Dorothy Brown’s new book Getting to Reparations: How Building a Different America Requires a Reckoning with our Past shows that “the legacy of slavery . . . is found in every nook and cranny of American life.” (P. 164.) So it’s hardly surprising to find actual contracts and extreme incursions on freedom of contract in the ongoing “trifecta” of “economic exploitation, mass incarceration, and racial violence” that white America has imposed on African Americans. Brown’s focus is post-13th Amendment, arguing that slavery essentially “shape-shifted” through harms including forced labor (i.e., sharecropping and convict leasing), mob violence to punish blacks who built businesses, and, more recently, today’s subprime mortgages.
Brown succeeds in building a case for reparations that everyone – including contracts scholars – could and should embrace.
The book’s three sections together justify Brown’s Model Executive Order in the book’s appendix, which would establish a Presidential Commission on Post-Slavery Governmental Discrimination against Black Americans. (Pp. 205-210.) Undeterred by the Trump administration’s war on racial equality, Brown dares to imagine a federal government finally willing to acknowledge, investigate, and redress the centuries of anti-black harm. Her optimism heeds Toni Morrison’s observation that the “serious function” of racism is “distraction” that “keeps you explaining, over and over again, your reason for being.” (P. 197.) Reparations, according to Brown, would “finally enable black Americans to stop explaining “why there are racial disparities, why we are disproportionately poor, why we aren’t prone to criminal acts, why we aren’t further along economically.” (P. 197.)
Like any strong legal argument, the book starts with precedent: four instances when the U.S. government paid cash compensation to nonblack people “for harms similar to those experienced by black people:” (P. xxiv.)
- Enslavers in Washington, D.C., for the “harm” of the Emancipation Proclamation;
- Italian lynching victims;
- Tribal Nations for land theft and economic exploitation; and
- Japanese Americans for mass incarceration in World War II.
Part I’s material on white enslavers’ “payday” (P. 3) makes an outstanding contribution to the reparations literature. Many people know that the nation breached its 1865 promise to provide newly freed Americans with 40 acres and a mule (General Sherman’s Field Order 15), a breach that enabled former enslavers to coerce the newly freed men, women, and children back into slavery-like conditions. It’s likewise well known that African Americans suffered additional harms, including lynching, vote suppression, and racial discrimination in housing and education.
But few appreciate that the federal government paid enslavers $993,406 (around $30 million today) for the “loss” of having to free 3100 people. (P. 9.) In my own reparations research, I have looked – without success – for details about which enslavers got paid, and how much, for freeing whom. Getting to Reparations provides that information, including the petition of D.C.’s second-largest enslaver, Margaret Catherine Adlum, for $22,550 (about $650,000 today), and how the U.S. Treasury paid her $9,351 (about $235,000 today). (Pp. 12-15.)
In contrast, the enslaved people – the ones truly wronged – never got paid. The remainder of Part I of Getting to Reparations describes the three more federal precedents for racial reparations: Sicilians for white lynch mob violence (Pp. 24-32); Tribal Nations for stolen land and economic exploitation (Pp. 32-38), and Japanese Americans for mass incarceration in World War II (Pp. 38-63).
Part II details the parallel mass harms suffered by African Americans at the hands of government and private actors: stolen labor; lynching; land theft and economic exploitation; and mass incarceration. Brown’s contribution is to illustrate the economic aspect of these harms, demonstrating how the country has repeatedly shunted wealth to whites at black Americans’ expense.
Brown defines reparations as “compensation for governmental harm inflicted directly, or indirectly due to their failure to prevent others from inflicting injury” (P. xviii). That focus on state action suggests that reparations are only a matter of public law. But contracts play a surprisingly important role. Take enslavement and its shape-shifting descendants, sharecropping and convict labor enabled by vagrancy laws. They all involve forced work, the very antithesis of freely chosen labor performed for compensation. In this view, contractual harms are central to white supremacy, as is clear from 42 USC § 1981’s declaration that all citizens have the same right to contract “as is enjoyed by white citizens.”
Even the crime of lynching includes economic losses. Brown documents how lynching required whole families and communities to abandon land, homes, and businesses. Indeed, as many as half of lynching victims owned land and other wealth-sustaining assets such as businesses, livestock, and equipment. (Pp. 85-86.) In short, lynch mobs and the government actors who cooperated or participated in racial terror forcibly deprived victims and their families of their freedom of contract.
Getting to Reparations concludes the analysis by debunking opposition to reparations for African Americans and contending that reparations could survive a constitutional challenge. Rather than rely on the 14th Amendment, Brown contends that the 13th Amendment, as originally intended, supports reparations. (Pp.187-188.) Anyone concerned with racial justice, including contracts professors who support freedom of contract, can draw on this book as a cautionary tale about the long history of some Americans enjoying more contractual freedom than others, coupled with an optimistic proposal for how law can and should evolve.
