Originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices' values from driving the process.
In his poignant and widely discussed Atlantic essay, “The Case for Reparations,” Ta-Nehisi Coates recently laid out in painful detail the history of slavery and brutal racial violence in the United States. Despite the title, however, the essay is less a case for reparations than a case for talking about reparations, or at least talking about the ugly facts of our history. Coates offered no policy prescriptions, no details about how reparations will work or who will get them. “What I’m talking about is more than recompense for past injustices,” Coates insists, “—more than a handout, a payoff, hush money, or a reluctant bribe. What I’m talking about is a national reckoning that would lead to spiritual renewal.” What Coates is talking about is, in short, something akin to South Africa’s post-apartheid Truth and Reconciliation Commission, a quasi-judicial body empowered to investigate past social injustices and human rights abuses, facilitate testimony and confession, grant amnesty and award monetary damages. The process would entail more than a cash payment from the American government to its black citizens; it would be an occasion for national repentance and renewal. “Reparations would mean a revolution of the American consciousness,” he insists, “a reconciling of our image as the great democratizer with the facts of our history.”
Yet Coates’ serious critics did not disparage his history. In response to the litany of historical evils visited on enslaved Africans and their descendants in America, Jason Riley in the Wall Street Journal offered “No disagreement there.” In National Review, Kevin Williamson conceded Coates’ main thesis that “Anglo-American practice, despite its liberal rhetoric, was a system of racial apportionment, and a brutal one at that, for centuries, with real-world consequences that continue to be large facts of American life to this day . . ..” The real disagreement seems to be about whether reparations, circa 2014, are the best way (or even a way) to alleviate the gross racial disparities that persist in American life. Critics of reparations, unsurprisingly, think not, based on the (arguable) long-term failure of centralized, bureaucratic cash-transfer anti-poverty programs. Conservatives like Riley and Williamson instead champion entrepreneurship, property rights, equal protection under the law, and school-choice programs for children in poor and failing school districts.
The two sides are talking past each other. A policy of reparations this late in the game, critics insist, will be counterproductive, distracting, and ultimately harmful for the very citizens it is meant to help. Coates, however, is much less concerned with the policy details than with the question of justice. We must first determine whether reparations are just, he insists, and then we can discuss policy. But there is disagreement, too, on whether reparations, administered purely on the basis of race a century-and-a-half after the formal abolition of slavery, are in fact just. On this question, Coates appeals in his prologue to John Locke’s Second Treatise, where Locke teaches that if in the state of nature there is “injury done to some person or other and some other man receives damage by his transgression . . . he who hath received any damage, has, besides the right of punishment common to him with other men, a particular right to seek reparation.” Yet the rightness of reparations, in a Lockean sense, is widely acknowledged. Lockean reparations amend a discrete injustice meted out by one individual to another, and these kinds of reparations provide the basis for our system of tort law. Reparations for past injustice, generations later, with no specific allegation of discrete harm from one individual to another, but an acknowledged history of pervasive and systemic racism with consequences still felt today, is another matter altogether.
As a historical case that serves a larger point, Coates offers Edward Coles as a noble example of someone who took up the cause of reparations in the nineteenth century and ostensibly provides support for them today. A “protégé of Thomas Jefferson who became a slaveholder through inheritance,” Coates tells us, Edward Coles “took many of his slaves north and granted them a plot of land in Illinois.” Yet Coles’ example supports the Lockean kind of reparation – an attempt to amend or alleviate a discrete wrong done to a specific person.
A forgotten figure in American history, Coles was a remarkable man whose life illuminates our nation’s tragic early history. The best resource available on Coles’ life and politics—next to Coles’ own 1844 autobiography—is Suzanne Cooper Guasco’s Confronting Slavery: Edward Coles and the Rise of Antislavery Politics in Nineteenth-Century America. Guasco’s portrait of Coles is fascinating while rigorous, critical yet fair. Born into a “wealthy slaveholding family in 1786,” Coles came of age among the Virginia elite. A distant cousin of Dolley Madison, Coles served as James Madison’s private secretary and counted him as a friend and mentor. He maintained a correspondence with Thomas Jefferson (whom his brother worked for as a secretary) and rubbed shoulders with James Monroe, Patrick Henry, and St. George Tucker.
During the 1820s, Coles served as Governor of Illinois during the state’s constitutional convention, and in the early 1830s he participated in the convention debates in his ancestral state of Virginia, which were animated in large measure by Nat Turner’s infamous slave rebellion in 1831. He finally settled in Philadelphia, where he deliberately cultivated friendships across party and sectional lines. A disciple of Jefferson and Madison, Coles was nevertheless an antislavery nationalist and, when the time came, a Union man. There was an additional pang, and a tragic irony, then, that Cole’s son Roberts died at the Battle of Roanoke Island defending Old Dominion. The sectional and ideological issues that tore the nation apart divided Coles’ family, as it divided the families of so many others.
As Guasco notes, Coles was politically active and socially connected during each of the three major periods in early American history – Revolution (1760-1800), Early National (1800-1830), and Antebellum (1830-1860) – and he died just weeks before the ratification of the Fourteenth Amendment in 1868. Still, what makes Coles’s life remarkable is not that he lived through such a transformative period in American history and interacted with so many of its central figures. What makes his life remarkable, and indeed memorable, is that he was willing to do what almost no one else with a similar class and family background was willing to do: he freed his slaves during his own lifetime and made provisions for them to gain education, own property, learn trades, and raise families. In short, he made reparations.
The decision to do so was ideological through and through. During a moral philosophy class with James Madison—not the James Madison, but Madison’s cousin who was an Episcopalian Bishop and President of the College of William and Mary—Coles resolved that slavery was a moral wrong. In Madison’s class, Coles read Vattel, Locke, Smith, Paley, Burlamaqui, and Montesquieu. He also read the Scottish Common Sense writers and the radical French philosophes. Madison was an ardent republican, a champion of the American Revolution, and a devotee of Lockean natural rights. It was Madison’s duty as a teacher, he insisted, to train students “not only to a knowledge, but [also] to a just sense of the duty of asserting and maintaining their rights.”
The foundation of the republican solicitude for rights, Madison taught, was a “love of equality” which forms “the basis of all rights and all social happiness.” It was in Madison’s moral philosophy class, Coles claimed in his autobiography, that his attention “first awakened to the state of master & slave.” In one particular class, Coles recollected, he raised his hand during a lecture on the rights of man. His question: “How can you hold a slave—how can man be made the property of man?” To which Madison responded that it “could not be rightfully done, . . . [and] would not be justified on principle.” But, in Coles’ retelling, Madison went on to claim that slavery persisted because of “ our finding it [already] in existence, & the difficulty of getting rid of it.” To this Coles responded by asking a rhetorical question: Was “it right to do what we believe to be wrong, because our forefathers did it?”
As he worked through these issues, Coles concluded and resolved that he “would not & could not hold” a “fellow-man as a slave.” That resolution was tested two years later when Coles’ father died, leaving Coles a 782-acre plantation and 20 slaves. As Guasco notes, it would take “twelve long years of wrestling with his own convictions, his own ambitions, and his own selfish desires” before Coles finally set his enslaved laborers free. But part of Coles’ reluctance to free his slaves stemmed from a sense of duty to them. There were very few plausible avenues to emancipation. Coles first considered emancipating them and hiring them to work the plantation as freemen, but the laws of Virginia required freedmen to emigrate from the state within a year or risk being re-enslaved. For a time, then, Coles resigned himself—as Jefferson, Madison, and his other mentors had done—to renouncing slavery in the abstract while maintaining property in man. Ultimately, however, he concluded that he “could do better for myself, & for the Negroes, to remove & take them with me to the Country North West of the Ohio River,” where he could liberate them without legal obstacle.
In April 1819—twelve years after his father’s death—the thirty-two-year-old Coles moved with his slaves to the free state of Illinois. Coles’ desire was to see his inherited human property transition from “slavery and poverty, to freedom and independence,” and he made provisions for each person over the age of twenty-three to be given a 160-acre tract of farmland. His vision and hope for his former enslaved laborers was that they would live in a community of free labor, black as well as white. What he found instead, as Guasco chronicles, was a “frontier community very different from that of his expectations.”
Slavery persisted in the state under the guise of indentured servitude, and whites—often poor and landless—harbored a pervasive anti-black prejudice. Free labor often meant, in both theory and practice, free white labor. Coles discovered that the free republic premised on equality was, in many ways, as foreign to Illinois as it was to Virginia. “It is within this context, as well,” Guasco tells us, “that he discovered that a minority of his fellow Illinoisans intended to legalize slavery.” Coles, then, decided to enter the political arena to shape the state’s trajectory, with the hope of securing a free republican future.
That Illinois would amend its Constitution and laws to explicitly allow slavery was a real possibility, and Coles argued forcefully against slavery during a successful gubernatorial campaign in 1822. His rhetorical strategy was to connect the antislavery cause to the principles of the American founding. The republican principles upon which the Americans based their revolution, Coles asserted, were antislavery at their core. Yes, the American founders failed to free their slaves; but they recognized the contradiction. “It is certain,” Coles acknowledged, “that they are much to blame for not having taken . . . an effectual step for the gradual emancipation of their slaves.” Still, they set “so noble an example” and “proclaimed to the world the inherent & inalienable right of man to his liberty.” It had fallen to the next generation to make good on that commitment.
Coles’ nationalistic and patriotic antislavery rhetoric was not just rhetoric. He believed it. In correspondence between Coles and Thomas Jefferson in 1814, the Sage of Monticello confessed to the young Coles his regret that the founders, “nursed and educated in the daily habit of seeing degradation,” did not go “the whole length of the principles they had invoked themselves.” Still, Jefferson commissioned the “younger generation” to combat “oppression wherever found.” Coles, unlike some abolitionists in the nineteenth century, revered Madison and Jefferson and counted them as mentors and friends. Yet he was keenly aware that their failure to follow through with their own antislavery impulses undercut their credibility as sources for mid-century antislavery politics. To his credit, he did not gloss over that fact.
In his autobiography, Coles recounted that Madison had assured him that he would free his slaves in his final will. Coles was disappointed, then, upon Madison’s death, to discover that the former president and Father of the Constitution did not make good on the promise. Coles immediately went to Montpelier to plead with his cousin Dolley; yet while he was there he stood and watched in sorrow as the First Lady sold a woman and her children to a slave trader, who was circling the plantation “like a hawk among pigeons.”
“Madison’s inaction,” Guasco notes, “robbed [Coles] of a potent example proving the legitimacy of a central feature of his antislavery nationalism – that the Founders were antislavery statesmen.” The strong anti-black prejudice Coles encountered in free states no less than slave states, and the stubborn refusal even of Jefferson and Madison to make good on their antislavery principles, led Coles to grow pessimistic about the possibility of an interracial republic, premised on equality and free labor, existing in North America. Like many others in the nineteenth century, Coles came to believe that a policy of emancipation and black colonization abroad was the only plausible path forward.
Although Coles lived to see the election of a president who shared his antislavery nationalism and to witness the legal abolition of slavery through the passage of the Thirteenth Amendment in 1865, he never regained hope that whites and blacks could live together, peacefully, in a free American society. Significantly, Coles left, in his last will, a large donation to the American Colonization Society. If nothing else, his life demonstrates the complexity of the political and social issues involving race, slavery, and liberalism in the nineteenth century. And although Coles’ life offers no easy lessons for our current policy debates, Guasco’s fine book is an important resource not only for scholars working on this period but for citizens who continue to wrestle with the meaning and legacy of an institution that stands as a tragic contradiction at the heart of the American founding.