The Point of Reparations

By Ryan Very, Legal Fellow, ACLU of Pennsylvania


In the past, the American Civil Liberties Union has supported proposed federal legislation that would recommend methods of monetary redress to African-Americans for slavery. Opponents of these ‘reparations’ commonly argue against them on the grounds that no person alive today was alive during slavery. A contemporary obligation to pay reparations would attribute “inherited guilt” to descendants of slaveholders, or so opponents maintain, and that would be preposterous.

These opponents mistakenly assume that reparations claims are derivative claims (i.e. designed to address wrongs that happened to other people long ago) that address private wrongs (i.e. wrongs between individuals). Reparations claims should not be viewed as derivative claims that address private wrongs but as claims that address the government’s continuing failure, as a matter of policy, to rectify slavery’s inequitable systemic legacy.

American racial subjugation hardly ended with ratification of the 13th, 14th, and 15th Amendments. President Lincoln’s successor, Andrew Johnson, was an open white supremacist who supported state governments’ establishment of “Black Codes” that coerced blacks back onto plantations. Jim Crow was sanctified by Plessy v. Ferguson in 1896 and was not dismantled until the latter half of the 20th century, which means that many African-Americans alive today lived under it. It was not until the Brown v. Board of Education decision of 1954 and the civil rights legislation of the 1960s that the federal government contemplated enforcing its “official” support of civil rights for blacks. After enduring 300 years of slavery and Jim Crow, an income gap continues to exist between African-Americans and their white counterparts, the wealth gap continues to expand, and federal agencies such as the Home Owners Loan Corporation and the Federal Housing Administration have “redlined” black neighborhoods by singling them out in order to deny them purchase loans and inflate their interest rates.

These wrongs are recent and have allowed the federal government to “reconfigure” racial subjugation so that it could survive the abolition of slavery. This is why reparations are not a matter of honoring debts incurred in the past, but a matter of holding the government accountable for its continuing perpetuation of racial inequality through its own policies. Arguments in favor of reparations need not hold descendants of slaveholders accountable for their ancestors, but may appeal to a principle that plays a basic role in American political thought and the ACLU’s mission to extend rights to segments of our population to which they have been traditionally denied.

This post is part of a series in honor of Black History Month.

This is a short version of an argument presented by my graduate school adviser and intellectual hero David Lyons in his new book Confronting Injustice: Moral History and Political Theory (Oxford, U.K.: Oxford University Press, 2013). See also his essay “Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow,” Boston University Law Review 84 (2004) 1375-1404.

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    By Ruben Botello, JD
    Founder, American Homeless Society

    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.” (U.S. Constitution,

    The above-quoted Preamble to our U.S. Constitution ordains and establishes a binding legal document of, by and for the founders of our nation and their Posterity including today’s and future U.S. generations:

    I. To form a more perfect Union,
    II. To establish Justice,
    III. To ensure domestic Tranquility,
    IV. To provide for the common defence,
    V. To promote the general Welfare, and
    VI. To secure the Blessings of Liberty to ourselves and our Posterity.

    “We the People” and future U.S. generations are constitutionally obligated, to work toward the above six goals, as Posterity and Good Citizens. Of the People, By the People and For the People, our government was established by our Constitution, to help us achieve these goals. The framers of our Constitution knew changes to this great document would be required, to achieve their stated goals, as time passed by. For example, “We the People” includes the least among us, i.e, our nation’s homeless struggling to survive on a daily basis, but why does liberty, equality and justice for all not apply to them? Why are the homeless not equally protected by our nation of laws?

    The Founders sought to form a more perfect Union, not a far-from-perfect Union wherein hundreds of thousands, if not millions of indigent men, women, children and entire families are forced to subsist on the streets and alleys of our cities and towns, and in our wilderness areas, in abject poverty and despair.

    Article V of our Constitution established the procedure for We the People to change or amend it. We need to amend our Constitution, in order to abolish homelessness — like slavery was abolished over 150 years ago — by force of law, now.

    The first 10 Amendments to our Constitution (Bill of Rights) were ratified, December 15, 1790, and the last Amendment was ratified, May 7, 1992. Our Constitution is not a dead, dying or idle document, it lives and breathes within us, as we conduct our day-to-day human affairs, in a civil and lawful manner in accordance with the laws enacted thereunder.

    Our Constitution must change when We the People fall far short of our Preamble, as it applies to all Americans, in the richest and most powerful nation on earth. The American Homeless Society (AHS) believes the only way homelessness will be abolished in the United States of America is by force of law.

    Thousands of government agencies, charities and individuals work hard, to stop the needless death, pain and suffering homeless people are forced to endure from day-to-day. These caring people have done a lot of good for the destitute, but few have been able to reduce homelessness in their target areas, to any significant degree.

    Most available homeless services are of a short-term or temporary nature. They help keep homeless people alive, but seldom is permanent housing provided these destitute individuals and families. Without housing, the able-bodied homeless among them are not likely to gain meaningful employment nor to otherwise get back on their feet, in any manner, shape or form.

    AHS appreciates the meeting of short-term homeless needs, but our advocacy group has never taken its eyes off the primary need of the homeless, i.e., housing. Regardless of income or ability to pay, everyone in the U.S. should have constitutional and therefore legal rights to housing and other fundamental human needs.

    President Abraham Lincoln led the drive to end slavery after the Civil War. His 1863 ‘Emancipation Proclamation’ was followed by the 13th Amendment of our U.S. Constitution that abolished (outlawed) slavery, but this and the other Constitution Amendments have not helped the homeless much, at all. A new Amendment is therefore needed, to abolish homelessness in America once and for all.

    Most of our nation’s homeless adults are U.S. citizens who are unemployed, underemployed and(or) unemployable. The majority of these indigent Americans are malnourished, unhealthy, poorly educated, unkempt and otherwise ill-prepared to gain meaningful employment in order to work their way out of homelessness, and there are multitudes of homeless children, teenagers, women, veterans, seniors and entire families with special problems that block them out of mainstream society, too.

    We the People have permitted all this homelessness to be institutionalized by our government. For many, homelessness is a very cruel ‘death sentence’ that leads destitute Americans into their early graves for no good or just cause whatsoever. Abolishing homelessness means housing everyone who needs and wants housing. It is abundantly clear only an Amendment to our Constitution will end homelessness throughout the United States of America.

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