The Dangerous Groundswell for Black Reparations

Recent months have witnessed well organized efforts to institute multiple reparation programs to undo wrongs done to Black Americans over the tangled course of this nation's history. These claims fail on both legal and moral grounds.

Let's start with the legal. Reparations cannot be cured by simple legislation. Awarding them requires lawsuits brought against the proper defendants, who have a raft of substantive defenses. Thus, a suit against United States for the harms of slavery runs into the decisive objection that the antebellum federal government had limited powers, which did not include the power to either authorize, regulate, or abolish slavery in the states.

Slavery was abolished in many states from the get-go, such as those formed out of the Northwest Ordinance of 1787, Article 6, or abolished early on like Massachusetts (1783) or New York (1799-1827). But even where slavery did exist, suits for these losses rests on rocky grounds—there are defenses based on sovereign immunity, the running of the statute of limitations, and the bar of prior litigation. And the issue of suit becomes more fraught where efforts are made to sue state governments, as in California, where slavery had never been practiced. The exhaustive California Reparations Report offers such a one-sided view of history from 1850 onward—all its authors and researchers were Black—that its minimum recommendation of $800 billion in reparations, in a state running a $25 billion budget deficit for 2023 should be regarded dead on arrival.