The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law

eleven Considering Reparations for Dred Scott

฀177 e l e v e n p Considering Reparations for Dred Scott Alfred L. Brophy AMONG THE many tragedies of our country’s history of slavery is that it left a deep, virtually inexhaustible well of injury. There is no way to provide compensation for each injury of the past or for the unspeakable crimes of brutalization that took place under slavery.1 And those crimes continue, in some ways, to multiply, for the injury and lack of hope continue from one generation to the next. As Randall Robinson has stated it, slavery “produces victims ad infinitum, long after the active state of the crime has ended.”2 It is humanly, as well as financially, well-nigh impossible to provide a complete remedy. Some argue that there have been offsets, from the Civil War to the war on poverty; but seemingly no matter how large the payments, a bill for tort damages—were it ever presented— would be astronomical.3 As a result, reparations advocates must find some principles for deciding which tragedies and which claimants will receive some form of compensation . But advocates of reparations have larger problems than trying to quantify the harms or select among recipients or apportion even limited 178 p Alfred L. Brophy payments. For those they would ask for compensation—the American voting public—do not want to hear those claims. When the Mobile (Alabama ) Register polled on reparations for slavery in 2002, something like 67 percent of black Alabamians were in favor, while something like 5 percent of white Alabamians were in favor. It is “something like” because some white people became so enraged at the mere suggestion of reparations that they could not complete the poll. As a result, it was difficult to get an accurate sample.4 We have a long way to go before people are even willing to contemplate, let alone vote for, reparations. The figures for apologies are somewhat more balanced. About 25 percent of white Alabamians believed in 2002 an apology for slavery was appropriate. There are many places one might look for talk about reparations. There is talk of reparations (and occasionally action) for large-scale crimes, from the internment of more than 100,000 Japanese Americans during World War II to the deprivation of property from families of victims of the Holocaust . There is also talk of reparations for crimes that were large but more focused, such as the Tulsa riot of 1921. There has also been more general action: the Virginia, Maryland, North Carolina, Alabama, and Florida legislatures have offered apologies for their involvement in slavery, and even a few universities have investigated their roles in the institution of slavery and apologized. Brown University’s Steering Committee on Slavery and Justice’s comprehensive investigation of Brown’s connections to slavery serves as a model for other schools.5 There remains resistance to talking about reparative action on a nationwide scale, which would address in significant ways such issues as the chasm between African American and non-Hispanic white income. The Great Society may provide a model for the scope and expense of such a program; as yet, we are too far away from such comprehensive plans to have a good idea of what they might look like or even what they would cost.6 Those large-scale, often amorphous programs are part of an attempt to deal with general societal discrimination, which the Supreme Court (and the American public) have viewed with suspicion in recent years.7 Something that is often missing from “reparations talk” is a specific plan for repairing past tragedies. This volume on the Dred Scott case invites two sets of questions related to reparations. First, what was the culpability of the Supreme Court in Dred Considering Reparations for Dred Scott p฀179 Scott? How do we even measure that culpability? Should we ask questions like, Was the Supreme Court merely carrying out “the law” (however that is interpreted) or was it contributing its own proslavery interpretation? What effect did the decision have? Second, what are we to make of that legacy today? Is there something that should be done either by the Supreme Court or someone else to repair for this decision in particular? Should we separate Dred Scott from the rest of our nation’s actions to protect slavery? This essay uses Dred Scott as a site for exploring the issues of reparations for specific past...