Kenneth D. Gartrell

By: Kenneth D. Gartrell

Viewed from an economic perspective, proposed reparations to be paid to living and future African Americans, as descendants and therefore victims of slavery, are a form of economic damages. It is an interesting lesson to consider how, in general terms, a dispassionate economist would approach the question of economic damages in reparations for slavery, especially if the analysis can be kept free of politics and rhetoric. Such an analysis is useful because it raises issues and considerations that are far too often overlooked in the heated climate of racial politics.

Economic damages are determined as of the date of harm and looking forward by estimating the extent of damages from a certain harmful act to the aggrieved party based on a consideration of the “real world” that occurred due to the act, in comparison to the world which would have occurred “but for” the harmful act.

To be equitable and efficient, the quantity of damages must be reasonably determinable and considered in light of the value of any mitigation of losses.

In assessing damages, the number we are looking for is the sum and total of the value lost by each person who was enslaved as of the time they were enslaved and at any dates of harm in between then and now which were incidental to the original act of enslavement.

The first problem that African Americans would have to contend with, if their quest for reparations was based on a claim of justice (rather than political pandering or coercion), is to specify accurately what the “but for” world would have looked like for each of the human beings taken into slavery. If, let us say, the individuals would have remained in Africa, and if Africa would have developed along the lines of the Unites States because of the talents of these people or others, then of course economic damages would be large and in order of the value of the cumulative wealth of the United States.

On the other hand, a competent lawyer might argue that economic damages are small simply because, in reflecting on the current state of life and living in Africa, the likely “but for” world from the date of enslavement till today would have been one of subsistence and a continual threat of political disruption, corruption, disease and murder. In such a “but for” world, it is not even clear damages would be positive in comparison to the “real world” we know and have known to exist under and since slavery in America. Negative damages are admittedly unusual, but it does happen and might happen from such a point of view that damages are negative. That is to say that the claimants are today better off than they would have been had their ancestors not have been enslaved.

While the concept of negative damages is not one likely to be accepted gracefully, it is not an impossible outcome. Many, in fact most, Americans today enjoy a better life because of the struggle of their prior generations—slaves or otherwise. It is far from obvious that, with the benefit of knowledge about the state of the world today, the enslaved ancestors of today’s African Americans themselves would not say that their own sacrifice was worth it to bring their descendants into a world of opportunity and democracy.

In addition to great and reasonable doubts about the measure of economic harm, if any, resulting from slavery, the accurate quantification of damages would surely have to consider important mitigating factors. One of the most valuable of all possible mitigating factors would have to be consideration of the value of the 300,000 or so military deaths in the American Civil War. These casualties of war were largely occasioned at the time by a motive on the part of the soldiers and their families to achieve abolition of slavery. The act was plainly an act of moral atonement and mitigation. In any accurate assessment of damages this fact cannot be ignored and is likely to be highly material to the overall quantification of damages.

A second obvious mitigating factor would be the cumulative cost of the giant social welfare programs aimed at the amelioration of conditions in the African American community during much of the 20th Century. Many billions of American taxpayer dollars have been spent by the Federal, state and local governments for housing, education, social services and medical services – all for the sole purpose of benefiting the African American community and as an act of good faith to remedy the many alleged Civil Rights abuses during and since slavery in America.

No thinking person doubts that slavery was wrong and morally reprehensible. The question of the degree of economic harm and reparations that might be due the ancestors of slaves today, however, is still very much in doubt. In civil matters, monetary awards to plaintiffs can only be achieved when both an act of liability and a measure of economic harm can be proven based on a preponderance of the evidence.

On the one hand, I believe it would be just to hold a trial on the questions of economic damages from slavery. Such a trial would occasion far ranging and careful debate aimed at setting the issue aside now and forever. On the other hand, I believe any resulting measure of damages will in fact be small or negative if undertaken analytically, dispassionately and objectively in the spirit of true justice, as informed by the received common law and the economic theories behind modern legal statutes.