H/t Imani Perry.
H/t Imani Perry.
Today is the first anniversary of Nelson Mandela's death. He became an international icon because he chose reconciliation and forgiveness over war and vengeance. There is no doubt that Mandela was a great man and a great leader. But, now that we have mourned, it is time to take a critical look at his legacy. When we scratch beneath the surface, we find that the political bargain that he brokered to bring an end to apartheid while avoiding massive bloodletting and economic disintegration is now falling apart.
Due to massive colonial and apartheid era land theft, when apartheid ended in 1994, 87% of the land was owned by whites although they constituted less than 10% of the population. The bargain allowed whites got to keep their land despite how it was acquired. In exchange, blacks got the promise of land reform. This year, South Africa celebrates 20 years of democracy and the state has transferred only about 10% of the land from whites back to blacks. Whites have secure land rights while the promise made to blacks has gone unfulfilled. Needless to say, many blacks are losing their patience.
In one of the most impressive public opinion studies on land reform in South Africa to date, Professor James Gibson surveyed 3,700 South Africans and found that 85 percent of black respondents believed that “most land in South Africa was taken unfairly by white settlers, and they therefore have no right to the land today.” Gibson’s most troubling finding was that two of every three blacks agreed that “land must be returned to blacks in South Africa, no matter what the consequences are for the current owners and for political stability in the country.” According to Gibson’s data, most blacks, whether they live in rural or urban areas, see the land as stolen and want it back even if redistribution will provoke political unrest. That is, land injustice has become a sea of oil waiting for a match.
The Economic Freedom Fighters (EFF) are that match. EFF is a newly formed South African political party led by former African National Congress (ANC) youth league president, Julius Malema. The party’s foundational principle is “expropriation of South Africa’s land without compensation for equal redistribution in use.” After only a few months of campaigning, EFF won 6.3% of the vote in the national elections this past May, superseded only by the 22% won by the main opposition party—the Democratic Alliance (DA). To be sure, the ANC secured a safe majority by winning 62% of the vote, but the EFF’s success serves as a reminder of the consequences of its failed land reform program.
Black South Africans can only be expected to be so patient. If legal channels for correcting past land theft are not working, then they may resort to illegal or extreme measures to get their land back. Although Mandela has died, we cannot bury his dream of a free and fair South Africa along with him.
Atuahene is a professor of law at IIT, Chicago-Kent and Faculty Fellow at the American Bar Foundation. She is most recently the author of We Want What’s Ours: Learning from South Africa’s Land Restitution Program (Oxford University Press, 2014). More information is available at the website wewantwhatsours.com
I see that Susanne Buckley-Zistel of the Center for Conflict Studies and Stefanie Schaefer, a research fellow at the Irmgard Coninx Foundation, have the introduction to their book Memorials in Times of Transition up on ssrn. Cribbing now from their abstract:
Since the 1960-70s, we can see a worldwide upsurge of memorial projects that address the violent histories of recent wars, genocides and systematic human rights abuses. Such interventions often employ a common architectural language and are informed by a set of political and ethical claims in regard to what role commemoration can and/or should play aft er large-scale violence: providing public sites of mourning, putting past wrongs right, holding perpetrators accountable, vindicating the dignity of victims-survivors and contributing to reconciliation.
Dealing with the legacy of the past is subject to transitional justice. Conventionally, it incorporates a number of mechanisms such as truth commissions, tribunals, lustrations, reparations and more recently also memory work – including memorials – in order to deal with past injustices. It is based on the assumption that any form of transition from violence to peaceful coexistence requires the disclosure of past events and the establishment of some form of justice for the victims in particular and the society in general.
Despite this general reliance on memorialisation within transitional justice, practitioners as well as scholars often share a rather skeptical outlook on the allegedly beneficial impact of such interventions: ranging from fears that an open display of contested memories reignites dormant animosities to the defeatist beliefs that symbolic politics of far-away state institutions make little difference in war-torn communities. Overall, a comprehensive answer to this complex problem is amiss and will remain so unless analysis aims at a more nuanced understanding of the complex ways in which memorials are employed by and function within transitional society. With this volume, we seek to make a contribution towards closing this research gap.
Though the memorials put up in the wake of Civil War are earlier than their project, the issues they discuss have obvious parallels. I've thought for a long time that the excellent work that's been done on transitional justice could be enriched by looking at the south in the wake of Civil War. There were shattered lives struggling to be put back together -- the formerly enslaved people who had little resources and whose government often abandoned them, as well as members of the formerly ruling class whose wealth had been largely lost, who were struggling to regain political power. The efforts at addressing past injustices was missing -- it was, to turn Eric Posner and Adrian Vermeule's phrase on its side, "transitional justice as ordinary injustice." And running alongside all of this were efforts at memorialization by white southern women. I've spoken before about my skepticism of the importance of public monuments to those who defended the slave-owning south. But I do have to say that I think this is an area of work that deserves more attention from legal scholars than it's received. Soon I hope to turn to this, but first I need to finish my paper on Richmond's Washington Equine Statue and its relationship to slavery and the charitable corporation.
The illustration is a family cemetery at Appomattox.
I've been talking a lot of late about the resurgence of literature on reparations. And next week I hope to have a working draft of a paper on North Carolina's eugenics program and the legislature's compensation statute that I'm writing with Elizabeth Troutman. One of the best developoments has been the literature that looks pretty seriously at designing a reparations program. Lisa Laplante's new article, "Just Repair" is a prime example of this literature, which tries to assess what reparations might actually look like. Here is Laplante's abstract:
“Just Repair” offers, for the first time, a theory of administrative reparation programs for redressing atrocities. Under this new theory, a government could satisfy its international obligation to guarantee just repair for victims who suffered a violation of their fundamental rights if it adopts a plural approach to designing its reparation policy. The Article responds to the challenges that governments face when trying to repair the harm suffered by hundreds, and sometimes thousands, of victims of political violence, repression and armed conflict. Governments often opt for an administrative solution when it is not feasible for every victim to use civil suits to litigate their claims. These administrative regimes often draw upon the concept of reparative justice, adopting a “legalistic” approach that calculates damages and awards lump sums or annuities. These payments technically fulfill the international obligation to protect the recognized right to reparation enjoyed by all victims of human rights violations. Yet recent scholarship questions whether administrative programs respond adequately and appropriately to the needs of victims, especially when governments implement reparation programming without consulting victims and thus fail to meet the victims’ expectations and demands. This misaligned policy results in victim dissatisfaction with, and even rejection of, reparation programs. Yet, in exposing this problem, few scholars offer a theoretical framework for a broader analysis of why this policy failure occurs. This Article responds by suggesting that the rift between theory and practice arises in part due to the lack of a coherent theoretical framework to explain the justice aims of reparations that can not only guide the planning and implementation of reparation programs but also third-party evaluations of these projects. Additionally, there is a still minimal international law guidance of what constitutes an effective, adequate and appropriate reparation program. Thus this Article presents a model of plural justice called the ‘justice continuum of repair’ that draws from classic legal and political theories to describe the overarching justice aims of reparations in transitional justice settings. This account better accommodates the multilayered justice aims held by victims, especially in light of the great diversity of human rights violations they suffer in addition to the variance in demographic characteristics like gender, class, age, location, among other factors. Their ‘postionality’ will influence what victims perceive to be necessary to feel repaired. This Article proposes that a government should adopt a participatory approach to planning and implementing their reparation programs to better accommodate and manage the multiple justice aims and expectations of victims, and thus help to enhance the effectiveness and legitimacy of a national reparation policy. Moreover, this framework will contribute to the development of evolving international standards for assuring fair and just reparation programs. Ultimately, a pluralist theory offers a more coherent understanding of the justice aims of reparation programs while still promoting the universalistic concept of the right of reparations.
Thanks to our co-blogger Kevin Maillard, the New York Times' Room for Debate is talking about the case for and against reparations for slavery and the decades of "Jim Crow" segregation that followed it. There are a lot of discussants, including University of Pennsylvania history and law professor Mary Frances Berry and Michigan State Univeristy law professor Matthew Fletcher. (My piece asks who should pay and why.) As I've been saying for some time, talk of reparations has been making a come back -- and recently we've been hearing about the Caribbean countries' impending lawsuit against Great Britain and payments to victims of North Carolina's sterilization program, as well as for slavery and Jim Crow here in the US. A lot of the talk in the US was set off by Ta-Nehisi Coates' powerful story in The Atlantic, "The Case for Reparations." (And then there's David Frum's response, "The Impossibility of Reparations.") We'll see where this all heads.
Since everyone else is talking about Saunders Hall on the UNC Campus I figured I should at least put up a picture of it. I think I want to learn a little more about William Lawrence Saunders. I spent some time between reading property exams yesterday reading his address at Trinity College on North Carolina history. He was, perhaps, smart enough to keep the really offensive material out of that address. In that regard, he was smarter than many.
There are a couple of things I want to know about this before I would support renaming. First, I'd like to know more about Saunders' dark side; second, I'd like to know why he was honored with the building name in 1922, about thirty years after his death; third, I'd like to know who had a say in the naming. Until then, I'm sticking with my default position that I'm against renaming, not the least because renaming facilitates forgetting.
But, really, why are people giving Thomas Ruffin (after whom Ruffin Hall is named) such a pass? Not that I'm in favor of renaming Ruffin Hall. But I would have thought that a more likely target than Saunders Hall.
Antonius Rickson Hippolyte of the University of Hull has posted "Unearthing the Legitimacy of CARICOM's Reparations Bid" on ssrn. Here is his abstract:
Fourteen Caribbean countries, coalescing under the CARICOM banner, are preparing to bring a class action suit for reparations for native genocide and slavery against the United Kingdom, France and the Netherlands in the International Court of Justice (ICJ). CARICOM, an international organization, with a common market at its core, at its 34th regular meeting of the Heads of Government created the CARICOM Reparations Committee, presided over by the prime minister of St. Vincent and the Grenadines, Ralph Gonsalves, with Barbados, Haiti, Guyana, Suriname, and Trinidad and Tobago providing political oversight. This claim arises from the reparation desires of Member States for the legacies of native genocide and slavery, in which almost an entire population of the regions natives peoples was wiped out by these European settlers and whereby millions of slaves were transported from Africa to work on plantations in the West Indies for the economic benefit of these Europeans. These dark sides of the European colonization of the West Indies may be classified as crimes against humanity, and international law provides from reparations for such atrocities, given the myriad historical examples of such reparations. However, in the 1830s when Britain ended slavery, the enslaved people freed, received nothing from the government in compensation for generations of forced labor, though there was money for slave-owners. These vile crimes continue to have lingering effects in the Caribbean today. CARICOM Heads-of-States are unanimous in their opinion that these two tragedies have contributed significantly to underdevelopment of the region. As such it is hoped that reparations will begin to right the wrongs of the past, namely some measure of economic compensation to supplement the economies of these countries and acknowledgement by these countries of the legacies of slavery. The general view is that reparations are valuable and there needs to be some European recognition of the legacies of slavery.
This is another sign that discussion of reparations is continuing. As I have grown fond of saying, although reparations has been defeated politically in the United States, the moral claim continues. It's something people have been asking for generations. I have some thoughts about this in an essay review on Hillary Beckles' Britain's Black Debt in the journal Slavery and Abotlition.
As I have been saying for some time now, the discussion of reparations in both domestic and international circles is returning. This leads me to ask a second reparations trivia question. What famous American politician said this:
My nation's journey toward justice has not been easy and it is not over. The racial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times. But however long the journey, our destination is set: liberty and justice for all. ...
We know that these challenges can be overcome, because history moves in the direction of justice. The evils of slavery were accepted and unchanged for centuries. Yet, eventually, the human heart would not abide them. There is a voice of conscience and hope in every man and woman that will not be silenced -- what Martin Luther King called a certain kind of fire that no water could put out. That flame could not be extinguished at the Birmingham jail. It could not be stamped out at Robben Island Prison. It was seen in the darkness here at Goree Island, where no chain could bind the soul. This untamed fire of justice continues to burn in the affairs of man, and it lights the way before us.
I'm guessing you're going to be surprised by the answer. I'll give you a hint -- it wasn't the person I asked about in my first reparations trivia question. However, the language is in some ways reminiscent of his ideas.
Congratulations to University of Virginia history professor Alan Taylor on the Pulitzer Prize in History for 2014 for his expansive volume, The Internal Enemy: Slavery and War in Virginia, 1772-1832. The prize was announced yesterday. Cribbing now from W.W. Norton's website:
This searing story of slavery and freedom in the Chesapeake by a Pulitzer Prize–winning historian reveals the pivot in the nation’s path between the founding and civil war.
Frederick Douglass recalled that slaves living along Chesapeake Bay longingly viewed sailing ships as "freedom’s swift-winged angels." In 1813 those angels appeared in the bay as British warships coming to punish the Americans for declaring war on the empire. Over many nights, hundreds of slaves paddled out to the warships seeking protection for their families from the ravages of slavery. The runaways pressured the British admirals into becoming liberators. As guides, pilots, sailors, and marines, the former slaves used their intimate knowledge of the countryside to transform the war. They enabled the British to escalate their onshore attacks and to capture and burn Washington, D.C. Tidewater masters had long dreaded their slaves as "an internal enemy." By mobilizing that enemy, the war ignited the deepest fears of Chesapeake slaveholders. It also alienated Virginians from a national government that had neglected their defense. Instead they turned south, their interests aligning more and more with their section. In 1820 Thomas Jefferson observed of sectionalism: "Like a firebell in the night [it] awakened and filled me with terror. I considered it at once the knell of the union." The notes of alarm in Jefferson's comment speak of the fear aroused by the recent crisis over slavery in his home state. His vision of a cataclysm to come proved prescient. Jefferson's startling observation registered a turn in the nation’s course, a pivot from the national purpose of the founding toward the threat of disunion. Drawn from new sources, Alan Taylor's riveting narrative re-creates the events that inspired black Virginians, haunted slaveholders, and set the nation on a new and dangerous course.
The book stretches from the days before the Revolution to the Nat Turner rebellion, but it is focused around the War of 1812 and the efforts of the British to undermine the United States by, among other things, offering freedom to enslaved people. The book concludes with a story about the compensation that some of the owners eventually received in the 1820s for the losses of their slaves. One plantation owner received something like $18,000 for the slaves who escaped his Virginia plantation. He wrote his lawyer (I think it was William Wirt) to express his gratitude at how the money saved him from financial ruin and from the need to sell his remaining slaves. This is yet another example of reparations for slavery in our history, just not the kind we usually think about these days. That is, it's about reparations for slave-owners. This also puts into some context the claims made by the slave-owners in Southampton, Virginia, who sought legislative compensation for the slaves killed as part of putting down the rebellion. I have some more to say about this in the Nat Turner trials.
I hope to have some more to say about this shortly. And I also hope that some important law journal will review this -- I think there's a lot here that's relevant to legal history. The image is of the Monumental Church in Richmond, Va. The fire that the church commemorates figures early in Taylor's book.
The European Institute at the University College London is soliciting papers for a workshop scheduled for March 2015 that aims "to explore what political theorists can contribute to ... preparation" for reparations claims. They are looking for 1500 word essays by July 1 that will address one of three key questions:
Cribbing now from their webpage:
This workshop is part of a longer-term, experimental project, aimed at the co-production of knowledge, by academics and activists who collaborate in their work on reparations. In this way, this workshop contributes to the recently established African Reparations Transnational Community of Practice (ARTCoP). ARTCoP will help UCL develop its engagement with, and its accountability to, African heritage communities in London. For this reason, a representative of UCL will provide ARTCoP with a monthly report on this project. This workshop is the first of three events helping to prepare this Community of Practice to engage with CARICOM’s claim for reparations from Europe.
The structure of this one-day-long MANCEPT workshop is to invite six ‘scholars’ and six ‘stakeholders’ to discuss the ideas of each participant and to air ideas about how, in future, we can work together. Following this MANCEPT workshop, if the participants are interested in continuing this work, they will be paired up to produce joint, or complementary, presentations, to be presented to the public, in December 2014, at a meeting funded by UCL’s European Institute. In March 2015, UCL’s Equiano Centre will host a one-day-long workshop, where the work—now revised in light of public scrutiny—can be presented to an academic audience, and where we can reflect critically on the process and methodology of the co-production of knowledge. We will seek to publish the results of this experimental process, in an online, open-source volume, with UCL Press.
More details are available at the webpage, "No reparation without preparation."
As long-time readers of faculty lounge may recall, I am interested in the resurgence of reparations claims and I think this is yet another sign that there is a great desire to talk about the moral case for reparations. It's time, again, to reconsider reparations as well as some conceptual and legal problems in reparations.
Patricia M. Muhammad, associate counsel at the City Board of School Commissioners, recently published "The Trans-Atlantic Slave Trade: A Legacy Establishing a case for International Reparations" in the Columbia Journal of Race and Law. Cribbing now from her abstract:
This Article examines the legal principle of restitution (reparations) as applied to crimes against humanity that were committed as a result of the Trans-Atlantic Slave trade, as enumerated in international conventions and statutes. The Trans-Atlantic Slave trade’s peculiar attractiveness to Western nation-states that implemented the institution placed a long-term social, mental, and economic hindrance upon the displaced descendants of its victims. This Article also discusses possible legal theories upon which the atrocities of the Trans-Atlantic Slave Trade may be adjudicated in an international criminal tribunal, thus establishing a case for international reparations, as well as legal obstacles to such cases. The crimes committed throughout the history of the Trans-Atlantic Slave Trade warrant a legal remedy in the form of international reparations. The award of reparations serves as an introductory measure toward compensating the descendants of the victims of the slave trade, who continue to suffer under its vestiges and are still deprived of their basic civil liberties and human rights throughout the international community.
If you're in Williamsburg on Saturday I hope you'll take in the symposium on race and law in America at William and Mary's law school. The speakers are Roy Brooks, Sheryll Cashin, Chris Bracey, Alex Johnson, Roger Clegg, and me. I'm going to be on the first panel, talking about William and Mary's connections to slavery -- mostly about the ideas of Thomas R. Dew, who wrote an important defense of slavery in the wake of the Virginia legislature's spring 1832 debate on slavery. (That debate was inspired by the Nat Turner rebellion.) George Wythe, Beverley Tucker, Abel Upshur, and a couple of more obscure people are part of the story, too. The Black Law Students Association has done a terrific job putting this together and I'm looking forward to the discussion! (Previous coverage of W&M's Lemon Project, which is about their connections to slavery, is here, here, and here.)
Thanks to Bill Turnier I see that the University of Virginia has formed a commission to study its connections to slavery. Wow there's a lot to talk about there -- and I'll be interested in all the directions this can go, from the subtly anti-slavery alumni like Henry Tutweiler and the oddly proslavery alumni like Edgar Allen Poe, to the zealously proslavery faculty like Albert Taylor Bledsoe -- and of course hovering over all of this is Jefferson himself and his legacy. The range of ideas in Charlottesville over the University's pre-Civil War life rival those at William and Mary; they are narrower than those at UNC. Ah, more talk of "God and Man [and enslaved people] at the University of Virginia."
Georgia State University law professor Paul Lombardo and Peter Hardin have an op-ed urging the Virginia legislature to compensate victims of the state's sterilization program. Lombardo is the author of the very important book on Buck v. Bell, Three Generations, No Imbeciles. He led the movement to have more recognition of Carrie Buck's life, including the historical marker in Charlottesville that is the illustration of this post.
Here's an excerpt from Hardin and Lombardo:
Today, legislators in Raleigh are to be applauded for voting to “pay for … mistakes” of the past. Since dead people don’t cash checks, the bill will not bust the state’s treasury: About 7,600 men, women and children as young as 10 were sterilized in North Carolina, yet fewer than 200 surviving victims have been identified by the state so far. That means each victim would receive a modest compensation of about $50,000. ...
There is a permanent stain on Virginia’s record. Yet North Carolina has shown how the cost of addressing an egregious justice on an individual level can be fiscally and politically achievable. Before it’s too late, Virginia must retake the moral high ground and compensate its surviving victims of eugenic sterilization.
Read the op-ed in theRichmond Times Dispatch here.
Update as of August 22: Lombardo and Hardin also have an op-ed in USA Today about the national movement for reparations.
Part 30. Eugenics Asexualization and Sterilization Compensation Program.
§ 143B-426.50. (For expiration date, see note) Definitions.
As used in this Part, the following definitions apply:
(1) Claimant. - An individual on whose behalf a claim is made for compensation as a qualified recipient under this Part. An individual must be alive on June 30, 2013, in order to be a claimant.
(2) Commission. - The North Carolina Industrial Commission.
(3) Involuntarily. - In the case of:
a. A minor child, either with or without the consent of the minor child's parent, guardian, or other person standing in loco parentis.
b. An incompetent adult, with or without the consent of the incompetent adult's guardian or pursuant to a valid court order.
c. A competent adult, without the adult's informed consent, with the presumption being that the adult gave informed consent.
(4) Office. - The Office of Justice for Sterilization Victims.
(5) Qualified recipient. - An individual who was asexualized involuntarily or sterilized involuntarily under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937. (2013-360, s. 6.18(a).)
§ 143B-426.51. Compensation payments.
(a) A claimant determined to be a qualified recipient under this Part shall receive lump-sum compensation in the amount determined by this subsection from funds appropriated to the Department of State Treasurer for these purposes. Except as provided by the succeeding sentence, the amount of compensation for each qualified recipient is the sum of ten million dollars ($10,000,000) divided by the total number of qualified recipients, and all such payments shall be made on June 30, 2015. The State Treasurer shall reduce the ten million dollars ($10,000,000) by holding out a pro-rata amount per claimant for any cases in which there has not been a final determination of the claim on June 30, 2015. Payments made to persons determined to be qualified claimants after that date shall be made upon such determination, and if after final adjudication of all claims there remains a balance from the funds held out, they shall be paid pro-rata to all qualified claimants.
(b) If any claimant shall die during the pendency of a claim, or after being determined to be a qualified recipient, any payment shall be made to the estate of the decedent.
(c) A qualified recipient may assign compensation received pursuant to subsection (a) of this section to a trust established for the benefit of the qualified recipient. (2013-360, s. 6.18(a).)
§ 143B-426.52. Claims for compensation for asexualization or sterilization.
(a) An individual shall be entitled to compensation as provided for in this Part if a claim is submitted on behalf of that individual in accordance with this Part on or before June 30, 2014, and that individual is subsequently determined by a preponderance of the evidence to be a qualified recipient, except that any competent adult who gave consent is not a qualified recipient unless that individual can show by a preponderance of the evidence that the consent was not informed.
(b) A claim under this section shall be submitted to the Office. The claim shall be in a form and supported by appropriate documentation and information, as required by the Commission. A claim may be submitted on behalf of a claimant by a person lawfully authorized to act on the individual's or the individual's estate's behalf.
(c) The Commission shall determine the eligibility of a claimant to receive the compensation authorized by this Part in accordance with G.S. 143B-426.53. The Commission shall notify the claimant in writing of the Commission's determination regarding the claimant's eligibility.
(d) The Commission shall adopt rules for the determination of eligibility and the processing of claims in accordance with G.S. 150B-21.1. Notwithstanding G.S. 150B-21.1(d), the rules adopted pursuant to this section shall expire on the earlier of the date all claims made under this section are finally adjudicated or June 30, 2018. (2013-360, s. 6.18(a); 2013-410, s. 40.)
§ 143B-426.53. Industrial Commission determination.
(a) The Commission shall determine whether a claimant is eligible for compensation as a qualified recipient under this Part. The Commission shall have all powers and authority granted under Article 31 of Chapter 143 of the General Statutes with regard to claims filed pursuant to this Part.
(b) A deputy commissioner shall be assigned by the Commission to make initial determinations of eligibility for compensation under this Part. The deputy commissioner shall review the claim and supporting documentation submitted on behalf of a claimant and shall make a determination of eligibility. In any case where the claimant was a competent adult when asexualized or sterilized, the burden is on the claimant to rebut the presumption that the claimant gave informed consent. If the claim is not approved, the deputy commissioner shall set forth in writing the reasons for the disapproval and notify the claimant.
(c) A claimant whose claim is not approved under subsection (b) of this section may submit to the Commission additional documentation in support of the individual's claim and request a redetermination by the deputy commissioner.
(d) A claimant whose claim is not approved under subsection (b) or (c) of this section shall have the right to request a hearing before the deputy commissioner. The hearing shall be conducted in accordance with rules of the Commission. For claimants who are residents of this State, at the request of the claimant, the hearing shall be held in the county of residence of the claimant. For claimants who are not residents of this State, the hearing shall be held in Wake County or at a location of mutual convenience as determined by the deputy commissioner. The claimant shall have the right to be represented, including the right to be represented by counsel, present evidence, and call witnesses. The deputy commissioner who hears the claim shall issue a written decision of eligibility which shall be sent to the claimant.
(e) Upon the issuance of a decision by the deputy commissioner under subsection (d) of this section, the claimant may file notice of appeal with the Commission within 30 days of the date notice of the deputy commissioner's decision is given. Such appeal shall be heard by the Commission, sitting as the full Commission, on the basis of the record in the matter and upon oral argument. The full Commission may amend, set aside, or strike out the decision of the deputy commissioner and may issue its own findings of fact, conclusions of law, and decision. The Commission shall notify all parties concerned in writing of its decision.
(f) A claimant may appeal the decision of the full Commission to the Court of Appeals within 30 days of the date notice of the decision of the full Commission is given. Appeals under this section shall be in accordance with the procedures set forth in G.S. 143-293 and G.S. 143-294.
(g) If at any stage of the proceedings the claimant is determined to be a qualified recipient, the Commission shall give notice to the claimant and to the Office of the State Treasurer, and the State Treasurer shall make payment of compensation to the qualified recipient or a trust specified under G.S. 143B-426.51(b).
(h) Decisions and determinations by the Commission favorable to the claimant shall be final and not subject to appeal by the State.
(i) Costs under this section shall be taxed to the State. (2013-360, s. 6.18(a).)
§ 143B-426.54. Office of Justice for Sterilization Victims.
(a) There is created in the Department of Administration the Office of Justice for Sterilization Victims.
(b) At the request of a claimant or a claimant's legal representative, the Office shall assist an individual who may be a qualified recipient to determine whether the individual qualifies for compensation under this Part. The Office may assist an individual filing a claim under this Part and collect documentation in support of the claim. With the claimant's consent, the Office may represent and advocate for the claimant before the Commission and may assist the claimant with any good-faith further appeal of an adverse decision on a claim.
(c) The Office shall plan and implement an outreach program to attempt to notify individuals who may be possible qualified recipients. (2013-360, s. 6.18(a).)
§ 143B-426.55. Confidentiality.
Records of all inquiries of eligibility, claims, and payments under this Part shall be confidential and not public records under Chapter 132 of the General Statutes. (2013-360, s. 6.18(a).)
§ 143B-426.56. Compensation excluded as income, resources, or assets.
(a) Any payment made under this section shall not be considered income or assets for purposes of determining the eligibility for, or the amount of, any benefits or assistance under any State or local program financed in whole or in part with State funds.
(b) Pursuant to G.S. 108A-26.1, the Department of Health and Human Services shall do the following:
(1) Provide income, resource, and asset disregard to an applicant for, or recipient of, public assistance who receives compensation under this Part. The amount of the income, resource, and asset disregard shall be equal to the total compensation paid to the individual from the Eugenics Sterilization Compensation Fund.
(2) Provide resource protection by reducing any subsequent recovery by the State under G.S. 108A-70.5 from a deceased recipient's estate for payment of Medicaid-paid services by the amount of resource disregard given under subdivision (1) of this subsection.
(3) Adopt rules to implement the provisions of subdivisions (1) and (2) of this subsection. (2013-360, s. 6.18(a).)
§ 143B-426.57. Limitation of liability.
Nothing in this Part shall revive or extend any statute of limitations that may otherwise have expired prior to July 1, 2013. The State's liability arising from any cause of action related to any asexualization or sterilization performed pursuant to an order of the Eugenics Board of North Carolina shall be limited to the compensation authorized by this Part. (2013-360, s. 6.18(a).)
The image is the building where the North Carolina Sterilization Board met.
Well, it looks like the state budget is going to set $10 million aside to compensate victims of the North Carolina sterilization program. The best recent article on this appeared in Miami Herald yesterday.
As long-time readers of the faculty lounge may recall, we've been following the campaign for compensation for a while and also discussing the complexities of the North Carolina eugenics program, which started in the 1930s and continued well past the time it ended in many other states.
The 2013 Senate bill to provide compensation is here.
This post is about reparations for slavery, even if not the kind we hear about now and then. This is about the claims made by slave-owners in the wake of the Nat Turner rebellion for slaves killed during the rebellion and in its immediate aftermath. Herein lies a window into public constitutional ideas and jurisprudence in Virginia slave society in the 1830s. For these are appeals by property owners who lost an important and valuable property, but who had no legal claim, to the Virginia legislature to make them whole.
The petitions speaks in an oblique way to the important question of just how much legislatures respected private property rights. The question of antebellum respect for property rights has been addressed by legal historians with a rather diverse set of views from Dan Hamilton (whose Limits of Sovereignty found a robust protection of property emerging around the time of Civil War), to Jim Ely (whose The Guardian of Every Other Right locates those values much further back, at least at the time of Revolution), to Bill Novak (whose The People's Welfare found a strong spirit of regulation of property for the public good in the pre-Civil War era). Hamilton, Ely, and Novak all deal with issues of regulation by the government of property, not the destruction of property by non-government actors.
There were petitions from six slaveowners for ten humans killed during the rebellion and its immediate aftermath. One, for a slave named Alfred, is I think the person for whom Blackhead Signpost Road is named. Alfred's owner's petition detailed that the Greensville Dragoons who found him “deemed that his immediate execution would operate as a beneficial example to the other insurgents—many of whom were still in arms and unsubdued.”
But what really interests me are the appeals the petitioners made to the legislature. Several appealed to the general sense of justice and property:
The people of Virginia have at all times been renowned for a generous sympathy with individual suffering and he feels assured that there is not a man among them who would not rather impose a small tax upon himself than that an innocent person should suffer such a heavy loss of property.
The petitions then turned to history, arguing that such compensation was well-established policy of the state. They referred to the legislature’s ancient practice, stretching back to the seventeenth century, of compensating slave owners whose slaves were killed by the sheriff, to make the case for compensation. Moreover, it made no sense to hold the slaveowner liable for the acts of rebellion or to expect the slaveowner to look to the people who killed the slave for compensation. For no jury “would award damages against persons that they might think were acting under a sense of duty and with a view to the public safety.”
In the end, none of the petitions were granted. The Virginia legislature left people who had lost property to bear the losses themselves -- which in some ways reflects an extreme of classical liberalism. Property rights might be respected scrupulously from infringement by the legislature, but there would be no spreading of risk among all the state's taxpayers.
Want to hear more about this? I have a draft of my paper on "the Nat Turner trials" up on ssrn.
Umm, why have I never heard of the "Joint Resolution to Return to the Proper Authorities Certain Union and Confederate Battle Flags" that was passed on February 5, 1905 and is recorded at 33 Statutes at Large 1284? I know this will surprise you given the title of the joint resolution: it deals with "Union and Confederate Battle Flags." Pretty interesting to see what happened to the flags in the possession of the War Department -- those of the United States that couldn't be matched to a state were sent to West Point; those of the South that couldn't be matched to a state were sent to the Confederate Memorial Literary Society in Richmond. About which I knew absolutely nothing. I now learn that it owns the Museum of the Confederacy. I think Eric visited that place when he was in Richmond a while back.
Here's the text of the resolution, by the way:
Resolved ... That the Secretary of War be, and he is hereby, authorized to deliver to the proper authorities of the respective States in which the regiments which bore these colors were organized certain Union and Confederate battle flags now in the custody of the War Department, for such final disposition as the aforesaid proper authorities may determine.
That "now in the custody of the War Department" part makes the claim on Virginia's flag in the Minnesota Historical Society mighty rickety. But leaving the flimsy claim aside, what really interests me is (1) why isn't this more a part of the literature on reconciliation and memory of the Civil War? I mean, I get that historians of memory all too often ignore law -- despite Glory McLaughlin's efforts to the contrary. But shouldn't this be part of the story? And (2), holy cow. This is another example of a claim for repatriation of cultural property. It's just like NAGPRA, only it relates to Civil War flags. Or, as I'm fond of saying, this is another example of a claim for reparations for the era of slavery, just not of the kind we usually think about today. I rather suppose that this claim will go the way of other reparations claims -- when people realize there is no legal claim (which anyone reading the joint resolution surely will understand), that will be the end of the discussion.
The flag used here is in the collection of the Minnesota Historical Society.
I've been blogging for some time now about how reparations talk is persisting in the academy. And now I want to call attention to another sign that the discussion of reparations is persisting -- that there is new literature arguing against reparations. Larry Alexander and Maimon Schwarzschild now have a book review essay, entitled "Race Matters," of David Boonin's book Should Race Matter? up on ssrn. Here is their abstract:
One frequently hears that America has a race problem. We agree, but the race problem we identify is not what is usually meant by those who invoke it. It is not discrimination, intentional or otherwise, but rather obsession with race that is America’s more consequential “race problem” today. America has vanquished slavery, segregation, and long-standing racial discrimination only to succumb to an almost equally destructive race obsession. Despite the biological arbitrariness of dividing a single, interbreeding biological species into “races,” despite the sorry history legally and socially of the use of race, and despite the civil rights movement’s original ambition to substitute the content of character for the color of skin as the basis of decision making, America today is in many ways as race conscious as it was in the era of Jim Crow.
For that reason we welcome David Boonin’s Should Race Matter? Boonin takes up five topics that constitute a good portion of the current obsession — reparations, affirmative action, hate speech, hate crimes, and profiling — and he subjects each to philosophical scrutiny. Boonin is sober and fair minded in tone, and purports to be careful and comprehensive in method. Unlike many discussions of race, Boonin’s tries to shed light, not heat. He deserves to be read by everyone who takes a serious interest in public policy as it bears on race.
Boonin’s book has its limitations, as we will suggest. Moreover, Boonin discusses only race, not sex, ethnicity, nationality, religion, disability, or sexual preference, although most of the policies he considers have been urged or actually extended beyond race to some or all of these other categories. Nonetheless, Boonin’s analyses of these policies as they bear on race would have direct implications for these other categories. Given that Boonin takes 350 pages to examine five racial policies, we think limiting his focus to race was quite justifiable.
Although we believe Boonin’s is a worthwhile treatment of contemporary racial policies, we take issue with him on several points. We think that his arguments in support of affirmative action and hate crimes are incomplete and thus unpersuasive, and we consider his case for reparations a failure on its own terms. Nonetheless, we admire the effort at fair-mindedness and the care with which he makes the case for these policies.
About a decade back I pointed to the emergence of anti-reparations literature as a sign that the field was maturing. Perhaps the fact that two important scholars are again engaging with the anti-reparations arguments suggests the vitality of the field.
This Friday the University of Virginia's Carter Woodson Institute is hosting a symposium on the question, "Does Reparations Have a Future?" I suppose the short answer is that people are continuing to use reparations talk as a way of organizing their thoughts and actions around racial justice -- even as the case for reparations has been largely defeated in the courts and in legislatures.
One of the things that really interests me -- and that Kaimi Wenger has written about --- is how reparations has been de-radicalized in recent years. Legislatures, corporations, and institutions are more willing to engage in discussions about the past (what some people call truth and reconciliation commissions) and issue apologies. That's the non-radical part. The radical part -- which continues to meet stiff restsitance to the extent it's talk about at all -- is money. And that's not going anywhere soon.
There are four panels, "Reparations in Historical Frame," "Reparations and the University," "Reparations and the Nation," and "Reparations Around the Glove." The speakers include Martha Biondi of Northwestern University; Lawrie Balfour of the University of Virginia; Lisa Crooms of Howard University; William Darity of Duke University; Adrienne Davis, of Washington University; Michael Dawson of the University of Chicago; Ted Delaney of Washington & Lee University; Kim Forde-Mazrui of UVA; Darren Hutchinson of American University; Alex Johnson of UVA; H. Timothy Lovelace of Indiana University; Pap NDiaye of L'École des Hautes Études en Sciences Sociales; Melissa Nobles of MIT; Margaret Urban Walker, of Marquette University; and Verna Williams of the University of Cincinnati. Here's the full schedule.