Jonathan Turley
Reparations cause is coming up empty: Potential lawsuits destined to remain meritless in courts
http://www.NewsAndOpinion.com |
Reparations and reality collided this week in a federal courtroom in
Chicago. U.S. District Judge Charles Norgle dismissed the entire slavery
reparations lawsuit brought against 19 blue-chip firms such as banks,
railroads and insurance and tobacco companies. Despite Norgle's ruling,
reparations have become something of an urban legend that is impervious to
any corrective legal measure or reality check. It is a myth kept alive by a
virtual cottage industry pushing the idea of legal reparations or "black tax
rebates" despite mounting costs to African-Americans.
In their reparations lawsuit, the plaintiffs were asking the court for the
impossible: to set aside the most fundamental principles of legal process
and constitutional law. The court would then order billions in damages thus
far denied by Congress and oversee a fund that would dwarf the budgets of
some federal agencies.
To get there, the judge was expected to bulldoze through foundational
definitions of injury, standing and proof to allow the plaintiffs to recover
for injuries committed over a century ago to their ancestors. Some of the
plaintiffs, like Marcelle Porter in an interview with the Chicago Tribune
this month, dismissed such legal requirements as irrelevant: "I don't have
to prove anything," Porter stated, "I'm black."
The law, however, does not operate on such conclusory, unilateral
assertions. It demands showings of such things as proof, injury and
timeliness that distinguish the visceral from the legal.
Despite these insurmountable flaws, few politicians are willing to say the obvious about these reparations lawsuits: They are meritless. Instead, politicians and activists continue to give false credence to the idea that a court will order up to a trillion dollars of damages for the descendants of slaves. The reason is that reparations have been described as a "litmus test" for black leaders. To question the basis of reparations lawsuits or defend targeted companies is to invite the ire of the overzealous.
Consider the modest statement of Carole Brown, senior vice president of
Lehman Brothers brokerage firm, one of the companies sued in the reparations
lawsuit. When asked about the lawsuit, Brown simply stated that "the Lehman
Brothers in the 1850s is not the company that it is today."
Even this modest statement led to a scathing personal attack by Ald. Dorothy
Tillman (3rd) that had disturbing racial overtones. Because Brown is black,
Tillman demanded her resignation from the CTA board on the grounds that "if
she's that insensitive as an African-American woman not to understand the
effects and residues of slavery, she certainly can't represent us on the CTA
board." While this is the first indication that CTA board members are
appointed to represent racial groups, Tillman added that "she [Brown] should
have kept her mouth shut and said, "I'm not going to speak against my
people."
It is shrill, unhinged attacks like Tillman's that reveal the problem with
the reparations movement, where anyone stating the obvious is subject to
attack as disloyal or an Uncle Tom. Instead you have frivolous statements of
entitlements from leaders like Ald. Carrie Austin (34th), proclaiming on
reparations that "I want 40 acres and a Lexus. You can keep the mule."
Austin is not alone. Civil rights activist Al Sharpton once demanded in 1978
that Ed Koch, then the mayor of New York City, support the payment of $50
billion in reparations and an agreement to set aside all summer jobs in New
York City for black youths exclusively. Obviously, such claims are intended
to achieve popularity, not results. However, they reveal the corrosive
element within the reparations movement where a political symbol is no
longer tethered by any legal or limiting principle.
Black publications have also fueled this atmosphere of unrealistic and often
unlawful expectations. In April 1993, Essence magazine started one of the
biggest tax scams in history. Essence editor Lena Sherrod wrote a piece
informing readers that "The People's Institute for Economics" had calculated
the current value of 40 acres and mule at $43,209. She told readers that
they could claim a black refund "on line 59 of [tax] form 1040--which asks
you to list `other payments"--simply enter $43,209 in `black taxes' and
compute accordingly."
Thousands followed Sherrod's directions and the Internal Revenue Service was
deluged by refund requests, often with a copy of the Essence article
attached. Incredibly, the IRS paid out tens of millions in such refunds
before realizing the mistakes. Some African-Americans have now been fined
and some tax preparers have recently gone to jail over the scam. Thousands
of others have been ripped off for hundreds of dollars by con artists using
the promise of $43,209 in reparations tax credit.
A few years after the scam took flight, Essence ran a brief reference to the
alleged rebate and noted "although many historians" supported the claims,
the IRS did not. This meek quasi-retraction, however, has not been enough to
stop the urban legend of reparations tax credit started by Essence.
While wildly popular, the use of legal or tax claims for reparations serves
only to create false and dangerous expectations. With each legal defeat or
criminal fine, the sense of injury and powerlessness only increases. Black
leaders should serve as responsible stewards in their communities and
publicly caution against such meritless claims. The inescapable fact is that
reparations have always been a political issue that can only be resolved in
Congress. It is there, as citizens of all races, that we should debate this
question and decide the question openly, fairly and finally.
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JWR contributor Jonathan Turley is a professor at George Washington Law School.
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