Professor Robert St. Martin Westley from Tulane University in New Orleans has focused his academic research on the question of reparation for slavery. He was visiting scholar at Professor Jörg Fedtkes Chair of Common Law at the University of Passau, where he gained an impression of German concepts of Wiedergutmachung and Vergangenheitsbewältigung.
In the Crossroads Talk with Professor Fedtke, Professor Westley reveals that his research was triggered in 2006 by a statement made by a judge of the 7th Circuit telling reparations activists that they were bringing their lawsuit too late.
Based on his findings, Professor Westley concludes: "There has never been a really good time up until the contemporary moment to begin to press these claims.”
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Here is his line of argument:
Freedom suits in the 18th and 19th century
During that time you have a situation where you have direct victims, you have actual living perpetrators, you have a court or judicating people. When the claims were fresh, the victims were alive and able to be compensated, but they were not compensated.”
Freedom suits were heard in the 18th and 19th century after slavery was abolished in the northern states. Professor Westley mentions the case of Solomon Northup, whose story was taken up in the Hollywood movie “12 years a slave”. He regained his freedom after 12 years, but he did not receive any compensation for the time that he had been wrongfully enslaved. Professor Westley: “They were called freedom suits because that was the remedy that the enslaved person would receive.”
Jim Crow laws in the late 19th and early 20th century
What my research has uncovered – without really expecting to: In every instance, where slavery was abolished by a state where it was formally allowed or tolerated under law, there were reparations payed to the slave owners.”
This was not a time when the black community could get a fair hearing about compensation for historical injustices done to them.”
When slavery was abolished by the 13th amendment in 1865, Jim Crow laws maintained racial segregation in the South. Jim Crow was a derogatory name for a black person. Black people had separate lives from white people, separate facilities such as schools, hospitals or churches often inferior to those of white people. The laws restricted what jobs blacks could take and how much they would be paid. In 1964, the Civil Rights Act ended the time of segregation. However, the laws have created a structural inequality that continues to persist up until today.
System of peonage
During that period of redemption, slavery was essentially reinstituted under another name. They didn’t call it slavery, they called it peonage. (…) This was a system that persisted really up until WWII.”
The Hayes-Tilden-Compromise of 1877 settled a heavily disputed presidential election and resulted in pulling the last federal troops out of the South. Many white Republicans left, and black Republicans lost their power. The racist Redeemer Democrats took control of the south. The system of peonage was established. Professor Westley mentions the following examples to illustrate it: “Blacks would be arrested on petty charges and fined heavily by a court. Employers would be given an opportunity to pay that person’s fine in exchange for that person’s agreement to labor for them.” Another way the system would work would be through convict leasing: The state would lease out prisoners to private corporations. Professor Westley: “That’s actually something that persisted up until contemporary times.” The Supreme Court decided on some of these peonage-cases. For example in Bayley versus Alabama in 1911, the court invalidated an Alabama peonage law. However, says Professor Westley, the court decided on these cases as if race had nothing to do with it.
Contemporary situation: racial wealth gap
There is continuing harm. And the way I measure this continuing harm is by pointing at things like the racial wealth gap.”
In the Crossroads Talk, Professor Westley says the system of peonage continues to perpetuate itself and keeps blacks in a subordinate position in today’s society. Westley defines slavery as an extraction of wealth from the black society. This is commonly referred to as the racial wealth gap: the disparity in median household wealth between different races. In the talk, Professor Fedtke quotes this BBC article that includes an illustration showing how the racial wealth gap has developed since 1967.
Current discussion about reparations for slavery
The idea that some form of reparation should be given to descendants of African Americans has gained traction recently: A congressional hearing where lawmakers considered House Bill H.R. 40, suggesting a commission to study the question of remedies for slavery, took place in June 2019. Among those heard by lawmakers was black author Ta-Nehisi Coates who had reignited the debate with his groundbreaking essay 'The Case for Reparations' published by the Atlantic in 2014. Several Democratic 2020 presidential candidates have expressed levels of support for reparations.
Background information on how the current debate has developed
The Crossroads Talk between Professor Fedtke and Professor Westley is part of Crossroads, a series of events organized by the Chair of Common Law at the University of Passau. Crossroads focusses on systems in transition and aims at audiences both within and outside the University. It seeks to trace and critically discuss contemporary developments in law and society across the globe.