, athletic way of moving, a short afro and a ready smile. Miles was tall and stooped, had a giant afro, always seemed mad, and never spoke. I wondered why.

I became a Jesus Freak during a gap year, and a Lutheran youth pastor (he had long hair, wore a big wooden cross, and drank beer at Kenny’s Tavern) struck a blow for ecumenicism and invited me along as a counselor on a trip with his youth group to a conference in Houston. Our first day at the convention center, a procession of blacks in bright blue robes marched two-by-two through the crowd, dipping and bobbing, two steps forward one step back, singing and -chanting, “Y-E-S, oh yes, Y-E-S, oh yes….” We followed them to the Y.E.S. Soul Choir’s gospel music concert. That night’s general session featured Andre Crouch and the Disciples rocking the house. I had one of their records back home. My new life as a Jesus Freak didn’t get any better than this.

Back at school, I heard about the annual welcome picnic for black students and decided to go. I was the only white guy there, didn’t know anybody and couldn’t think of what to do, so I volunteered for the serving line. A black guy and girl from Houston joined the campus Christian fellowship that fall, and the three of us started a Bible study with their friends in Black House. That winter a movie came out about Corrie ten Boom – the Nazis sent her and her family to concentration camps for aiding Jews — and fifteen black urban kids and one white town kid piled into a couple college vans and drove to a nearby town for pizza and the movie. The silences that met our arrivals were… thunderous. Not hostile, not threatening, mostly just… pointed. We were something you didn’t see every day. We were the new normal, and it was taking some getting used to.

That spring, we brought my co-leader’s pastor up from her church in Houston. For three days I followed him around, sat next to him at meals and in small groups, watched him — tall, erect, muscular in tailored three-piece suits and gleaming white shirts with cufflinks — as he parted the waters of shabby tie-dyed holey-jeaned flower children, laying down the gospel in a voice that rumbled.

The more I go on, the more I could go on — the memories pour in, scenes from a decade far more turbulent than the worst flight you’ve ever been on, racing across my mind’s theater screen in a blurry fast forward, leaving behind the indelible feel of those times. Incredibly, the Civil Rights Movement wasn’t the only one bringing radical cultural change, but only one of many in a Revolution that was everywhere. The times were as thick and pungent with change as the marijuana haze that filled the quad, filled the dorms. The world was changing, and we were changing it. No, we had changed it. One night I attended a guest lecture where a visiting astrophysicist described a new cosmological theory called the Big Bang — the entire universe blasted into existence from an inconceivably compressed pre-temporal mass. It made sense. We could relate. We were living our own Big Bang.

Deep Ignorance and Long Memories

Then it was the 1970’s, and the Revolution staggered along, still tripping but starting to come out of it, Soon every commercial had at least one black person in it, like that was normal. Okay, so maybe it was tokenism, but we didn’t care, it would be normal soon enough. With that attitude, we were making the same mistake every generation seems to make: we assumed we were the enlightened ones, we’d gotten it right in ways our parents hadn’t, and they would have to deal with life on our new terms, and our terms were that “prejudice” (it wasn’t called “racism” yet) was over. The Beast was dead. The stain of slavery had been expunged. Equality was fixed in place, a given, a reality solidly grounded.

Or so we thought.

The first Black History month was observed in 1970 at an iconic location – the Kent State campus, ground zero of our opposition to the Vietnam War. I heard about it, as I’ve heard about it annually for the past fifty years, but I’ve never participated, never attended because… well, why would I? There was no point in it: the new normal was that the races were now equal. We wouldn’t have a White History Month, so why a would we have a Black one?

Or so I thought.

I managed to hold those beliefs, that judgment of history, all the way into this century, even as the justice system carried out its policies of mass incarceration, even as the news increasingly included body cam and cell phone videos of the police beating and murdering black people.

The new Civil Rights Movement has finally awakened me to just how shockingly wrong and blind I was and have been. And not just me, but how wrong and blind many in my generation were and have been. We never grew up, remained children full of ourselves. We made false assumptions, stopped learning from the times that came after ours, and never bothered to learn from the times that came before our own. That level of misjudgment generated the deepest kind of ignorance – not merely a personal failure to know, but the shared ignorance of an entire generation, a massive communal failure to know that history is not a dead letter but an active force still alive in us, still powering us in hidden, subconscious ways, still shaping our attitudes, initiatives, and responses in ways we would vehemently deny if confronted with them, just as my hometown would have denied its racism back in the day. We soak up our history from our surroundings, breathe it in, are immersed in it… and we don’t even know it. That kind of ignorance and arrogance has enabled the systemic racism that today’s protests are now broadcasting to the world.

It seems fitting, then that my personal reckoning should begin with a century-old cultural memory that, until my research on this article, was part of my massive, hidden Black History file of stupefying ignorance. The 1921 Greenwood Massacre is a particularly pertinent place to begin writing about reparations: it was undeniably a major economic event, but it was also much, much more, and the long-suppressed memory of it has now found its way out, and into the streets.

The Greenwood Massacre

Greenwood massacre

Photo:  Tulsa Historical Society

We heard earlier from Damario Solomon Simmons, a civil rights attorney and adjunct professor of African and African American studies at the University of Oklahoma. He wrote this in his L.A. Times article cited earlier:

“The aversion to making amends for systemic racism is perhaps most evident in my hometown of Tulsa, Okla., which last week commemorated the 99th anniversary of the Greenwood massacre.

“On May 31, 1921, thousands of white Tulsans, 2,000 of whom were deputized by the police, stormed the Greenwood neighborhood, a community known as ‘Black Wall Street.’ In one day and night, the nation’s most prosperous black community was reduced to rubble. Hundreds were killed, and more than 10,000 black Tulsans were left injured, homeless and destitute.

“For decades, Greenwood managed to flourish despite racist Jim Crow laws in Oklahoma. In a matter of hours, millions of dollars in hard-fought wealth — property, homes, businesses, investments — burned to ashes. About 35 square blocks, including 1,200 homes and scores of businesses, were destroyed. Tulsa has not been the same since.”[7]

Ta-Nehisi Coates, a national correspondent for The Atlantic, wrote in 2014 what remains as the definitive piece on slavery reparations.[8] There, he wrote this about the Greenwood Massacre:

“Something more than moral pressure calls America to reparations. We cannot escape our history. All of our solutions to the great problems of health care, education, housing, and economic inequality are troubled by what must go unspoken. ‘The reason black people are so far behind now is not because of now,’ Clyde Ross told me. ‘It’s because of then.’ In the early 2000s, Charles Ogletree went to Tulsa, Oklahoma, to meet with the survivors of the 1921 race riot that had devastated ‘Black Wall Street.’ The past was not the past to them. ‘It was amazing seeing these black women and men who were crippled, blind, in wheelchairs,’ Ogletree told me. ‘I had no idea who they were and why they wanted to see me. They said, We want you to represent us in this lawsuit.’ ”

“A commission authorized by the Oklahoma legislature produced a report affirming that the riot, the knowledge of which had been suppressed for years, had happened. But the lawsuit ultimately failed, in 2004. Similar suits pushed against corporations such as Aetna (which insured slaves) and Lehman Brothers (whose co-founding partner owned them) also have thus far failed. These results are dispiriting, but the crime with which reparations activists charge the country implicates more than just a few towns or corporations. The crime indicts the American people themselves, at every level, and in nearly every configuration. A crime that implicates the entire American people deserves its hearing in the legislative body that represents them.

“John Conyers’s HR 40 is the vehicle for that hearing. No one can know what would come out of such a debate. Perhaps no number can fully capture the multi-century plunder of black people in America. Perhaps the number is so large that it can’t be imagined, let alone calculated and dispensed. But I believe that wrestling publicly with these questions matters as much as—if not more than—the specific answers that might be produced. An America that asks what it owes its most vulnerable citizens is improved and humane. An America that looks away is ignoring not just the sins of the past but the sins of the present and the certain sins of the future. More important than any single check cut to any African American, the payment of reparations would represent America’s maturation out of the childhood myth of its innocence into a wisdom worthy of its founders.”

Bottom line: today’s Civil Rights Movement is asking me, asking us, to grow up to our own history.

More next time.

[1] Simmons, Damario Solomon, Reparations Are The Answer To Protesters’ Demands For Racial Justice, Los Angeles Times (June 8, 2020).

[2] Scarry, Eddie, George Floyd Protests Hijacked For Reparations And Other Pet Projects,, Washington Examiner (June 10, 2020).

[3] See A History of Hate Rock From Johnny Rebel to Dylann Roof, The Nation, June 23, 2015.

[4] See the story in History,com.

[5] See the story in History.com.

[6] Sports Illustrated, January 18, 1971.

[7] Simmons, op cit.

[8] Coates, Ta-Nehisi, The Case for Reparations, The Atlantic (June 2014).