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Aren't We Already Paying Reparations? (And Isn't that Illegal?)

Updated: May 1


Reparations

What Are Reparations?

Reparations take on a different meaning for different people. Seemingly the most prevalent meaning is some lump sum of cash to African-Americans to compensate for slavery and other injustices perpetuated by society. Is this the only way to repair the damage brought on by slavery and other acts that harmed Black people throughout history?


I think we have to start with some baseline definition to come to an answer. New Oxford American Dictionary (Yes, I'm an iPhone user) defines reparations as "The making of amends for the wrong one has done by paying money or otherwise helping those who have been wronged. Next, Webster defines it as "The act of making amends, offering expiation, or giving satisfaction for a wrong or injury”. The American Heritage Dictionary suggest reparations are “The act or process of making amends for a wrong" or "something done or money paid to make amends or compensate for a wrong”. For good measure I also consulted the trusty Black's Law Dictionary which gives a similar definition, "Compensation for an injury or wrong”.


Of the five definitions, four include the idea of making amends. This doesn't do a lot except lead us to the question: How? Only two of the definitions offer any insight. One suggests either paying money or otherwise helping. The other, from Black's requires compensation but does not describe how the compensation should occur. Clearly, any form of reparations considered in the U.S. is an attempt at "making amends" or "satisfying" the Black community for the wrongs of the past. Using the definitions found, it seems the way to do this is through compensation of some sort. There is no explicit requirement under any definition I can find that requires reparations be direct payments of cash or the equivalent.


According to these definitions, we are paying and have been paying reparations for decades. These payments began at least as early as 1961 with Executive Order 10925. President Kennedy ordered at that time the Equal Employment Opportunity Commission be formed and that affirmative action be taken to close the gap on employment differences between whites and minorities. This was followed soon after by quotas which favored minorities in hiring and education placement. The result of affirmative action plans was higher employment and pay for Blacks. Additionally, it resulted in college admissions at a higher rate. In a study of 68,000 organizations, University of Chicago’s Jonathan Leonard found that affirmative action programs between the years of 1974 and 1980 increased minority employment share by approximately 36% compared to their white male counterparts.


In Tulsa, the city has set up multiple substantive programs aimed at helping the black community to heal and rebound from the events in 1921. Some of these programs aim at housing issues minorities in the Greenwood area face while others are aimed more toward the making amends for past wrongs (recall nearly every definition of reparations included making amends) such as grave searches for potential additional victims and studies of the tragic event itself. However, it seems these things, whether national attempts at reparations or local seem to fall short of what most people view as reparations. For this reason, we need to explore some of the reasons why cash payments are not feasible and additionally how they are prohibited under our constitution.


How Much Should We Pay?

In Blinn v. Nelson a person’s property was appropriated. The court ruled in this 1911 case - pre-Tulsa events of 1921- that where a person had failed to make a claim and the legislature had set out a limitation of one year, the limit was constitutional. In its opinion the court said that even though statutory limits may, in some cases, have unjust outcomes, "In the great majority of instances, no doubt, justice will be done."

In a Santa Clara School of Law faculty publication, Judge Wistrich of the U.S. District Court for the Central District of California lays out seven purposes for the statutes of limitation:

1. Promote repose

2. Minimize deterioration of evidence

3. Place defendants and plaintiffs on equal footing

4. Promote cultural values of diligence

5. Encourage prompt enforcement of substantive law

6. Avoid retrospective application of Contemporary standards

7. Reduce the volume of litigation

Of these seven reasons, all are relevant to why reparations in the form of direct compensation payments to individuals are not appropriate. One, however, is especially relevant in the context of reimbursing Tulsans for the losses incurred during the events of May 31, 1921. If we could all agree that direct, cash payments should be made then the next question would be" how much". Is it $25 per Tulsan? $25,000? $25 million? Is the payment for all Tulsans? All Black Tulsans? Only the Black Tulsans who were actually harmed by the events? Typically, in order to collect payment for some damages incurred; a plaintiff would need to show that damages occurred to them beyond some casual connection to the loss. That is, it needs to be shown that the person's actions that caused the damage are the proximate cause of the loss and that the alleged injured party was actually injured. Then the person who suffered the loss must show what it is that they lost. But who in Tulsa today can show they lost something in 1921?


Even if someone feels they could show such a loss, we end up on point number two from Judge Wistrich on deterioration of evidence. Even in normal circumstances, 100-year-old evidence is badly deteriorated and most witnesses are deceased. Here, it's even worse. A recent Netflix documentary on the events suggests there was a concerted effort to cover up the events including a lack of reporting on the incident. Indeed, if you speak with proponents of reparations in Tulsa, you're likely to find agreement on this theory. So, if it's true that evidence was either destroyed or never created through lack of reporting or teaching, then the case against reparations for deterioration of crucial evidence of the harm done becomes stronger.


If it’s impossible to calculate the damages from the loss of life and property then it’s impossible to come up with an equitable remedy. Additionally, if we cannot trace the decedents’ heirs, if we were somehow able to quantify any given loss, then it’s not possible to find the rightful payee of any damages that may be awarded. Tracking who is eligible to benefit from the losses is equally as difficult as quantifying the loss itself for all the reasons already described.


Litigation and Injustice

This leads directly to point number seven. The volume of litigation it would take to uncover scant evidence is mind boggling. Not only would our courts be overwhelmed with claims for reparations, the likely outcome because of deterioration would be an inability to adequately show a loss, show the proximate cause of that loss or show that the plaintiff has suffered harm as a result of the loss.

Another important statute of limitations consideration is retrospective application of contemporary standards. Societal norms change over time. This is especially true of the U.S. where we are consistently pushing toward living the values and principles set forth in our constitution. To look back a century to a time when we were less apt to uphold the values enshrined in the constitution and then hold to account the modern-day citizens who adhere much more stringently to them would, in itself, be an injustice. Of course, the argument from Whiteness as Property would be that the payments should be viewed as distributive justice rather than corrective justice. That is to say that the reparations should not be viewed as inflicting some kind of punishment on an individual or group but rather distributing an equitable outcome. That’s nonsense of course, and a misnomer. Resources are finite and when resources are taken from one group and given to another, no matter what you choose to call it, this is inflicting harm on the group taken from. Calling it “distributive justice” doesn’t change the fact that the resources taken from a given group immediately push it back to the realm of corrective justice (which it always was).


Legality

Given that it would be nearly impossible to litigate tens of thousands of reparations claims locally in regard to the 1921 events in Tulsa, and millions of claims nationwide for past harms, the only solution would seem to be legislation which allocates blame for the harms suffered to a certain group and awarding the harmed group some compensation for those harms. However, Article I §3 Clause 9 reads: “No Bill of Attainder or ex post facto Law shall be passed.” What does this mean? U.S. v. Lovett helps clarify, “a bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the constitution, bills of attainder include bills of pains and penalties”. The court also describes what is a bill of attainder, “Legislative acts, no matter what their form, that apply to an individual or to easily ascertainable members of a group (read: white citizens) in such a way as to inflict punishment on them without judicial trials are bills of attainder prohibited by the Constitution”.

So, we find ourselves with no legal option to address the wrongs of the events of 1921. Individual litigation is a futile proposition and inflicting punishment (let’s not kid ourselves, taking money from a group of people and giving it to another group of people is punishment) on a group without litigating the issues in court is prohibited by our constitution. And keep in mind that the constitutional prohibition is the second block. We still must respect the statutes of limitation on their face even if it were feasible, or reasonable to believe, that individual litigation was possible.


The events that occurred in 1921 were tragic. Undoubtedly, thirty-six people lost their lives and some more extreme estimates put that number closer to 300 lives lost. Billions of dollars in losses in today’s currency were accrued. All of this from a community who had, against all odds, built a thriving, one-of-a-kind economy in Tulsa. There is no doubt that we all have learned many lessons from this injustice. However, our system simply does not have a mechanism for adjudicating centuries old claims. Some might argue it should. It is, in fact, illegal and in the case of reparations, unconstitutional. For the reasons I’ve outlined, I believe the harm outweighs the benefit. Apparently, so did the framers of our constitution.

A.G. Miller is a father, husband and community member who resides in Tulsa, OK. He is an Army combat veteran, former police officer, and business owner who graduated summa cum laude with B.S. in business management and currently attends University of Tulsa College of Law where he will graduate with a J.D. in 2022.

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual." -Thomas Jefferson
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