[I]f God wills that [this mighty scourge of war] continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword . . . [then] "the judgments of the Lord are true and righteous altogether."[1]
“No justice, no peace.”[2]
Seven minutes and forty-six seconds.[3] That is the amount of time George Floyd’s neck was pinned under the knee of Officer Derek Chauvin. The term white supremacist can be understood as a white cop snuffing the life out of a Black man for no reason. White supremacy[4] can be understood as the three other officers who saw it happening and did nothing.[5] Seven minutes and forty-six seconds. That is the amount of time it took for America to change forever and begin the next step in its unending pilgrimage of justice. Out of the tragic death of George Floyd came civic engagement the likes of which had not been seen since the civil rights movement—a global pandemic notwithstanding.[6] And in the aftermath of overwhelmingly lawful and respectful protests,[7] it appears as if America may finally be ready to have a meaningful conversation about reparations.[8]
Unfortunately, the conversation over reparations has been hampered by an unsatisfying, yet persistent, argument that they are not supported by “a persuasive case for converting the liberal Anglo-American tradition of justice into a system of racial apportionment.”[9] That is, reparations are somehow inapposite to the Anglo-American legal tradition and thus indefensible as a means of restoring victims. Putting aside the fact that reparations have been used at least four times in American history,[10] this line of reasoning operates under the erroneous assumption that the availability of justice should be determined by the presence or absence of a legally recognized cause of action.
Writing in the mid-80’s, Professor Mari Matsuda addressed this pesky, persistent argument by “establish[ing] a doctrinal basis for claims of reparations.”[11] She demonstrated that reparations “mak[e] sense to the legal mind” because they are analogous to the manner in which our society has chosen to compensate victims of torts.[12] Though compelling, I believe a contract theory of reparations may ultimately provide a more concrete doctrinal basis while at the same time offering certain concessions to both sides of the reparations debate.
The theory is really quite simple. With the adoption of the reconstruction amendments, former enslaved individuals were brought into the fold of our social contract—the American Contract—and they were guaranteed certain unalienable rights.[13] Chief among these was “the equal protection of the laws.”[14] Ever since, the United States has been in breach of that contract through its creation and maintenance of both de jure and de facto systems of white supremacy.[15] Given this ongoing breach and its intergenerational consequences, damages are owed. Principles of contract law suggest that compensation should come in the form of expectation damages. Thus, under a contract theory of reparations, victims of this breach are “entitled to the benefit [of their] bargain and should be placed, as nearly as is possible through an award of money damages, in the position [they] would have been in had the [United States] fully performed the contract.”[16]
In sum, reparations are nothing less than expectation damages for a longstanding breach of the American Contract, placing Black Americans in the position that they would have been in had the Nation upheld its end of the bargain.[17] This is not to say that victims now have a cause of action under contract law. Nor is it to say that monetary expectation damages are always the optimal form of compensating victims of racial injustice. It is to say, however, that reparations are a moral imperative insofar as our legal traditions reflect a moral code. Each day that lapses is an affront to those traditions.
Of course, the devil will be in the details. A robust exposition of this theory will require an explication of the nature and scope of the American Contract, the parties, the breach, and the remedies. That is for another time. And yet, some implications of this theory are readily apparent. This alternate theory of reparations naturally walks a middle path because it will appear to some to be both overinclusive and underinclusive with respect to traditional theories of reparations. For example, this theory is underinclusive in that it only compensates for the horror of enslavement insofar as post-reconstruction white supremacy is a natural incident of that original sin. This is because one would be hard-pressed to argue that enslaved individuals were party to the American Contract prior to the reconstruction.[18] On the other hand, by severing reparations from enslavement, the theory is overinclusive because it admits any Black citizen into the restorative fold regardless of their connection to slavery.
If you think contract law is too far afield to draw parallels to reparations, think again. The underlying moral imperative of this theory was laid out far above my poor power to add or detract in one of the most consequential orations in American history.[19] I leave the reader with those canonical words:
When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the "unalienable Rights" of "Life, Liberty and the pursuit of Happiness." It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked "insufficient funds." But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.[20]
[*] This blog post is an adaptation from a work in progress that engages with the theory on an expansive level. For inquiries please contact the author at nka2121@columbia.edu.
[**] J.D. candidate, Columbia Law School. B.A. in Government and Economics, Claremont McKenna College. Intergenerational beneficiary of reparations. The author is grateful for the excellent insight and comments of Christopher Nadon, Steve Calandrillo, Phillip Bobbitt, Colleen Shanahan, and Tyler Jankauskas. With special thanks to storyteller W. Kamau Bell whose focus on the family unit helps vivify the generational aspects of wealth maldistribution resulting from race-based systems of inequality.
[1] Abraham Lincoln, Second Inaugural Address (Mar. 4, 1865).
[2] This is a slogan that is widely used in protest of violence against African-Americans and other racially-motivated crimes, and was especially popular in the 1980s. See Ben Zimmer, No Justice, No Peace, Language Log (July 15, 2013, 10:13 AM), https://languagelog.ldc.upenn.edu/nll/?p=5249 [https://perma.cc/S52J-79CZ].
[3] While it was initially reported that Chauvin’s knee was on George Floyd’s neck for eight minutes and forty-six seconds, the Associated Press has reported that the actual time was seven minutes and forty-six second. See Associated Press, Prosecutors Say Officer Had Knee on George Floyd’s Neck for 7:46 rather than 8:46, LA Times (June 18, 2020), https://www.latimes.com/world-nation/story/2020-06-18/derek-chauvin-had-knee-george-floyd-neck-746-rather-than-846#:~:text=Minnesota%20prosecutors%20acknowledged%20Wednesday%20that,criminal%20case%20against%20four%20officers. The distinction is minor since permanent brain damage begins after just four minutes of oxygen deprivation. See CPR - Adult and Child after Onset of Puberty, MedlinePlus, https://medlineplus.gov/ency/article/000013.htm#:~:text=Permanent%20brain%20damage%20begins%20after,4%20to%206%20minutes%20later [https://perma.cc/3S78-WBQT] (last updated Feb. 8, 2021).
[4] See Frances Lee Ansley, Stirring the Ashes: Race, Class, and the Future of Civil Rights Scholarship, 74 Cornell L. Rev. 993, 1024 n.129 (1989) (“By ‘white supremacy’ I do not mean to allude only to the self-conscious racism of white supremacist hate groups. I refer instead to a political, economic and cultural system in which whites overwhelmingly control power and material resources”).
[5] It matters not that some of the officers were people of color for in that moment they were not protecting victims, solving crime, or defending the vulnerable. In that moment, they were policing the boundaries of a structure—a hierarchy of oppression. A hierarchy that keeps certain people out of certain neighborhoods, values certain types of property over others, and consistently favors one group of people over any other group. See, e.g., Abdallah Fayyad, The Criminalization of Gentrifying Neighborhoods, The Atlantic (Dec. 21, 2017), https://www.theatlantic.com/politics/archive/2017/12/the-criminalization-of-gentrifying-neighborhoods/548837/ [https://perma.cc/8Y97-5M7N] (detailing the role police play in gentrification).
[6] See Sarah McCammon & Karen Grigsby Bates, Similarities and Differences of George Floyd Protests and the Civil Rights Movement, NPR (June 4, 2020, 4:19 PM), https://www.npr.org/2020/06/04/869952367/similarities-and-differences-of-george-floyd-protests-and-the-civil-rights-movem [https://perma.cc/5XC9-UNHH] (explaining how the George Floyd protests “fe[lt] like 1968 on steroids”).
[7] See Jonathan Ernst, 'Not By Accident': False 'Thug' Narratives Have Long Been Used to Discredit Civil Rights Movements, NBC News (Sept. 27, 2020, 6:19 AM), https://www.nbcnews.com/news/us-news/not-accident-false-thug-narratives-have-long-been-used-discredit-n1240509 [https://perma.cc/SPV7-4SYB] (“Of the more than 7,750 Black Lives Matter demonstrations held across the country in the last several months, 93 percent have been peaceful”) (citing The Armed Conflict Location & Event Data Project, Demonstrations & Political Violence in America (2020), https://acleddata.com/acleddatanew/wp-content/uploads/2020/09/ACLED_USDataReview_Sum2020_SeptWebPDF_HiRes.pdf[https://perma.cc/S7SM-CJWA]). The recent siege on the Capitol Building demonstrates a stark contrast between police perceptions of the dangers posed by Black groups versus white groups.
[8] Just recently, “California Gov[ernor] Gavin Newsom . . . signed a bill establishing a task force to study and make recommendations on reparations for slavery.” Madeline Holcombe, California Passes a First-of-its-kind Law to Consider Reparations for Slavery, CNN, https://www.cnn.com/2020/10/01/us/california-bill-slavery-reparations-trnd/index.html [https://perma.cc/PS9N-V5KH] (last updated Oct. 1, 2020, 8:27 AM).
[9] Kevin D. Williamson, The Case Against Reparations, National Review (May 24, 2014, 6:00 AM), https://www.nationalreview.com/2014/05/case-against-reparations-kevin-d-williamson/.
[10] See Dylan Matthews, Six Times Victims Have Received Reparations—Including Four in the US, VOX (May 23, 2014, 11:20 AM), https://www.vox.com/2014/5/23/5741352/six-times-victims-have-received-reparations-including-four-in-the-us; Adeel Hassan & Jack Healy, America Has Tried Reparations Before. Here Is How It Went, NY Times (June 19, 2019), https://www.nytimes.com/2019/06/19/us/reparations-slavery.html.
[11] Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 374 (1987).
[12] See id. at 374–88.
[13] Recognizing the arguments may arise that the social contract is an imperfect vehicle for my theory, it is important to note that the primary purpose of this post is to offer doctrinal support for reparations.
[14] U.S. Const. amend. XIV, § 1.
[15] The discriminatory distribution of federal farm loans offers a stark, yet largely underpublicized, example of post-reconstruction systems of oppression that continue to strip Black land owners of their wealth. See generally Pete Daniel, African American Farmers and Civil Rights, 73 J. of Southern History 3 (2007); See also Nikole Hannah-Jones, 1619 Episode 5: The Land of our Fathers, N.Y. Times (Oct. 4 2019), https://www.nytimes.com/2019/10/04/podcasts/1619-slavery-sugar-farm-land.html [https://perma.cc/9RMP-2HNE].
[16] Richard A. Lord, Williston on Contracts § 64:1 (4th ed.) (emphasis added). The Uniform Commercial Code reads as follows: “The remedies provided by this Act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this Act or by other rule of law.” U.C.C. § 1-305 (Am. L. Inst. & Unif. L. Comm’n 1999).
[17] In my research, the only scholarship that acknowledges the stark similarities between reparations and expectations damages deals with breaches of international law. This is likely so because reparations have often been used in international politics, and international law is often influenced by principles of contract law. See Eric A. Posner and Alan O. Sykes, Efficient Breach of International Law: Optimal Remedies, “Legalized Noncompliance,” and Related Issues, 110 Mich L. Rev 243, 264, 275 (2011) (“An ideal remedy [for breach of international law] is monetary reparations, which are analogous to expectation damages . . . . [S]tates have an implicit option to perform or pay reparations [to other states], just as contract parties under domestic law have an implicit option to perform or pay expectation damages”).
[18] See Phillip Bobbitt, Constitutional Fate 87 (1982). C.f. Akhil Amar, America’s Unwritten Constitution 144 (2012) (“Free blacks, however, were a different story”).
[19] See Amar, supra note 18, at 247 (“Wherever the written Constitution is fairly susceptible to different interpretations, interpreters should hesitate . . . to embrace any reading that would violate the clear letter and spirit of these [] canonical texts.”) (explaining how Dr. King’s “I Have a Dream Speech” is a canonical text that forms part of America’s symbolic Constitution). See also Philip Bobbitt, The Constitutional Canon, in Legal Canons 400 (Sanford Levinson & J.M. Balkin eds.; New York: New York University Press, 2000) (making the argument for constitutional canons).
[20] Dr. Martin Luther King, Jr., I Have a Dream Speech (Aug. 28, 1963). But see David Frum, The Impossibility of Reparations, The Atlantic (June 3, 2014), https://www.theatlantic.com/business/archive/2014/06/the-impossibility-of-reparations/372041/ [https://perma.cc/BR56-WS36] (“Martin Luther King spoke of the words of the Declaration of Independence as ‘promissory note’ on which the nation had defaulted. He meant this as a metaphor, not a financial analysis. [Reparations proponents have] taken him literally.”).