Jared Taylor, American Renaissance, November 2004
There are several aspects of Stephen Kershnar’s arguments for reparations that invite response. Although Michael Levin’s review does not make this specific distinction, it is convenient to divide claims for reparations into two kinds: those against governments and those against living individuals who are the presumed beneficiaries of slavery.
The federal government is the favorite target for reparations claims, not because claims against it are strong but because it could conceivably raise the huge sums blacks demand. However, the federal government cannot be held responsible for slavery. There was slavery in the colonies for more than 100 years before the federal government came into existence. Under the Constitution by which the United States was established, slavery was regulated by the states, and was a question over which neither Congress nor the Supreme Court had jurisdiction. Slavery was abolished in the United States by Constitutional amendment, which only underscores the inability of the federal government to end it on its own authority.
Some people believe the Emancipation Proclamation proves the President had the power to abolish slavery, but they are mistaken. The proclamation was a war-time, executive order that applied only to those territories still under the control of the Confederacy, and in that sense no longer under the Constitution. President Lincoln’s proclamation did not free the slaves of Maryland or Washington, DC — both still within the Union — because the President did not have Constitutional authority to free them.
Slavery, therefore, was a practice that pre-dated the federal government, and over which it had no control. It makes no sense to blame it for slavery or hold it liable for alleged damages.
The claim against state governments is slightly stronger, but fails for similar reasons. State governments did not practice slavery. They permitted it, and passed laws to regulate it, but it was individuals who owned slaves, not governments. If there are claims to be made, they must be brought against the people who owned slaves and built institutions to support slavery; not against inanimate institutions. In any case, not even the most ardent reparationists are bringing claims against state governments because no one thinks they could pay or would pay, even if they could.
What about civil suits by the descendants of slaves directly against the descendants of slave-owners? It would be easy to find parties to such suits, and the standard of proof is low: “preponderance of the evidence” rather than “beyond a reasonable doubt.” Why have no such suits been filed? Because they would be laughed out of court. There is no legal theory of hereditary guilt. Guilt is an individual, not a family matter, and does not continue from father to son. Murder is worse than slavery, and yet a murder victim’s son has no claim of any kind on the son of a man who killed his father.
Prof. Kershnar argues that slaves had a right to wages and therefore their descendants have a claim to these wages. Prof. Levin agrees: “For practical reasons” we are not going to pay, but he concedes the principle of indebtedness. This is a dangerous and unjustified concession. If the United States ever accepted the principle of indebtedness to blacks, it would be only a matter of time before someone worked out a formula for payment — even token payment. It is not logical to agree that we owe a debt but then refuse to pay anything because we don’t know the exact amount. If liability is ever firmly established, some reasonable minimum figure will not be far behind
There are excellent reasons to reject the principle of indebtedness. First, slavery was legal. Under 19th century law, owners owed their slaves nothing. To insist, after the fact, that they or their descendants should be compelled to pay wages is to create an ex post facto crime. This is forbidden by the Constitution, as well as by general moral principles. The rule of law collapses if, by a change in the law, we can turn heretofore law-abiding citizens into felons and punish them.
Some may be tempted to make a special exception for slavery, but once we start applying today’s moral standards to the past, there is no end of possible exceptions. We now consider child labor barbarous, but it was legal, just like slavery. Governments sanctioned it, parents permitted it, and employers benefited from it. Do the descendants of child laborers have a claim on anyone? No.
Historically, American governments have meted out harsh punishments — even death — for acts that are now legal: fornication, homosexuality, abortion. Do the descendants of the people so punished have a claim on the governments or people who punished them? No.
Until the 19th Amendment was ratified in 1920, women could not vote in federal elections, and most people think that was wrong. Do women, collectively, have a claim on the government or anyone else? No.
But let us stand on our heads and concede that slavery, though perfectly legal, was a crime anyway. Prof. Kershnar tells us the specific crime was the refusal to pay wages — let us call it robbery or grand larceny. Most crimes short of rape, murder, and arson have a statute of limitations, and in American jurisdictions the statute of limitations for grand larceny is generally five or six years. Over time, evidence goes stale, memories decay, and justice becomes uncertain. Another justification for the statute is that after a certain period of lawful behavior even the perpetrators of all but the most grievous crimes deserve to live without fear of prosecution. If the perpetrators deserve this, do not their distant descendants deserve it even more? For punishment to be just, it must fall on the guilty, not on the unborn.
The entire question of reparations for slavery arises only because it is part of the vexed history of American race relations, not because of the injustice it represents. Americans are conditioned to think slavery was a uniquely evil, shameful part of our history. It takes on this dark hue only because it was whites who enslaved blacks. If American slavery had not been a racial caste system — but was otherwise exactly as we find it — it would be an unremarkable historical curiosity, just as it is in Turkey or India or Indonesia or, for that matter, in France, Italy, and in practically every corner of the world, where slavery has been a near-universal phenomenon.
The fabled wickedness of American slavery has to do almost entirely with our post-slavery racial history, and practically nothing to do with what actually happened. It is only because people’s minds are unhinged by the alleged enormity of American slavery that they advance wild proposals to suspend the Constitution’s prohibition against ex post facto crimes, or invent exotic theories about hereditary guilt that menace us five generations after the fact.
There is slavery in the United States today. The US Justice Department estimates that 14,500 people are trafficked into the country every year, some held by force, others by psychological pressure or threats to their families. They work as domestic servants, prostitutes, and sweatshop laborers. They may be beaten, separated from their families, and, if anything, treated worse than Southerners treated their human property. When these cases come to light, the guilty are punished and the victims are freed. Even after years of forced labor, no one calculates the “back wages” that were due and makes the guilty pay. No one even thinks about requiring the taxpayer to pay a bill for back wages.
Why is there more institutional outrage over antebellum slavery than contemporary slavery? Because white people cannot be blamed for the modern kind. Today’s slaves are almost all foreigners, imported and exploited by foreigners. The most common origins of both traffickers and victims are China, Mexico, and Vietnam, and cases are most frequent among the large immigrant populations of California, Florida, Texas, and New York.
Let us imagine an equivalent number of exactly the same crimes, but committed only by whites against blacks. There would be massive public education campaigns, and a national eradication crusade. There might even be novel theories of compensation that required family members of white perpetrators to help pay “back wages.” In the United States, merely changing the races of the actors can turn a minor episode into a national scandal.
Black activists love to fantasize about large checks dropping out of the sky. Although Americans have a remarkable capacity to submit to unreasonable racial demands, those checks will never fall from the sky. Prof. Levin believes Prof. Kershnar has brought to light a genuine, irrefutable claim blacks have against the rest of us, but even most liberals would probably not agree.
Only one in five households in the Old South could even afford to keep slaves. Given the large number of immigrants to this country since emancipation, it means only a small minority of living Americans even have slave-owning ancestors. Most whites — conservative or liberal — will never accept punishment (and payment is punishment) for something they did not do.