The Just Case for Reparations

Is land the answer for blacks and natives?

Boston Public Library Archives

In 1988, President Ronald Reagan signed The Civil Liberties Act, which gave surviving Japanese Americans reparations for their internment during World War II. Reagan also gave a formal apology on behalf of the federal government. 

One might say this law was just because these reparations accrued to Japanese Americans who were still among the living victims. There is also justice in the idea that some of the government authorities who interned the Japanese were still alive in 1988, as well, even though the cost of this particular plan was spread over the entire U.S. population.

Edoardo Frezet

Similarly, in 2013, North Carolina became the first state in the nation to pass legislation to compensate the living victims of the state’s forced sterilization program.

If one were rating these laws in terms of justice, say, as justice is conceived in the liberal law of torts wherein recompense is determined by identifying specific perpetrators and specific victims, we might give the 1988 Japanese Reparations law 3 out of 5 stars. But as time passes and new generations are born, assigning blame or benefit becomes more difficult. Intergenerational compensatory justice is fraught.

The question of reparations around Native Americans and African Americans is not as easy to score as the case of Japanese Americans—and even more difficult to justify despite the magnitude of the past wrongs. Nevertheless, perhaps we can make a relatively just case for reparations. 

The Known Case

But first, let’s evaluate the cases.

There are two basic cases for reparations for blacks and natives. One is known, and the other is unknown. One is just, and the other is unjust. We might call the known case the “critical social justice” case and the unknown case the “just case,” but for now, the known and unknown cases will have to do.

“The only remedy to racist discrimination is antiracist discrimination,” writes antiracist academic, Ibram X. Kendi. “The only remedy to present discrimination is future discrimination.”

This is the essence of the known case.

Professional sophist Brianna Joy Gray, writing at X, peddles the known case:

White people and others who aren't decedents [sic] of American slavery & Jim Crow need to understand that I'm not asking for their permission or approval wrt reparations any more than Native Americans or Holocaust survivors or interred [sic] Japanese Americans hinged their moral and legal right to restitution on the small, uninformed opinions of those who benefited from their oppression.

Ironically, Kendi’s and Gray’s legal theory—the known case—originates in Critical Race Theory (CRT) and associated notions of social justice rooted in postmodernism and critical theory.

To see why, we need only read the leading lights of CRT, Richard Delgado and Jean Stefancic:

Unlike traditional civil rights, which embraces incrementalism and step-by-step progress, critical theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.

You read that right.

CRT experts admit that CRT isn’t about legal reasoning in a liberal order. These theories depend on illiberal conceptions of justice and spurious models of recompense and redistribution. And so does the known case for reparations.

The known case involves punishing the living, i.e., those who committed no crime, based on imprecise notions such as privilege and systemic racism. These social justice pieties are designed to be imprecise, so their politicization can steamroll over wiser conceptions of justice. In civil tort cases, for example, a plaintiff must prove damage within a preponderance of evidence standard against an accuser. It’s hard to imagine how that standard could be met in the known reparations case.

It’s no wonder, then, that reparation advocates pursue political means. For example, the municipal government of Oakland has empaneled a group of bureaucrats to figure out how to disburse reparations funds. I don’t remember California being a slave state or host to Andrew Jackson cheerleaders after the Trail of Tears. Maybe a handful of Jim Crow politicians from Alabama migrated to the Sunshine State after the Civil Rights Act. I cannot say.

The idea of righting wrongs by identifying accuser and accused—based on specific acts and injuries—is kind of important to the “foundations of the liberal order.” Otherwise, as some commenters have warned, we could spend eternity having European descendants seeking reparations from descendants of the Barbary Pirate Slave Trade, or American blacks seeking reparations from the descendants of West African slave mongers, and so on, forever.

Nationwide, it’s not clear how, when US federal debt now stands at $33 trillion, saddling the unborn with more debt adequately meets the demands of justice. Remember that 50.1 percent of those receiving welfare benefits such as SNAP, TANF, and rental subsidies are black, even though blacks only make up about 13 percent of the US population.

A decade ago, policy analysts Rachel Sheffield and Robert Rector recognized the fiftieth anniversary of The Great Society, that is, the genesis of the modern American welfare state. They write:

In his January 1964 State of the Union address, President Lyndon Johnson proclaimed, “This administration today, here and now, declares unconditional war on poverty in America.” In the 50 years since that time, U.S. taxpayers have spent over $22 trillion on anti-poverty programs. Adjusted for inflation, this spending (which does not include Social Security or Medicare) is three times the cost of all U.S. military wars since the American Revolution.

Over the last 60 years, when one considers relative population size, blacks have received a wildly disproportionate amount of those trillions. If ongoing welfare assistance can be viewed as a form of reparations, shouldn’t six decades of it account for something?

But there is another big problem for the known reparations case. Ironically, it relates to the Florida controversy regarding a claim curriculum designers made that former slaves somehow benefited from their servitude. Whether this is what the designers intended is arguable, of course. What’s inarguable, though, is that the descendants of slaves indeed benefitted from their forbear’s servitude. That’s because, in the absence of the transatlantic slave trade, subsequent generations would still live mostly in sub-Saharan Africa.

Sub-saharan African GDP per capita is about $1,631. Black per capita GDP in the US is about 20 times that. It’s no wonder Africans flee to the US when they can, but not the reverse. This fact constrains reparations advocates to relativize their case, which is to try to make it about so-called “equity.”

Otherwise, the known case is based on the fallacy of hypostatization.

The Unknown Case

Undoubtedly, since Emancipation, blacks and natives continued to be mistreated. From living under Jim Crow to being disproportionately affected by the Drug War and carceral state, many blacks have been prevented from participating in certain institutional settings, both public and private. This has lessened decade by decade. Arguably, since the Trail of Tears, Native Americans have been treated as bad or worse, with most having been shunted into reservations and welfare dependency, plagued by alcoholism and woe. Despite all manner of policies and public support designed to assist both of these groups, the results are mixed at best. Yet many argue more should be done—where more almost always means more money, more programs, and therefore more wealth redistribution.

But what is the limiting principle?

For the sake of cosmic justice, let's assume that A) political means of determining reparations is still justifiable and that B) Native Americans and Black Americans are still entitled to some form of recompense. Is it possible to award reparations without unjustly punishing the living for the sins of the dead, or building one’s case on something so nebulous as systemic racism?

Consider that almost one-third of the US landmass is controlled by the federal government and that there is sufficient proof that much of this land was ill-gotten.

We would probably want to factor out any military bases, crown-jewel national parks, or other lands absolutely essential to the current government functions, recognizing that each instance is debatable.

To make this case through a thought experiment, let’s stipulate that General Sherman’s promise of “40 acres and a mule” extends to the living descendants of slaves and that a similar calculation can be applied to natives. Federal officials could determine a lottery or similar process in which each black or native person would be allotted a voucher for the monetary equivalent of 10 acres, or $14,470, according to GPT-4’s envelope calculation.

Why not 40?

This is a rough estimate, but if we use the land value from 1865 compared to the 2021 value, adjusted for inflation, we can determine how many 2021 acres are equivalent in value to 40 1865 acres, which was worth about $5 per acre on average. If we were to equate the promise of "40 acres" in 1865 based on an estimated value of federal land at around $1,000 per acre in today’s dollars, the award would be roughly equivalent in value to 12.42 acres on average. 

Let’s overlook that Sherman only promised this allocation per family and not for subsequent generations—it seems more than reasonable to allocate the average value of 10 acres to each living descendant. It would take a more deliberative inquiry to determine the value of these lands, which are not homogenous. So keep in mind that the land voucher would offer an equal distribution, even as some people would claim larger or smaller parcels depending on variable land values. In other words, if everyone got a voucher worth the dollar equivalent of the 10-acre average, one might claim a big parcel of desert land or a small parcel of lakefront property. 

In short, given that there are 640 million acres of federal land in the US, blacks and natives could expect to claim as much as 539 million acres or five-sixths of federal land. All claimants would be free to homestead or sell their parcels. According to GPT-4—after excluding military and essential government lands—approximately 413.4 million acres of the 628.6 million acres can be considered habitable. This equates to about 66 percent of federal land.

As these lands develop, their value will increase. Some claimants would likely sell their property and spend the proceeds immediately, which would be more akin to eating the seed corn. Others would hold their titles and attempt to increase their land values. 

Some might argue that parceling out federal lands this way is impracticable, or that the total value of that land exceeds what living descendants of slavery and mistreatment should expect. Both of these critiques should be taken seriously.

Still, parceling out federal land is probably the most reasonable way the federal government could assume responsibility for federal authorities’ role in mistreating blacks and natives—without punishing the living (more) through debt-spending, taxation, and redistribution. Taxing Americans for reparations payments would unjustly include more than whites, after all. Most whites are not descendants of slave owners, Jim Crow mayors, Yankee city planners, or bankers with red pens. Some estimates suggest that at the height of American slavery, around 1.4 million 385,000 families owned slaves in a nation of about 31 million people. Based on these rough figures, one could estimate that less than 5 percent around 7 percent of all Americans in 1860 were part of slave-owning families. (The rest were sharecroppers or mill workers.)

Further, many whites are Irish, Italians, or Eastern Europeans who landed at Ellis Island at various times. Relative newcomers such as Subcontinental Asians, East Asians, Persians, Arabs, Jews, Africans, and others have not benefited from the dark legacies of white oppression of blacks—and are often accused of being “white adjacent.” Yet to exempt these groups by charging a ‘white tax’ would also be deeply offensive to liberal justice, Brianna Joy Gray notwithstanding.

The time has come for a final racial reconciliation in America. If reparations are to be paid by the living to the descendants of dead victims, land grants might well be the only way to heal a nation and preserve justice. 

As time passes, however, even this unknown case weakens.