WALTER: Don’t cry, Mama. Understand. That white man is going to walk in that door able to write checks for more money than we ever had. It’s important to him and I’m going to help him . . .
MAMA: Son—I come from five generations of people who was slaves and sharecroppers—but ain’t nobody in my family never let nobody pay ’em no money that was a way of telling us we wasn’t fit to walk the earth . . .
—Lorraine Hansberry, A Raisin in the Sun
And I know the money don’t really make me whole . . .
—Noname
This Article contends that we should understand law as a powerful force for reparations, considering legal, philosophical, and critical theorists in addition to legal analysis of historical case studies. The creation of group-specific legal rights and remedies, which allow individuals to exercise greater power and agency in shaping their lives, are a form of reparations that may be preferable to most of the proposals currently discussed (which rely largely upon financial or in-kind assistance). Part I introduces the concepts of reparations and reconciliation. Part II explores recent attempts to use Charles Mills’ Racial Contract framework as a justification for reparations. The Article asserts that a proper reading of Mills requires making Black Americans more than mere beneficiaries of a “restored” social contract and must make them contract makers. Part III explores what it means to be a contract maker, looking at the work of Mills, James Baldwin, and principles of contract law. Part IV posits that law and legal rights are a powerful form of reparations because they uniquely help recipients become contract makers in society. It considers how the original intent of the Thirteenth and Fourteenth Amendments was reparative but has since become co-opted by color-blind, “reverse-racism” arguments. These amendments are contrasted with federal and state-level laws in Hawaiʻi that explicitly provide unique rights and benefits to Native Hawaiians (with mixed success). Drawing from the author’s experience working in civil rights in Hawaiʻi, the Article contends that the presence of targeted reparative laws has empowered Native Hawaiians with the tools to control their fate in a way that one-time payments could not.
To read this Article, please click here: Law as Reparations