Restitution for Horrors of U.S. Slavery

In the 2023 Harvard and UNC cases, the U.S. Supreme Court unequivocally upheld the necessity of allowing race-based efforts to “remediat[e] specific, identified instances of past discrimination that violated the Constitution or a statute.“  Furthermore, the legal principle, “For every right, there is a legal remedy; where there is no remedy, there are no rights,” underscores the importance of addressing historical legal wrongs rooted in slavery in the United States.

Remedies fall into two categories: equitable and legal remedies for legal wrongs. And demonstrably, the criminal nature of U.S. slavery demands a different form of justice than reparations, which is restitution, which refers to the act of restoring or returning to the rightful owner something that has been taken, lost, or unlawfully retained. It involves compensating for loss or injury caused to another. Restitution aims to make the injured party whole again, distinctly different from other legal remedies.

One glaring instance of a legal wrong for past racial discrimination that violated the Constitution or a statute is how the United States government wrongfully enslaved 500,000 black colonials during the 1780s—in direct violation of the rule of law and the Treaty of Paris of 1783, after Congress ratified this peace treaty in January 1784. Additionally, the U.S. also denied fundamental due process of law to these black colonials based on race. By establishing and ratifying a color-biased Constitution in 1788, the Framers of the U.S. Constitution institutionalized a racially motivated scheme designed to exploit and discriminate against black colonials and their descendants. This egregious exploitation has spanned from the era of slavery to the present day.

Even if slavery was lawfully codified by each of the thirteen colonial legislatures, the 500,000 black individuals were entitled to fundamental due process of law. Following the Declaration of Independence both Congress and each State legislature adopted Anglo-Saxon jurisprudence and English law. The British imperial government through British General Guy Carleton had claimed that black colonials were entitled to be “set at liberty” under the Treaty of Paris of 1783 and both nations created a Book of Negroes, which obligated the United States to address this international dispute as a sovereign nation. Therefore, our understanding of reconciliation for slavery must first acknowledge that the United States wrongfully denied 500,000 black individuals basic due process of law and used them as the foundation of its slave-based economy, in blatant violation of international law and the rule of law.

This recognition demands a fundamental shift in how we approach and possibly fashion a reconciliation discussion and initiative for the horrors of U.S. slavery. It was a criminal enterprise perpetuated by U.S. government officials, with countless unaccounted crimes against black people who the U.S. subjugated beneath the rule of law. This history necessitates a profound change in the meaning and implementation of reconciliation efforts.

The Articles of Confederation was the United States’ first constitution. As slavery was not a lawful condition under British rule and all contributed to its unlawful status being covered up for centuries—the notion of reparations for slavery rings hollow, as reparations is an equitable remedy, typically sought when an aggrieved party does not have an adequate remedy at law.

Applying the word “reparations” in the context of U.S. slavery was embodied in the Civil War Union General William Tecumseh Sherman’s Special Field Orders No. 15, which promised “40 acres and a mule” to black freedmen after the Civil War. However, the promise “40 acres and a mule” was soundly rejected by the U.S. government for several reasons:

1. Political Opposition: President Andrew Johnson, who succeeded Abraham Lincoln after his assassination, was a Southern democrat sympathizing with the former Confederates. He opposed the idea of redistributing land from Southern landowners to black freedmen.
2. Restoration of Land to Former Owners: President Johnson issued proclamations that pardoned many former Confederates and restored their property rights, including the lands allocated to black freedmen under General Sherman’s Special Field Orders No. 15.
3. Lack of Legislative Support: Congress had insufficient support to pass legislation that would have permanently enacted the redistribution of land to black freedmen. Additionally, even the Radical Republicans in Congress were hesitant to support such measures that would fundamentally alter the Southern economy and society.
4. Racism and Economic Interests: Many white Americans, especially in the South, were opposed to the idea of black freedmen owning land. They feared economic competition and a shift in the social order. The Southern economy relied heavily on the labor of African Americans, and many landowners preferred to reinstate a system resembling slavery, such as sharecropping.
5. Legal and Bureaucratic Hurdles: Implementing large-scale land redistribution faced significant legal and bureaucratic challenges. The U.S. did not have an well-established mechanism for confiscating and redistributing land on such a large scale.

In conclusion, parliamentary sovereignty and Parliament’s supreme legislative authority throughout the Kingdom during colonial times are unequivocally reinforced by Lord Chief Justice Mansfield’s Somerset decision in 1772. England’s highest court ruling affirmed Parliament’s supreme legislative authority over the American colonies by declaring that slavery was not “allowed or approved by the law of this Kingdom” and could only be made lawful if enacted by positive law, a legislative power that only Parliament possessed. Consequently, on July 4, 1776, slavery in colonial America did not exist.

Moreover, since colonial slavery in the American colonies was not the product of “positive law,” a legislative power held solely by Parliament, and as the British imperial government had already legislatively abolished colonial slave statutes and “negro laws” in the American colonies by way of the Declaratory Act of 1766, colonial slavery in the American colonies was unequivocally unlawful before the American Revolution started in 1775. The only conceivable way slavery could have been legal in the American colonies was through explicit slave legislation enacted by Parliament before the Declaration of Independence in 1776—which unequivocally never occurred.

This context and the U.S. Supreme Court’s landmark decision in the 1857 Dred Scott case underscores a fundamental truth: the U.S. Constitution was designed to create a ”perpetual and impassable barrier” between the white race and those they enslaved. The Supreme Court’s ruling that blacks were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations,” so far inferior that “they had no rights which the white man was bound to respect” is still good law. These rulings are controlling precedent for America’s courts which highlights the flawed underpinning of the 2023 Harvard and UNC cases where Justice Thomas even described the Constitution as a “color-blind” document. The Dred Scott decision starkly reveals the U.S. Constitution as a color-biased document, demolishing any claim that it is colorblind.

Lastly, the Courts have recognized that the pursuit of the educational benefits of diversity is a compelling government interest, justifying the consideration of race in college admissions. The persistent inequalities in PK-12 education faced by traditional African Americans and the Supreme Court’s 1857 controlling declaration in Dred Scott to create a “perpetual and impassable barrier” between the white and black races, when compounded by the current organized opposition to teaching America’s true history—dismissed by some as “critical race theory,” underscores the necessity of race-conscious admissions. These policies are vital for universities and colleges to identify and nurture talented students from the traditional African American and other minority communities, ensuring a diverse student body that enriches the educational experience for all.