Discharging A Debt

By Ellis Cose

possess several times more wealth than blacks. They believe that the majority of the difference — perhaps three-quarters of it — can be explained by America’s history of discrimination and “racialized” policies, beginning with the slave trade: “Slaves were, by law, not able to own property or accumulate assets. In contrast, no matter how poor whites were, they had the right — if they were males, that is … to buy land, enter into contracts, own businesses, and develop wealth assets that would build equity and economic self-sufficiency for themselves and their families.” Blacks, who could not accumulate such riches, also “confronted a world that systematically thwarted any attempts to economically better their lives.” This “inheritance of accumulated disadvantages over generations,” argue the authors, continues to undermine the economic well-being of African Americans. They see a strong (though not politically plausible) case for reparations for black Americans.

Burt Neuborn, a New York University law professor who worked on the Holocaust banking cases, thinks the litigation against the Swiss banks may provide a model for descendants of slaves. “The critical question,” he argued in the 2003 edition of the New York University Annual Survey of American Law, “is whether litigation seeking restitution of the unjust enrichment flowing from slavery can replicate the three crucial components of the Holocaust litigation: (1) the identification of massive wealth transfers to identifiable recipients that unjustly enriched the recipients; (2) a demonstration that the wealth transfers were unlawful; and (3) the ability to reverse the transfers by requiring restitution of unjustly acquired profits to identifiable victims.”

It is easy to prove, he points out, that wealth was unjustly transferred. And it’s even possible to make a case — under international law, perhaps — that the wealth transfers were illegal. The difficulty, as he sees it, is “the linking of identifiable victims with identifiable unjustly enriched beneficiaries.” One way to get around that, he says, is to point out that at the time when America should have put things right — at the time the slaves were freed — it did not choose to do so: “And since the passage of time renders it impossible to recapture that moment, the only just approach is to adopt political programs designed to cope with the lingering consequences of such a massive unjust enrichment of white America.”

That is the approach Randall Robinson essentially endorsed in The Debt, in which he argued for the creation of a government-funded trust that would support economic empowerment, civil rights advocacy, and education — with special efforts directed toward those black children most at risk. Just debating the proposal, suggested Robinson, would be good for America: “The catharsis occasioned by a full-scale reparations debate could … launch us with a critical mass into a surge of black self-discovery. … We could disinter a buried history, connect it to another more recent and mistold, and give it as a healing to the whole of our people, to the whole of America.”

Whether such a debate really would be “healing” is very much an open question. But

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