To be black in the United States is to have been dealt a bad hand. African Americans are, among other things, poorer, less educated and less healthy than their white compatriots. While the underlying reasons are myriad, there is no doubt that the primary root cause is slavery. Immediately before the Civil War, almost 90% of the American black population was enslaved, which means that there may not currently be a single African American with ancestors in the antebellum United States who is not descended from a slave. Even after the war, formal legal equality was achieved only when the Supreme Court finally struck down the abhorrent system of segregation in 1965.

The condition of American blacks would be incalculably better had slavery never existed on US soil, leading to occasional talk of reparations. In 1999, one group called for an indemnity of no less than $777 trillion, or more than 31 times the planet’s entire GDP for that year (in fairness, the amount was to be paid not just by the US but by the entire Western world). Since these kinds of outlandish demands have been the public image of the calls for reparations, it was with skepticism that I approached “The Case for Reparations,” a much-talked about cover piece from the June issue of The Atlantic authored by Ta-Nehisi Coates. To my surprise, the 16,000-word essay was a delight. In elegant prose and with a masterful command of the historical facts, Coates argues that today’s problems are due not merely to slavery but also to racist modern-day government policy.

So You Wanna Buy a House?

The article describes the practice of “redlining,” under which the Federal Housing Administration refused to insure mortgages in neighbourhoods that failed to meet certain criteria—which, curiously, black areas never did. It thereby locked African Americans out of mainstream financing and pushed them toward alternatives such as “contract buying,” under which title passed to the borrower only once the loan was repaid. If he missed just one payment, a borrower could be expelled without compensation and lose the money he put down. The same property could thus be sold and repossessed multiple times in quick succession. The resulting scar is still visible today: Coates cites research showing that in Chicago, “black families making $100,000 typically live in the kinds of neighborhoods inhabited by white families making $30,000.” Other examples of state-sponsored discrimination include exempting predominantly black trades from Social Security and unemployment benefits (though not, presumably, from the corresponding taxes).

Coates’ call for “reparations” uses a peculiar definition of the word: “the full acceptance of our collective biography and its consequences.” In other words, “a national reckoning” that will help Americans understand the darker side of their history. I would enthusiastically support such a process. It could bring about an America where a politician who claimed that the Founding Fathers “worked tirelessly to end slavery” would be laughed out of office; where a black president is criticized on his appalling record rather than ludicrous and irrelevant claims regarding his ancestry and religion; and where the 42% of white people who still associate the Confederate flag with “southern pride” instead of racism finally see the light.

While Coates’ definition of reparations is something of a cop-out, in several follow-up pieces, he asserts that blacks are owed financial compensation, which is consistent with the more usual meaning. He does not, however, argue for reparations for slavery at large, which is best since the notion fails to pass the laugh test. Several rebuttals explain why, though frankly they are refuting a straw-man argument that Coates did not actually make. The gist of the case against such payments is that they are unworkable in practical terms—sorting out who would pay how much to whom would be impossible—and devoid of any legal or moral basis. Slavery’s perpetrators and victims are long dead and all that can be done is to fully acknowledge that they are part of the legacy of the past.

L’État, c’est qui?

Coates’ actual case is nuanced, arguing instead for reparations to be paid to today’s blacks for the harms that they have suffered due to policies much more recent than slavery. While his argument is multi-faceted, two key points stand out. First, he thinks that the funds should be paid from the US treasury (and so by all taxpayers of whatever colour). Second, he notes that many of the victims of these policies, such as those he profiles in his article, are still alive and have suffered clearly identifiable and personal harm.

Coates’ argument that reparations should be paid out of the public purse is as follows:

The governments of the United States of America—local, state and federal—are deeply implicated in enslavement, Jim Crow, redlining, New Deal racism, terrorism, ghettoization, housing segregation. The fact that one’s ancestors were not slave-traders or that one arrived here in 1980 is irrelevant. I did not live in New York when the city railroaded the Central Park Five. But my tax dollars will pay for the settlement. That is because a state is more than the natural lives, or occupancy, of its citizens.

“When a person is harmed in some way, the appropriate mechanism for redress is not a program of reparations, but instead legal action by that individual against the transgressor.”

Compare a man who immigrated to Denver in 2012 to a white resident of Atlanta whose family tree includes slaveholders. It is difficult to think of any benefits that an immigrant to an area where slavery never existed—and only 5% of the population is black—could have obtained from racist practices such as redlining. In contrast, the Atlantan’s situation would likely be very different had his ancestors never owned other human beings. These are extreme examples, but the point is that there is massive variation in the degree to which Americans are better off thanks to state discrimination. To make them all liable and to base the extent of their liability on the amount of taxes that they pay makes little sense.

Coates ignores the obvious—and preferable—alternative: Hold the people who committed the wrongdoing accountable. Make them liable for the harm that they caused. The Central Park Five case that Coates cites is a perfect example: Five black and Hispanic youths wrongfully convicted of raping a Central Park jogger who settled a lawsuit against New York City for $40 million. But why should the city’s taxpayers bear that burden, rather than the police officers and the prosecutors who steamrolled the innocent? Why shouldn’t the actual wrongdoers be accountable both financially and, if appropriate, criminally? That should be the starting point for this discussion.

Had Coates explained that the architects of redlining are long dead and as an exception we should therefore consider the imperfect alternative of drawing on public funds, his position would be defensible. But his argument is instead that something called “the state” is responsible and that everyone who pays taxes to the US treasury should therefore be liable in proportion to his or her tax bill. That position is untenable.

Coates makes the second point I mention above—that the victims of racism are still alive—to defuse the objection that everyone who deserves compensation is dead. After reading his piece, while I think that Coates is mistaken as to who should pay for reparations, in my view he is on solid ground as to who should receive them. But he fails to realize one consequence of his insight that injured persons remain alive: When a person is harmed in some way, the appropriate mechanism for redress is not a program of reparations, but instead legal action by that individual against the transgressor. In other words, the people who were redlined out of decent neighbourhoods should sue those who wronged them.

Justice for All

The obvious objection to this suggestion is that a lawsuit—especially against the government—will be slow and expensive. The best defence strategy would not be some legal doctrine, but simply dragging out the process until the aging plaintiffs run out of either money or time. And the obvious solution is to simplify and streamline the legal system so that any adult can, without professional assistance or any unusual amount of time, money or intelligence, seek justice against anyone else.

I am fully aware of the magnitude of what I am proposing: “Just fix the legal system” is only slightly less utopian than “Just stop the violence.” But making up for centuries of discrimination, injustice and abuse is an aspiration born of big dreams. So why not dream equally big when crafting the solution? Rebuilding the American legal system to work for everyone would be a massive undertaking, but with an equally massive payoff. In a world where any competent adult could bring a lawsuit to a successful conclusion—no matter who the defendant—the deep-pocketed would no longer act with de facto impunity, secure in the knowledge that to take them on in court would be self-defeating madness. Under the current system, four lawyers in five admit to turning away clients if their case is not cost-effective and state that high costs force them to settle cases that, on the merits, should go to trial. The biggest beneficiaries of a legal process that worked would be the poor of all colours, who would have a means to seek redress against government, big business or anyone else who injured them.

The high cost of a lawsuit is not a problem only for those seeking their day in court. Lawsuits filed by wealthy plaintiffs exclusively to silence their critics by forcing expensive litigation upon them are so common that they have been given a catchy acronym: SLAPP (Strategic lawsuit against public participation). A system in which both prosecuting and defending a case was relatively simple could eliminate such tactics—indeed, it would mitigate the risk of frivolous lawsuits in general.

At its core, the case that Ta-Nehisi Coates makes for reparations is a case for justice. And if it is justice that is needed, then the best solution is to make it available to the greatest number possible so that all wrongs—of whatever nature and inflicted on whomever—have a real chance of being righted. The best way to achieve that objective is not yet another top-down government program, but a sweeping overhaul of the mechanism by which individuals themselves seek justice. Fix the legal system, and you fix a lot more than Coates ever imagined.

Adam Allouba is a business lawyer based in Montreal and a graduate of the McGill University Faculty of Law. He also holds a B.A. and an M.A. in political science from McGill.

From the same author

▪ The Great War's Legacy, a Century On
(no 323 – June 15, 2014)

▪ Is Justice Compatible with the Rule of Law?
(no 322 – May 15, 2014)

▪ The 2014 Quebec Election: This Time, It Mattered
(no 321 – April 15, 2014)

▪ The Belle Knox Controversy and How to Make the World a Better Place
(no 320 – March 15, 2014)

▪ Civil Forfeiture Laws: Legalizing Theft?
(no 319 – February 15, 2014)

▪ More...

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