Strict Scrutiny - Open Wound

Episode Date: August 16, 2021

Melissa talks reparations with Katherine Franke, Columbia Law Professor and author of Repair: Redeeming the Promise of Abolition. Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex.

All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray, and I'm your host for this very special episode. As you know, although the Supreme Court's docket is incredibly interesting, there are lots of law related issues going on in the world, and we want to make sure that you are up on them. One of the issues that we wanted to get you up to speed on is the question of reparations for the enslavement of black people in the United States. To be fair, the issue is one

that's been on the radar for some time. The question of reparations surfaced immediately after the United States Civil War and has cropped up again and again in our history in a variety of contexts. The question of reparations, however, is definitely having a moment right now. In a widely read article in The Atlantic, writer Ta-Nehisi Coates outlined the case for reparations, and his article prompted a lot of discussion. It also prompted a congressional hearing in support of a

bill, H.R. 40, that would establish a bipartisan commission to study and develop reparation proposals. Coats, among others, testified at the hearing. And here's a little snippet of his testimony. The typical Black family in this country has one-tenth the wealth of the typical white family. Black women die in childbirth at four times the rate of white women. And there is, of course, the shame of this land of the free, boasting the largest prison population on the planet, of which the descendants of the enslaved make up the largest share. The matter of reparations is one of making amends and direct redress, but it is also a question of citizenship. In H.R. 40, this body has a chance to both make good on its 2009 apology for enslavement and reject fair weather patriotism.

To say that a nation is both its credits and its debits. That if Thomas Jefferson matters, so does Sally Hemings. That if D-Day matters, so does Black Wall Street. That if Valley Forge matters, so does Fort Pillow. Because the question really is not whether we will be tied to the somethings of our past, but whether we are courageous enough to be tied to the whole of them. Reparations has even made it into electoral politics. In July 2019, Democratic presidential primary candidate Marianne Williamson vowed to take up the question of reparations for African Americans if she was elected president. Obviously, she was not elected

president, but that has not dimmed the interest in the topic of reparations and the prospect of grappling with our imperfect past. So we thought this was a perfect time to dig into the topic of reparations. And fortunately for us, our guest has also been thinking about it. So please welcome back to the pod, Catherine Franke, the James L. Dorr Professor of Law at Columbia University and the author of Repair, Redeeming the Promise of Abolition, which was released in hardcover by Haymarket Press in 2019 and will be released in paperback with a reader's guide this August. Welcome back, Catherine. Great to see you, Melissa. Thanks for having me back.

Well, it's great to have you back. So this is a really timely topic. And to set the stage for the discussion, as you note in the book, the issue of reparations is not new, even though it does seem to be having a moment right now. Why is that the case? Why are we talking about this now since it's been in the ether for some time? But why is it so top of mind at this particular moment? Well, I think there are a number of reasons why reparations has gone from kind of a niche

issue in certain parts of the Black community to being a mainstream political event. One is that we had a number of African-American people running for president in this last cycle. And most of all of them, and then the other Democratic candidates, white candidates, raised the issue of reparations as a central question of racial justice in our country. So to have the issue of reparations brought up as a legitimate mainstream racial justice question, I think put it at the center of our political debates in a way that it hadn't been before. And part of why I think those presidential candidates raised it is because of the demonstrations, protests, and activism

that had been taking place last summer around the murder of George Floyd and other members of the Black community by the police. So there's a swelling movement in the streets about reparations that I think has grown in response to police violence. I think we're also seeing many more black elected officials, whether it's on the town level, the city level, and we're seeing reparations issues coming up in municipalities across the country. And then it's percolating up into national politics, finally, in a very serious way. All of that, I think, is correct. And again, the representation issue is one that I think we should really underscore. The fact that more African-Americans are moving into public life

and raising these questions has made the issue of reparations more top of mind. But we're also talking more about, and in more sustained ways, about the prospect of reparations more top of mind. But we're also talking more about, and in more sustained ways, about the prospect of the systemic or institutionalized legacy of racism. And that, I think, also surfaces the issue of reparations, this idea of dealing with a past that is not simply episodic, but actually has a lasting impact on the material conditions in which minorities live. I think that's absolutely true. And the racial wealth gap that has also moved its way into mainstream journalism, economics, and media and conversations across the country, I think has also cast a light on what have been the enduring structural forms of second-class or caste status for Black people in this country.

And reparations are one way to both acknowledge that enduring form of structural inequality that Black people in this country experience, and also one way to begin to dismantle it. So your book, Repair, makes the case for reparations by examining some historical examples from the postbellum period in which reparations were explicitly considered for newly freed African Americans. So one of those examples is Port Royal in the Sea Islands of Georgia, and the other is Davis Bend, Mississippi, the former plantation home of Jefferson Davis, who also happened to be the president of the Confederacy.

Can you tell us a little bit about each of these examples and the way in which reparations was considered, whether they actually happened, and what the lasting impact of those proposals were in those communities? Absolutely. You know, I think there are many people today who think reparations is a very modern concept and a kind of radical one. And part of why I tell these historical stories in the book is to make clear that reparations were part of the national conversation and were kind of taken for granted, not just at the end of the Civil War, but actually in the middle of the Civil War. So in July of 1861, the Northern troops moved into and occupied the Sea Islands in South Carolina

and Georgia, the area that today we know of as Hilton Head Islands and those islands. And it's just a breathtakingly gorgeous place. There were about 15,000 enslaved Black people living on plantations in that area. And as soon as the Federal troops arrived, they announced that by their very presence, they emancipated those Black people. The white enslavers fled to the mainland, and the white soldiers from the North were there with both a military project and a humanitarian project. You know, today we would understand those people as refugees. We didn't have that term back then, but the military understood it was part of their responsibility to take care of

the formerly enslaved people who became free just by the presence of the Northern troops. And what's really remarkable, many things are remarkable about this period of time, but one of them is that several of the white military leaders who were present there at the Sea Islands witnessing what the vestiges of enslavement looked like and how powerful the black people were who lived there is that they asked them, what do you want? What would freedom mean to you? And all of the black people of the Sea Islands said, what we want is to have a place of our own and some resources in order to be able to farm this land. We don't want to leave this land. Our parents are buried here. Our grandparents are buried here. This is the only place we've known. And it's incredibly beautiful and incredibly productive land. And so what the Northern military began, remarkably, was a project of reparations. And they actually use that term, reparations. Rufus Saxton, who was one of the military officials who was in charge of this project, said that the Black people of the Sea Islands hold an equitable mortgage on this land, not only for a kind of backward-looking sense of justice, for the horrors of enslavement, not only the stolen labor, but the stolen lives and the

violence of it, the selling of family members away, the rape, the murder, the torture. He saw that and was so moved by it. He said, of course, we have to repair some of that. But he also recognized that a group of people in such poverty could never be free if they didn't have the material resources to build new free lives. And so reparations was understood as a backward-looking form of repair for slavery, but also a forward-looking way in which emancipation also entailed real freedom, not just being set free into a second-class status of indentured servitude, essentially. And so they started seizing the land, the military officials did, the federal government did, of the Sea Islands and allocated

it to the freed people as a project of reparations in substantial plots where multiple family units would live together collectively on the land. And it was understood that the community, the Black community, was to be in charge of that land and what freedom would look like, not just nuclear households. And so this was undertaken for a short period of time in the Sea Islands while the military campaign was being waged. And then there was some of that land was also auctioned off at below market prices to black people who had accumulated some money in selling crops, et cetera, and so who got title to that land. So there was a title office where real deeds were given out to black people. This is your land now. So they basically took these abandoned plantations whose owners had fled to the mainland,

and they parceled them out. They broke them up and parceled them out into plots of lands that could then be given to these newly freed African-Americans who had once worked that same land. Absolutely. And this is before Sherman's 40 Acres and a Mule, which came later and was modeled on what happened in the Sea Islands. And so that was on the mainland where they took 40 acres and some tools in order for people to have, Black people to have free lives. So it sounds like it was incredibly successful in the Sea Islands. You know, they had a vision, they executed this vision, and the African Americans took title to the land. So what happens next? Well, one of the things that was also remarkable

about this is that many Black women got title to land as heads of households. And, you know, Melissa, you know this as a person who's an expert in family law. White women could not own land in their own names because they were not actually legal subjects. They were subsumed under or covered by, as we say, the legal identity of their husbands or fathers. But black women were being given to land by the federal government in a way that was really quite revolutionary. So it was very exciting to see both Black men and Black women and Black communities being built in the Sea Islands as a real radical project of freedom. And it's a model for what we might do today is part of what I argue in the book. Well, it's a radical reordering of the way we understand households and family. So the collective community can own this land. Women who would ordinarily be subsumed by their husbands or their fathers can own land independently.

And then these Black men who are newly freed are understood as title holders well before the 14th Amendment or the 15th Amendment come along to do so. Absolutely. They also had an idea of a commons, which we've lost today, is that there was land that was farmed collectively, and then everyone had their little homesteads also in the land. So there was a very different idea about what it means to have a place, what it means to have a community, and what it means to rebuild new free lives than what we see today. Almost like a kibbutz of sorts for newly freed slaves. a community and what it means to rebuild new free lives than what we see today. Almost like a kibbutz of sorts for newly freed slaves. Maybe. I'm a little hesitant to borrow a Hebrew word to describe it. Sort of thinking about how to, I mean, because it is so foreign from what we understand

about private property in the modern sense. I mean, it is truly radical. But for people who had been property to then become legal subjects and free and be able to own property in a way that was different than how white people modeled owning property. And of course, remember, this is all land that was stolen by white people from native people who also had a very different idea of human relationship to land. And so there was not only a radical idea of freedom, but also a radical idea of place and home that was modeled through the way the black community wanted to organize their lives. Does it last and does it continue into the modern age? Why don't we see this more radical vision of property ownership, of black ownership, black enterprise in the Sea Islands today? Well, this experiment, this amazing experiment in the Sea Islands and just outside of Vicksburg on the Davis plantations lasted until President Lincoln was assassinated. Johnson comes into

office and one of the first things he does in office is grant amnesty to the former Confederates and restores all of their property except in humans. And so all of their land is returned to them violently in the Sea Islands because the Black people did not want to leave, as you can imagine, and have their land returned to the people who enslaved them. Not only was this land to which they had title taken from them violently, but they were also then required by the federal government to enter into year-long labor contracts with the people who had enslaved them before. That's what freedom looked like for the emancipated people of the Sea Islands. And part of what I found most compelling about this example is how it illustrates that there's

a very big difference between being freed and being free. And what we did with Black people in the South at the end of the Civil War is we freed them, but we actually never laid the groundwork for actual Black freedom. That's why I think reparations today is an ongoing obligation and an ongoing requirement to actually realize black freedom in this country. To jump back, I mean, I think both of these examples are really fascinating, in part because they're sort of, to use my colleague Peggy Cooper Davis's term, they're neglected stories. They're hiding in plain sight in our history, and we've never heard of them. So can you say a little bit about Davis

Bend and how this sort of relates to Jefferson Davis, who is the president of the Confederacy, but yet his land gets taken over and given back to these freed black people who worked it at one time, and then they're sort of dispossessed of the land once again. Can you tell that story? Well, in some ways, it's a similar story. And in other ways, it's different. So Jefferson Davis is off leading the Confederacy. His brother, his elder brother Joseph, ran the plantations and actually was an innovator as an enslaver in terms of allowing black people a certain degree of agency while they were enslaved. So they had court, they had dental care.

I was able to get the court records for the Saturday court that they held on the Davis plantation where black people, enslaved people served as judges. So it's like a self-governance by the enslaved. Yes, it was a very autonomous community, even while people were enslaved. And the Davises used a very light hand in managing the actual production of crops at the bend, as they called it. But once the war starts, of course, and the northern troops move into the Vicksburg area in 63, all of the white landowners leave. Joseph Davis leaves. Jefferson's off, of course, fighting the war. And the man who had been in charge, the formerly enslaved man who

had been in charge of managing the plantation actually continues to do so, but as an autonomous Black community. And the Northern troops actually say no white person can set foot in this space. So there actually are no white people and an autonomous and thriving Black agrarian community is created at Davis Bend, of course, only to then be undone later when Johnson returns all of this land to white ownership. And there's a complicated story about the land being sold to the Black community at Davis Bend, but with a very large mortgage that was never forgiven by Joseph Davis upon his death, which was unfortunate. And then his heirs took the land back. We had in both of these contexts really inspiring examples of Black autonomy and Black healing as a form of

reparations. And everything really just turns with the assassination of Lincoln and the Johnson presidency, where not only do we sort of roll back Reconstruction and retrenchment, but you actually have that retrenchment in a very physical and visceral form in these, what you call, utopian experiments in Black freedom? Well, of course, the forms of reparations are unraveled, but the Black Codes are also instituted in which Black people are placed into an obvious de jure form of second-class status and not formal enslavement in the way that we saw it before the 13th Amendment, but really a web of laws that locked Black people into a subservient role and a subservient status in the South, but not only. So I love the point that you make in the book that these are truly utopian experiments in Black emancipation. You use that term a couple of times. And it's a

label, I think, that suggests both possibility and promise, but also a kind of impossibility. Like the utopia is something that never really comes to fruition. I think about that because what you describe both in Davis Bend and in the Sea Islands, I think is what Justice Clarence Thomas might actually want for Black people in the current age. I mean, the Sea Islands, I think is what Justice Clarence Thomas might actually want for Black people in the current age. I mean, he is someone, I think, who very much believes in this idea of Black self-governance, Black autonomy, and one that doesn't depend on assimilation into white culture, but actually separation from it. Like Black people, if left alone and outside of white culture, will actually be able to do all right if they have

the economic wherewithal to succeed for themselves. And is that what was happening in these places? And why can't it happen today? Like, what makes this utopian in a way that makes it both possible and impossible? Well, you know, just as Thomas is like a stopped clock, you know, right two times a day. I wasn't going to say it, but it does strike me that he's someone who's from the Sea Islands of Georgia. That's where his family... Exactly. And there's a kind of Black nationalism and Black autonomy that I think is quite attractive

that underlies so much of his, certainly his jurisprudence and political thinking. But part of what I think is unfortunate about the way that he thinks about Black autonomy and agency is that he doesn't see the larger societies having to pay any price for it. So it's something that comes for free. accumulated wealth to white people in the society more generally from the ongoing subordination of black people in this country, to me, it is immoral and certainly impractical to think about creating islands of black autonomy without subsidizing it in some way. And that's why the reparations movement is so important. And the call for reparations really miss. Like, it's not simply about apologizing or redress. It is about actually redistributing resources in a way that gives individuals an opportunity

to sort of come back from a past in which their ancestors or those who are close to them were subordinated in some way. And so it is a redistributive project. It absolutely has to be a redistributive project, although I think apology and recognition and relearning our history and all those sorts of things are essential as well. And, you know, there's some people who think that reparations is only about writing a check and handing it to random black people on the street. And there's some who do advocate for that, but I think it's a much more comprehensive thing. So part of what I recognize in the book is that we're in the midst of the largest intergenerational transfer of wealth

we've ever seen on this planet. My parents' generation is passing trillions of dollars to people my age, and 90% of those people are white. And part of why my parents' generation has done so well is because of intergenerational wealth accumulated through real estate, not only, but largely. It's part of what is the basis of the American dream is to buy land or in some cases be given land and sit on it, let it increase in value and then pass along that wealth to your kids. Black people never got in on that deal.

They didn't get in on it at the end of the war and they haven't been able to get in on it since, since then because of redlining and other forms of discrimination. Well, the GI bill, which completely modernized American home ownership, was completely foreclosed to African-American veterans. And there were a number of African-American veterans who would have qualified, but because it was locally administered, they were shut out. Absolutely. That and federal housing loans, et cetera, underinvested or didn't invest at all in Black

people or Black communities. So what I would like to see is a substantial increase in the estate tax. So as that money is moving intergenerationally, it's like we kind of, you know, white people my age, we won a lottery that we don't have any entitlement to. So capture some of that money. We don't have to have 100% estate tax, but significantly higher than where it is now, which is at its lowest ever, capture some of that bounty of whiteness, I would say, and put it into a trust for reparations. And one of the things that I feel strongly we should do is think about community land trusts. There are examples across the country

of communities that are taking urban spaces, urban land, and putting them into trust. We know them well. In New York City, that's what cooperatives are, what co-ops are. And many, many apartment buildings are owned in that cooperative form. But for private wealth and private investment, as opposed to community wealth and community investment. And so Jackson, Mississippi, Baltimore, Maryland, Detroit, Michigan, even Denver, Colorado, and New York City outside my window in Harlem. There are all sorts of interesting examples of community land trusts where land is held by the community for the community outside of the for-profit housing market. And then in places like Jackson, they're also building urban farms and schools and building solar energy collection mechanisms so that they

can be energy independent. So part of what I like about the community land trust movement is the degree to which it enriches and empowers the community, not just enriches particular individuals. It invests in a collective longer-term strategy of healing communities that have suffered the most at the hands of white supremacy and economic disadvantage. This would also be a good point to make a plug for the scholarship of Bernadette Atuahine, who's done a lot of work on community land trusts, particularly in the context of South Africa, but also she's argued for them here in the United States in places like Detroit. She is a terrific scholar at Chicago Kent Law School and a real expert on these questions. So your proposal, Catherine, is really one that is focused on the

idea of property ownership, which I think is such a lovely symmetry from the whole prospect of enslavement and the idea of human property to repairing that breach by allowing the descendants of those who were enslaved to have access to property ownership going forward. But it's a very different model from the other models for reparations that we've seen in the United States. So for example, some have argued that at least in its original incarnation, affirmative action was a kind of reparation for the exclusion of minorities from institutions of higher education, like it was meant to sort of repair the legacy of that breach and allow individuals access to these institutions

that had once prohibited their entry. And we've seen in other places, for example, in Rosewood, Florida. So in 1923, Rosewood was the scene of an incredible, I guess siege is the only word for it, a white mob besieged this African-American town where black people were actually doing pretty well economically and sent its residents scurrying to all parts of Florida. And in 1994, the Florida legislature enacted a law that gave the descendants of the victims of the Rosewood massacre the option to go to college in the state tuition-free. And since 1994, around 300 students have actually received Rosewood scholarships to attend universities in Florida. But the argument goes that the prospect of education as a reparative model is incomplete.

That when you send students to these predominantly white institutions, or in some cases, HBCUs, FAMU in Florida is one of the institutions that's eligible. You go part of the way, but you don't really address the psychological and emotional damage of the history on these individuals simply by offering them the opportunity to be educated. And under your proposal, I would assume the commitment to the land, the bond with the land may actually serve some of those emotional needs that education might not? Well, as you said, Melissa, I think we need both. I think investment in HBCUs is really, really important. Actually, I was talking to one of the students who's at Georgetown now. Georgetown has been atoning for its past of actually selling enslaved people in order to pay its debts and to keep in business during the period in which slavery was legal. And what they've done is said to the descendants of those people who were sold, you can come to Georgetown tuition free. And I met one of the young men who was at Georgetown

last year, and he said, you know, it's great to be here. It's wonderful they're dealing with this. But, you know, they didn't even ask me if I wanted to come to Georgetown. I would have actually rather stayed in Louisiana and gotten a scholarship or had some kind of investment in universities where I live rather than me coming to your white school. So I think, you know, we're experimenting with different ways to atone for this past. Some of them are better than others, but I think investing both in education and in other ways in which communities and individuals can enrich themselves and empower themselves in the longer run makes enormous sense. I think criminal justice reform, the abolition movement,

has to be part of a reparations discussion since the modern criminal justice system is a product of the institution of slavery. It is impossible to disaggregate slavery and white supremacy from the criminal justice and prison industrial system in the United States. So economic injustice certainly is important. Education justice certainly important, but so many other things as part of a, I think, rich conversation about what reparations ought to look like. So moving beyond the idea that reparations is either education or a cash settlement, but actually is a holistic program intended to sort of repair the legacy of the past. Absolutely. And I think different institutions have to think differently about it. So Evanston, Illinois, the town in which I was born at

Evanston Hospital, has been one of the first cities to institute a citywide reparations plan. They had the benefit of marijuana becoming legal and then taxed. So they had a bounty from that tax and they were trying to think what would they do with it. And Robin Ruth Simmons, one of the older people in Evanston, has led this reparations campaign, which to be sure is not enough and has been criticized for not being sufficient to deal with what is very obvious structural and long term race discrimination in the housing market in the Chicago suburbs. But it's a start and it's a model for other cities. Universities are doing different things with their reparations projects. I think corporations need to also think about the ways in which they have historically invested in, if not enslavement, the legacies of slavery. So each institution will have a different way to think about how we all collectively bear some responsibility for repairing what remains an open wound.

One of the, I think, flashpoints around the reparations debate, at least today, is how to distinguish between who should be the persons that receive reparations if reparations are forthcoming. And there's, I think, a quite sizable group of people who argue that reparations should be for those who are actually descended from those who experienced American slavery, as opposed to people like me, who are descended from immigrants, African immigrants, certainly, but not individuals who are necessarily experiencing American slavery, although we may likely have experienced slavery in other parts of the diaspora. So if we all need to think about how we have individually benefited from the legacy of slavery, why do we see this call to sort of surgically separate those who are actually linked to American slavery? Is that the

way to think about it? This sort of ADOS movement, Africans descended from slaves, or should we think broadly about how all people of color or all African American people, whether they are descended from slaves or not, actually bear the imprint of slavery? Well, I would first say that while I have an opinion on this issue, I do think as a white person, it's not my question to answer. I feel like this is an important question for people in the black community to answer. But that said, I do have an opinion about it, which people can take or not, but I don't really feel like I have the authority to issue what I would then defend is the right answer. I do feel like the ADOS movement, the American Descendants of Slavery movement, which insists that only those who can show a genetic relationship to someone who was

enslaved, is both, in principle, too narrow a way to think the problem, and practically too narrow way to think the problem and practically too narrow. Practically because most people who can maybe have a descendants from an enslaved person cannot show that. Most people who, Black people in the United States who had ancestors who were enslaved, don't know their last names, don't know where they lived. We don't have DNA that we can trace back. That is part of the legacy of slavery is that black people have lost. The lost lineage of these people. Exactly. And so to insist on only though narrowing the class of people who are entitled to reparations today based on those who have the privilege of being able to prove that descendants, I think, under captures the class of people, even by the terms of that way of thinking the problem in ways that I think are unfortunate.

But as a matter of principle, part of what motivates me to do this work, and I think part of what makes reparations so compelling, is its relationship to white supremacy and what makes Black people enslavable in the first place. So as a white person myself, my family didn't enslave anyone in this country. My family didn't live in the United States when slavery was legal. I still think that I am an enormous beneficiary of white supremacy and its payoff. And I bear some responsibility for the legacies of slavery, even though I don't personally have a relationship to it in terms of having an ancestor who enslaved folks. to me, all Black people in this country relevant and entitled to some of the components of reparations, not just those with a direct descendants to enslavement. And in that respect, I think this is where we can be nuanced around different pieces

of the reparations plan, playing different roles, perhaps with different communities. That's a great point. If we think about reparations more holistically, we can actually sort of direct things in ways that are more attentive to certain communities that actually have a more direct lineage to slavery and those who don't, but nonetheless bear the imprint of that legacy. Just if I can add one other thing, because this is a law podcast, is that part of- Allegedly, it is a law podcast. Allegedly. So let me just veer in the direction of law for a second. Part of why we've had such trouble repairing structural race discrimination in this country or addressing it through law

is because of questions of causation. Yeah. Right? Our traditional approach to causation and intent in terms of responsibility draw too narrow a circle in terms of understanding where responsibility ought to lie. some ways, it kind of echoes that way in which, well, I'm not responsible as a white person for this horror, this national tragedy, because I too didn't have any genetic relative who was involved in the enslaving people. And that to me undercaptures the systemic, structural, society-wide problem of slavery itself and its aftermath. Switching gears slightly, that's a great pivot for the next point I wanted to talk to you about. The entire legacy of the United States, as you suggest in the book, is in some way shaped by the legacy of slavery. And even institutions that were not explicitly involved in the work of

enslavement nonetheless have ties to slavery. So you mentioned Georgetown earlier and the role that slavery played in sustaining that institution. Harvard Law School has recently reckoned with the way in which its financial foundation was really built on enslavement and the trafficking of slaves throughout the New World. You are currently working right now on trying to trace the legacy and the actual residue of slavery in New York City, where your institution, Columbia Law School, is located. So can you tell us a little bit about that project? Because it seems almost counterintuitive to think about slavery in the North, in a city like New York, at an institution like a law school, which were just being founded as slavery was in its sort of waning days in the 1850s. That's around the time when a lot of law

schools were started, but it's also the end of slavery. Are there still legacies to slavery that we can connect to our sort of founding law schools? Absolutely. So I'm leading a team at Columbia Law School researching the law school's relationship to slavery, having been founded in 1858. But there was a law program at Columbia University well before then. And so James Kent. Yes, Chancellor Kent, who is, you know, one of the most prominent legal theorists in the United States, certainly of the

19th century, owned several people, Black people, while he was at Columbia University. Our highest academic honor that we award JD students is the Kent scholarship. And so an interesting question is whether we ought to change the name of that scholarship and in a way thus erase that history or whether we ought to create some kind of present memory, active memory of Kent's complicated relationship both to law and to freedom through a different way of honoring him. This week, I was at the Schomburg Center, Schomburg Library in Harlem, looking at the papers of Frederick Wells. He was a law student at Columbia in 1923, and he lived in one of the dorms. And when two students, law students who were white from North Carolina, realized that Wells was a student and not a porter, they burned a cross

on the lawn in front of the dorm. And eventually, Wells left, and he graduated from Cornell Law School, came back to New York, and became a very prominent tenants' rights and housing lawyer. Also went to Washington and worked for the federal government doing tenants' rights work. We should be honoring the likes of Frederick Wells as much or more as we honor the likes of James Kent, Chancellor Kent. We also have faculty who were our first faculty in the 1850s who were born on plantations in the Caribbean. Their families owned slaves and their family wealth came from enslaved labor. And then there were students in our first classes at Columbia from the South whose families owned enslaved people and who fought for the Confederacy when the war broke out. So there are those histories that we're beginning to research to understand ways in which both the fact of slavery was part of the founding of the law school in 1858

and had an enduring legacy to today that I still think that law school should have some relationship to as an active memory and also as a justification for redistribution of resources. It's a fascinating project and well done to you for taking it up. And I hope other law schools and other institutions take this up. I've seen my own undergraduate institution, the University of Virginia, really have to grapple with this in the last couple of years. But again, I think it's work that probably needs to happen in a lot of places.

To that point, at the same time that we're seeing this escalating interest in and discussion of reparations, we're also seeing real pushback against the prospect of forthrightly acknowledging the wrongs of the past. I'm thinking specifically of the hostility to critical race theory or indeed any effort to offer a more accurate and inclusive account of the history of the United States and the role that slavery played in it. Do you think these impulses are related or coextensive in some way? And can we have a successful call for reparations without being honest about the past and its impact on the present and the future? Well, I think that the resonance of the Twitter hashtag Black Lives Matter across the country as a meaningful and motivating way to think about racial justice

issues today has been enormously successful. And the right has been grasping for some way to push back the white supremacist right. And I think they finally landed on something with the attack on critical race theory. Of course, none of them know what it is, but that's actually the beauty of it is that they don't have to know what it is. It sounds bad. As you well know, critical race theory is not part of the mandatory curriculum anywhere in any school. And certainly not in K through 12 schools. Certainly not. Certainly not. You know, and if I were to start thinking critically about ideologies that are taught in law schools as a mandatory part of the curriculum, I'd start with the law and economics movement. I mean, that to me

is an ideology that structures how we understand what law is and what it ought to do. I'm going to sip this tea right now. Hot tea, hot tea, academic tea. To goose and gander things. But in any event, I do think it's been a way to motivate a base that has felt alienated from, if not offended by, the Black Lives Matter movement, the movement to defund the police, the movement to talk about reparations. You know, all of these issues have become so, have gotten great traction in the last year and a half. And unfortunately, critical race theory has become the motivating sort of vessel for a backlash. We'll see how long that lasts,

since most people don't actually know what it is, and it actually isn't taught anywhere. But as you and I were talking about earlier, there are these efforts to purge critical scholars working on race from public universities and some private universities across the country. Whether they might call themselves engaging in critical race theory, I think, is an open question. But just being honest about our racial past and wanting to know it and study it, learn it and learn from it strikes me and I'm sure you as something that is a part of what it is to be basically educated in this country. So it's also part of an attack, I think, on public universities that worries me enormously. Well, and again, the whole question of public education has mostly been talked about as a question of disinvestment, but there is also, again, the sort of hyper-vigilance over what

public intellectuals at public universities are saying right now that is really concerning as much as the disinvestment from public education more generally. Absolutely. So, Catherine, I'm going to give you the last word. This is such a fascinating book. It is so richly detailed. You make the sea islands come alive. You really get a sense of what life was like at Davis Bend. What do you want readers to take from this?

Well, I think we have an obligation to know this past, to know that reparations is not a modern or outlandish idea. It was one that was widely accepted in the 1860s by white people who were involved in, centrally involved in the project of emancipating Black people from slavery. And it's one that in knowing that history, I think we can understand how that enduring debt is still owed, not just to black people, but to society in general. The horror of slavery and the horrors of white supremacy continue to structure so much of American society. And we can't move beyond it until we look back and face it more honestly. Well, that's all we have time for today. Again, thank you, Catherine, for joining us and for sharing this fantastic work with us. The book

is Repair, Redeeming the Promise of Abolition, and it is available online at The Usual Suspects. It's also available at bookshop.org, where you can support local bookstores while also shopping online. So please check it out. It is available from Haymarket Press's website as well. And the paperback version, complete with reader's guide, comes out this August. So again, Repair, Redeeming the Promise of Abolition. As always, we are grateful to our producer, Melody Rowell, and to Eddie Cooper, who does our music.

And we are very grateful to you listeners. If you would like to do more than just listen, if you'd like to subscribe and support the podcast, please feel free to do so by going to glow.fm forward slash strict scrutiny, where you can become a glow subscriber. You can also purchase fantastic strict scrutiny merchandise to celebrate the end of the SCOTUS term at our website, www.strictscrutinypodcast.com. And we'll see you next time. Thank you.