- The Washington Times - Friday, January 30, 2004

At last the highly charged issue of reparations for the descendants of slaves has had its day in court — and the court threw it back out again.

No big surprise there. Not if you understand how courts work.

Nor should you expect that judgment to be the end of the reparations issue. Not if you understand how soul-deep passions run on both sides of this endless argument.

I am a descendant of American slaves, but I was neither surprised nor disappointed by U.S. District Judge Charles R. Norgle’s ruling in Chicago Monday (Jan. 26). I can’t be disappointed when I’ve failed to receive something I didn’t expect to get in the first place.

I certainly didn’t expect to receive reparations from this particular lawsuit. Even a novice, armchair lawyer like me could see that it simply failed to pass the most fundamental tests of law and lawsuits: Who inflicted what damages on whom and, if so, who deserves to be compensated for the damage — and with how much in dollars and cents worth of damages, actual or punitive?

The law loves specificity. As Judge Norgle eloquently explained in his 75-page opinion, the suit failed to allege a specific connection between the slave-descendant plaintiffs on whose behalf the suit was filed and the companies it named as defendants.

This particular suit, first filed in U.S. District Court in New York in 2002 and later moved to Chicago, names companies like the Lehman Brothers brokerage firm, Aetna Insurance and R.J. Reynolds Tobacco, saying they or their corporate ancestors made money off slavery.

In some cases, that historical culpability is not disputed. When Deadria Farmer-Paellmann, the former law student who filed the original suit, asked Aetna for documents on its role in insuring slaves, the company provided them. FleetBoston is a successor to another bank which it says was founded by a Rhode Island slave trader.

Even so, these defendant companies and others argue that, even if they were connected to slavery in some way, they are very different companies today. Besides, even if some guilt is established, who gets paid? Who of us among the current generation of slavery descendants would deserve to receive the damages?

Contrary to popular myth, there is no precedent in American courts for damages to be awarded in this way to a class of historical victims decades or centuries after the fact. Believe me, I have checked.

For example, contrary to the widely held myth, some Jews won compensation for the Holocaust and some Japanese-Americans for their internment during World War II, but neither won their cases in court. European governments and companies agreed to settle with some Nazi-era slave laborers in the late 1990s under diplomatic pressure from the United States. And Congress passed legislation to compensate surviving Japanese-American internees in 1988, but not their offspring. Both cases were won in the court of public opinion, not courts of law and compensation was limited to the actual victims, not their descendants.

Native American Indian tribes can make such historical claims, provided they have treaties to back them up. Unfortunately, our proverbial “40 acres and a mule” was an attractive piece of political rhetorical in the post-Civil War era, not an actual contract. As Martin Luther King Jr., said in his “I Have a Dream” speech, freed slaves were handed only a symbolic “promissory note that has been returned marked ‘insufficient funds.’ ”

Judge Norgle’s ruling came, ironically, “without prejudice,” a legal term that means plaintiffs can try again if they can make a stronger case. In the meantime, he advised that this issue is best settled in the legislative arena, not the courts.

I agree. Even if a court were to decide reparations should be awarded to today’s slavery descendants as a class, it would not end the argument. It would only begin a bigger argument, among black folks as much as anyone else, as to how the compensation would be dispersed.

The legislatures are the best places to work out whether reparations should be paid and how. For example, the state of California and the city of Chicago have passed laws in the past two years requiring any insurance company that contracts with their governments to provide documentation of any associations with slavery.

But the legislative process does not end the argument either. It only begins larger ones about how reparations could make more than a dent in black America’s biggest problems: crime, illiteracy, joblessness and child poverty rates.

And that, to me, is the most troubling aspect of the endless arguments about reparations. They keep us black Americans focused too narrowly on what white people need to do to save black America instead of what we black Americans should be doing to save ourselves.

Clarence Page is nationally syndicated columnist.


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