My colleague Terry Eastland wrote about this last week, but in case you missed it:
Accordingly to a new Pew Research Center survey, 73 percent of Americans believe that race and ethnicity should play no role in university admissions. All racial and ethnic groups reject this discrimination: 78 percent of whites, 62 percent of blacks, 65 percent of Hispanics, and 59 percent of Asian Americans. This result is no outlier, by the way, and is line with other surveys over the years.
***
And for the same reason — which can be summed up as E Pluribus Unum — reparations are a really bad idea, no matter what the various Democratic presidential hopefuls may say in their race to the Bottom Left.
I was given the opportunity to testify before Congress against a reparations bill years ago, and you can read the full testimony here; Harvard historian Stephan Thernstrom testified at the same time, and you can read his excellent testimony (starting on page 82) here. And videos of the hearings are available here and here.
Finally, in my testimony I mentioned briefly that, on top of everything else, reparations would be unconstitutional — a point (in addition to its huge economic cost) that Hans Bader last month gave chapter and verse on here.
Excerpts from my testimony follow for the balance of this email.
***
TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL AT AN OVERSIGHT HEARING ON THE LEGACY OF THE TRANS-ATLANTIC SLAVE TRADE BEFORE THE HOUSE JUDICIARY COMMITTEE, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
December 18, 2007
Rayburn House Office Building, Room 2141
Thank you very much, Mr. Chairman, for the opportunity to testify today. My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia. Our chairman is Linda Chavez, and our focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation. I should also note that I was a deputy in the U.S. Department of Justice’s Civil Rights Division for four years, from 1987 to 1991.
Overview
The discussion today of the legacy of the trans-Atlantic slave trade is intended, I presume, to help lay the groundwork for favorable consideration of H.R. 40, the “Commission to Study Reparation Proposals for African-Americans Act.” And the enterprise that H.R. 40 would have us embark on, in turn, is as follows: First, a commission would determine what effects slavery and post-slavery discrimination had on African Americans and what “lingering negative effects” it continues to have on them; and then, second, it would suggest possible remedies for those effects. The two remedies that are explicitly mentioned are an apology and some form of compensation.
There are any number of problems with this enterprise, and I would like briefly to discuss some of them in my testimony today. (Some of the points I will make are also expressed, often in more detail, in a dialogue I have written on this topic, a version of which was published in Engage magazine, and which I have included as an appendix to my testimony; I’ve also included an op-ed I wrote on a recent Chicago ordinance requiring city contractors to document any slavery-related business in the antebellum era.)
This Is an Unnecessary and Hopeless Task for Such a Government Commission
First, this research project is ill-suited for a government commission. H.R. 40 says that “sufficient inquiry has not been made into the effects of the institution of slavery on living African-Americans and society in the United States.” I am not sure what that statement is based on, and I am not a professional historian. But as a lay reader and a civil rights lawyer, it seems to me that there is no shortage of books and articles about slavery, and discrimination, and the problems facing the African American community today, and the way all these intersect. I am not declaring that there has been “sufficient inquiry”; just that there has been a great deal and that it continues–and that, given the intrinsic interest of these topics, especially among those in the academy, it will likely continue for the foreseeable future.
What I would declare, moreover, is that this inquiry will never end, and it will be a long time before anyone would presume to call the inquiry “sufficient.” Few historical inquiries ever are: There is always some new angle to explore. Further, the conclusions that historians will draw will always be incomplete, imperfect, and challenged by contemporary and future historians. That is the nature of historical scholarship, especially for issues as complex as this one.
H.R. 40 suggests, on the other hand, that something like a definitive answer will be possible if the government takes $8 million, hires seven “especially qualified” people, and gives them a year to figure it all out. This is, of course, absurd.
No one will dispute that slavery and Jim Crow were horrible and inhumane; no one will dispute that discrimination still exists, though only a delusional person would deny that America has made radical, dramatic, inspiring progress in the last 40 years–that its society has truly been transformed in an astonishingly short period of time. But it is impossible to say how much of the present is the result of one particular kind of event in the past. Only someone very arrogant or very foolish would make such a pronouncement.
Let me give just one example. The principal hurdle facing the African American community today is the fact that 7 out of 10 African Americans are born out of wedlock. Just about any social problem you can name–crime, drugs, dropping out of school, doing poorly in school, and so forth–has a strong correlation with growing up in a home without a father. And it is very hard to argue that this problem is traceable to slavery or Jim Crow, since illegitimacy rates started to skyrocket in the African American community just at the time that Jim Crow was starting to crumble.
Given that, how can anyone say with any confidence that such-and-such amount of such-and-such a social problem facing African Americans must be due to slavery? It cannot be done.
Race-Based Compensation Would Be Both Illogical and Unconstitutional
But let’s suppose that, nonetheless, the commission decides that it can be done. Let’s suppose that this commission says, “Forty-six percent of the poverty in the African American community today can be traced to slavery and discrimination, forty-five percent is caused by illegitimacy, and the remaining nine percent is just bad luck,” or some such silly thing. Or let’s suppose that it says something less silly, but so obvious that it does not take a government commission to figure it out–something like, “To some significant extent, the disproportionate amount of poverty facing the African American community today can be traced to slavery and the discrimination its members faced.”
Would it follow that some sort of “compensation”–one of the two remedies H.R. 40 explicitly asks the commission to consider–ought to be paid to African Americans? No. It certainly wouldn’t make sense to pay compensation to African Americans who are not living in poverty. It wouldn’t make sense to pay compensation to African Americans who are living in poverty if that poverty was not caused by slavery and Jim Crow–to give an obvious example, to African Americans who just immigrated here. Yet requiring a particular person to prove his slave ancestry leads to many problems (as discussed in Appendix A); presuming slave ancestry because of a person’s appearance raises many problems, too; and there are problems with simply taking people at their word as well.
Also, why should an African American who could trace his poverty to slavery be entitled to compensation over, say, a poor American Indian who could not but could trace it to some other historical wrong (in this case, say, a broken treaty)? Or a poor Latino or a poor Asian or even a poor white? Any of them might be able to trace his poverty to some historical wrong.
But most fundamentally, why does it matter whether the poverty is traceable to a historical wrong? Suppose you have two children. One could show somehow that the reason he was poor was because of the discrimination his family suffered. The other child is poor for no reason except his mother and father just immigrated to this country from a poverty-stricken homeland. Is the government supposed to say, “We view the first child’s poverty as a problem of federal concern, but not the second child’s”?
Of course not. There is no reason why eligibility for a social program ought to hinge on whether a citizen can trace his need for the program to this or that historical cause.
If we design social programs to help disadvantaged people, and if disadvantaged people are disproportionately African American because of the discrimination that they have disproportionately suffered, then African Americans disproportionately will be eligible for those programs. And, indeed, that is the case today. More than that makes no sense. And if the commission simply recommends more social programs that are not race-based, then it is even harder to see why its historical focus should be on one particular subset of one particular racial group.
If, finally, we were to make a social program available to those of one race and not to others, there would be serious constitutional problems. Presumably the justification for the program would be remedial, but the Supreme Court has–quite rightly–rejected general claims of societal discrimination as not sufficiently compelling to justify racial classifications.
An Apology Would Make No Sense Either
As for an apology, the second possible remedy listed by H.R. 40: The bill asks “Whether the Government of the United States should offer a formal apology on behalf of the people of the United States for the perpetuation of gross human rights violations on African slaves and their descendants.”
This is, at best, an odd apology. What would really be appropriate, of course, is for the slave-traders and the slave-masters to apologize to the slaves–but all these folks have long since passed on to their just rewards.
So instead we have the U.S. government (which actually ended slavery, at the cost of much blood and treasure) apologizing on behalf of today’s American people (none of whom ever owned slaves, and most of whom never had ancestors who did, either) to … whom? The bill does not say. Maybe the idea is just to apologize to ourselves, but that seems rather strange. Presumably the idea is to apologize to living African Americans. But these African Americans are not slaves; many are descended from slaves, but many are not; many of the former–maybe most now–are descended from both slaves and slave-owners.
Mr. Chairman, I cannot resist pointing out that, if there is anyone in the United States today from whom an apology for slavery and Jim Crow would be appropriate, it would be, not the U.S. government, and certainly not the American people–but the Democratic Party. It, after all, was historically the party of slavery, secession, and segregation.
But let’s be honest: Inevitably, such apologies are intended and interpreted as whites apologizing to blacks for slavery. (I wonder what Asians and Latinos, as well as American Indians, think of this theater?) But no white today is or ever was a slaveholder; no black today is or ever was a slave. What’s the point of one apologizing to the other?
Everyone has an ancestor who was wronged by someone else’s ancestor; there is no point in trying to find a thread for each present-day misfortune in an individual’s life that can be followed back through the decades to a particular misdeed; and anyone’s poverty today likely has many causes–some old, some recent, some other people’s fault, some one’s own. Nobody nowadays thinks slavery was anything but an abomination; nobody learns anything from this charade.
We are told that these apologies will help to bring closure, help enable us to move on. Nonsense–and that is not their intent, at least for many people. The idea is to reopen wounds, to keep grievance alive, to keep white people on the hook. An obsession with past wrongs, to the extent that present opportunity and future promise are ignored or slighted, is a bad thing.
A great strength of Americans is that we are forward looking. The trouble with slavery apologies is that they are designed to make whites feel guilty and to urge blacks to think of themselves as victims. Neither emotion is valid in these closing days of the year 2007; both are bad for race relations. In particular, the last thing an African American needs in 2007 is an excuse to fail. As individual white people will go about their business–and Latinos and Asians and Arab Americans and American Indians–individual black people will be left with the same choice they’ve had for years: embrace self-reliance and responsibility, or fail and blame it on others.
Conclusion
All of this is true not just for the apology issue but also for the entire enterprise that H.R. 40 would embark on: That is, it would accomplish nothing and would cost much. And I don’t mean monetary costs, but social costs: Specifically, the poisonous effect it would have a racial relations, and the pernicious message it would send, in particular, to those in the African American community, that their focus should be on what was done to them in the past, rather than the opportunities they have now.
Thank you again, Mr. Chairman, for the opportunity to testify today. I would be happy to try to answer any questions the Subcommittee may have for me.
