Reparations and State Accountability The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Page, Jennifer Marie. 2015. Reparations and State Accountability. Doctoral dissertation, Harvard University, Graduate School of Arts & Sciences. Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:17467498 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA Reparations and State Accountability A dissertation presented by Jennifer Marie Page to The Department of Government in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the subject of Political Science Harvard University Cambridge, Massachusetts April 2015 © 2015 – Jennifer Marie Page All rights reserved. Dissertation Advisor: Professor Dennis Thompson Jennifer Marie Page Reparations and State Accountability Abstract In the United States, many associate the idea of reparations with the longstanding African American claim of being owed redress for slavery and Jim Crow. Many defend the black reparations claim based on the exceptional nature of the hardships that African Americans have endured: paying reparations to blacks need not open a Pandora’s Box of other grievances, it is argued. My dissertation puts forward a theory of reparations in the domestic liberal democratic context, grounded in a variety of real world cases, that suggests that governments owe reparations in a much wider range of situations than is usually recognized. Though some compelling reparations claims refer to racialized state-sponsored injustices (e.g., Japanese American internment, the illegal annexation of Hawaii, the Tuskegee syphilis study), others have little to do with race (e.g., eugenical sterilization surgeries, LSD experimentation conducted under the CIA’s MKULTRA program, harms to “Atomic” veterans). The argument for paying reparations to blacks is grounded in an argument for liberal democratic governments to pay reparations whenever political power is abused. The core claim of the dissertation is that the government is unaccountable at the very times when it matters the most morally. When an injustice is conducted according to the law, not only are the activities of state personnel and taxpayer resources channeled towards unjust ends, an individual who is harmed does not have a viable means of recourse against the state. Sovereign immunity, the legal principle that the government cannot be sued without its consent, or “the King can do no wrong,” precludes redress in the majority of cases. Reparations seekers may appeal to the legislature, but this is an unreliable avenue to redress. I argue that reparations iii claims are fundamentally about the government’s accountability for injustice, and that reparations claimants are reasonable to call state power to account. On an accountability-based theory of reparations, liberal democratic governments should recognize that the safeguards against the abuse of power are not infallible, and observe a norm of redress. A liberal democracy that willingly takes responsibility for its abuses, apologizes, and pays reparations demonstrates its adherence to its legitimizing commitments. iv Table of Contents Acknowledgments ix 1 Introduction 1 1.1 Reparations and State Accountability: The Central Argument 11 1.2 Historical vs. State-Sponsored Injustice 15 1.3 Outline of the Dissertation 28 1.4 Conclusion 33 2 An Accountability-Based Theory of Reparations 36 2.1 Reparations as Compensation? 37 2.2 An Accountability-Based Theory of Reparations 43 2.3 The Significance of Reparations 50 2.4 When is the State Responsible for Injustice? 65 2.5 Conclusion 74 3 The Injustice of the State 75 3.1 Reparations for Structural Injustice? 77 3.2 State vs. Societal Injustice: The Case of Eugenical Sterilization Laws 81 3.3 Theorizing State-Sponsored Injustice 88 3.4 Towards a Norm of Redress 111 3.5 Conclusion 116 4 Historical State-Sponsored Injustice 119 4.1 Retroactivity, Reparations, and the Law 122 4.2 Institutional Hypocrisy vs. Institutional Benightedness 131 4.3 Liberal Democracy and Progress 139 4.4 Metaphysical Issues in Intergenerational Justice 146 4.5 The Moral Status of Citizens: Who Has Dirty Hands? 153 4.6 Conclusion 166 5 Injustice: A Reappraisal 169 5.1 Tragedy, Injustice, and Resentment 171 5.2 On Wrongful Harms and Wrongfully Harming: What is Owed? 180 5.3 The Harm of Injustice 190 5.4 In Praise of Blaming the Government 201 v 5.5 Conclusion 219 6 The Case for a Federal Reparations Commission 222 6.1 Litigating Reparations Claims: The Problem of Sovereign Immunity 224 6.2 Towards a Norm of Redress: The Case of the Indian Claims Commission 244 6.3 The Legislative Alternative to Judicial Redress 254 6.4 The Case for a Federal Reparations Commission 263 6.5 Conclusion 274 7 The Case for Black Reparations 276 7.1 Affirmative Action as a Redress Program 278 7.2 Monetary Reparations: Why and How? 304 7.3 The Objection from Distributive Justice 314 7.4 Conclusion 325 8 Conclusion 329 Works Cited 332 vi List of Figures Table 1. Two Bases of Domestic Reparative Justice 20 Table 2. Wrongful Harms and Wrongful Actions: What is Owed? 189 vii Page intentionally left blank viii Acknowledgements I have been fortunate to have a wonderful dissertation committee. Dennis Thompson has given me extensive feedback over the years, and his concrete suggestions about what worked and what didn’t helped to shift the dissertation’s overall argument in a more productive direction. Nancy Rosenblum helped me identify weaknesses in the practical parts of the argument at pivotal moments in the writing process, and has always been supportive of the project’s ambitious nature. Michael Frazer has been encouraging and sympathetic to the dissertation ever since I started working on it, and has an excellent eye for the big picture and the miniscule details alike. Having Adrian Vermeule as a committee member has allowed me to go much deeper into the practice of reparations claims, since I knew there would be a safety net for the legal stuff that I would be sure to get wrong as a political theorist without a law degree. The dissertation has benefited from my test driving many different versions of the chapters in a number of academic settings. These include the Midwest Political Science Association Annual Conference, the Oxford Graduate Conference in Political Theory, the Sciences Po Graduate Political Theory Workshop, the Boston Area History, Institutions, and Politics Workshop, and two Harvard-based workshops, the Graduate Political Theory Workshop and the Ash Center Workshop. I am especially grateful to those who gave formal comments: Jason Anastasopoulos, Angela Cummine, Prithvi Datta, John Harpham, Carly Knight, Tanja Pritzlaff, Emma Saunders-Hastings, and Bernardo Zacka; as well as to Adam Lebovitz, Andrei Poama, and Tom Theuns for insightful feedback that might as well have been a prepared set of comments. Special thanks to James Brandt, Jacob Eisler, Jon Gould, and Stan Veuger for reading entire chapters, and to Tim Beaumont, Tae-Yeoun Keum, Erin McCammack, Lindsay Moss, Morten Olsen, and Will Selinger for conversations that helped me form some of my ideas. Steve ix Cicala, Brad Johnson, Vanessa Williamson, Evann Smith, and Chiara Superti have all given me valuable empirical reading suggestions. Of my peers, special recognition of three individuals is in order. Besides my committee, the brilliant and incisive Rita Koganzon has read more of this dissertation than anyone—taking into account not only the chapters that actually made it into the dissertation, but also deleted chapters that I spent months writing in order to respond to certain irksome questions that challenged the foundational assumptions of the project. The surviving chapters owe much to Rita’s substantive suggestions big and small, and to her superior grammatical sense. The estimable Jessica Simes has played a huge role in the interdisciplinarity of parts of the dissertation. I have asked Jess countless sociology questions and badgered her for reading suggestions. I have absorbed sociological insight and lingo by osmosis, and instead of wondering what a sociologist would think of some of my normative claims, I have had a dear friend to listen to practice presentations and to read my words. Finally, Olamide Olatunji wrote her senior thesis on reparations under my supervision. In addition to it being an absolute joy to advise her thesis, conversations with Lami spurred me to rethink some of my own assumptions about reparative justice. When I read the draft of Lami’s thesis all the way through, the discussion of affirmative action was so persuasive that I had to go back to the drawing board. Peter Hall, Ryan Enos, and Jennifer Hochschild allowed me to write term papers on topics related to the dissertation, and helped me to see issues early on that I would eventually have to tackle. I was moreover fortunate to be able to talk to Eric Beerbohm, Astrid van Busekist, Dan Carpenter, Richard Fallon, Aaron Garrett, Saul Levmore, David Lyons, Charles Mills, and Tommie Shelby about the project when it was in its initial stages. Rhoda Howard- Hassmann was especially generous with her time, meeting with me for an entire morning and x commenting extensively on a more empirically-oriented version of Chapter 5. Professor Howard- Hassmann also exercised a huge influence on the dissertation before we ever met as the creator of the Political Apologies and Reparations website, which features a database that opened my eyes to a broader range of cases than I had been considering in thinking about my dissertation subject. Charles Griswold was a teacher, advisor, and mentor to me throughout my undergraduate years.