2. Legal Support For The Greivance
II. LEGAL SUPPORT FOR THE GRIEVANCE (The "What"):
The identified harms are not just moral grievances; they are actionable injustices with robust legal and human rights bases for redress.
A. Unjust Enrichment / Compensation for Forced Labor:
Principle: The core legal doctrine holds that no person or entity should be allowed to profit or enrich themselves inequitably at the expense of another. When one party receives a benefit from another under circumstances that would be unconscionable or unfair to retain, the law imposes an obligation for the enriched party to make restitution or disgorge the ill-gotten gain. The typical elements include a benefit conferred upon the defendant by the plaintiff , an appreciation or knowledge by the defendant of the benefit , and acceptance or retention of the benefit by the defendant under circumstances that make it inequitable or unjust for the defendant to retain the benefit without paying its value. It's a principle rooted in fairness and preventing wrongful gains.
Application to Chattel Slavery (1619-1865): The direct and systematic extraction of unpaid labor from enslaved African Americans constitutes an immense act of unjust enrichment. The vast wealth and economic development of the U.S., from agricultural empires (cotton, tobacco, sugar) to national credit and trade, were fundamentally built upon this stolen labor and capital. The enslavers, their business partners, and the governments that protected slavery were fully aware they were benefiting from coerced labor. The entire legal and social structure of slavery was built on the premise of owning human beings as property and extracting their labor without compensation. The continued retention of this accumulated national wealth and the benefits derived from it, without ever compensating those whose labor created it, is profoundly unjust. The "property" (enslaved people) was not acquired through fair exchange but through brutal force and dehumanization. The gains from this system were unjustly retained and continue to underpin the economic disparities we see today.
Application to Post-1865 Systemic Discrimination: The principle of unjust enrichment extends beyond formal slavery into the post-emancipation era, applying to the various systems designed to maintain Black economic subjugation. Systems like sharecropping and debt peonage effectively continued to provide cheap, exploitable labor for agricultural and industrial sectors, benefiting landowners and businesses at the expense of Black laborers. Policies like redlining, discriminatory FHA and GI Bill administration, and urban renewal efforts actively depressed wealth accumulation in Black communities while simultaneously funneling wealth and opportunities (e.g., access to suburban housing, quality education, business loans) to non-Black communities. This wasn't merely a denial of opportunity; it was often an active transfer of economic advantage. Discriminatory practices also created artificially depressed markets for Black-owned property and businesses, allowing others to acquire assets at below market value or dominate sectors through unfair competition. Governments at all levels and specific private institutions explicitly designed and implemented these discriminatory policies, knowing their disparate impact and economic advantages. Redlining maps, for example, were explicit. The unjust retention of these benefits underpins the current intergenerational wealth gap, the disproportionate access to capital, and the accumulated property values in historically privileged communities.
Reframing the "Diffuse Nation" Challenge: The United States Federal Government, as the sovereign entity that sanctioned, protected, and ultimately built its economic foundation upon this system (as argued by The 1619 Project) , is the direct legal successor to the unjustly enriched party. The "national treasury" represents the tangible repository of this accumulated wealth and taxing authority necessary for its disgorgement. For current generations of non-Black Americans, the "benefit" from which broader society is unjustly enriched is the inherited absence of legal discrimination and the cumulative systemic advantages it conferred. This includes intergenerational wealth transfer , social/political capital , and avoidance of "Black fatigue". The retention of these inherited advantages, built upon the direct economic and social suppression of another group, makes it inequitable for the broader society to not support redress. This establishes a collective societal obligation.
Legal Precedents & Analogies: Courts have historically recognized claims for "quantum meruit" or "unjust enrichment" in cases where services are rendered without compensation, implying a right to fair value for labor. While these are typically individual torts, the principle can be scaled to the collective. International law recognizes compensation for forced labor. The Slave Compensation Act of 1837 in the UK compensated enslavers £20 million for their "loss of property" (enslaved people) , which ironically established the monetary value placed on enslaved labor. Notably, in the U.S., under the District of Columbia Emancipation Act of 1862, the U.S. government actually compensated slave owners for the 'loss' of their enslaved human property. This perverse historical precedent ironically establishes the monetary value placed on enslaved labor by the very government that denied compensation to the enslaved themselves, reinforcing the argument that if the 'loss' to enslavers was compensable, the 'loss' to the enslaved and their descendants is even more so. Furthermore, the federal government's subsequent betrayal of the '40 acres and a mule' promise (General William T. Sherman's Special Field Orders No. 15, 1865), which was systematically revoked by President Andrew Johnson, represents a direct and unfulfilled act of restitution to freed people, underscoring the government's historical failure to provide owed compensation. Contemporary legal scholarship and active litigation efforts (e.g., against universities and corporations) are increasingly framing reparations claims through the lens of unjust enrichment. The Lacks v. Ultragenyx Pharmaceutical Inc. (2024) ruling directly supports the application of unjust enrichment to ongoing profits derived from historical unconsented actions with intergenerational impact, bridging the gap between historical macro-level unjust enrichment of the nation and modern legal enforceability. Cases like Olwell v. Nye & Nissen Co. (1946) demonstrate that unjust enrichment isn't just about the plaintiff's loss, but about the defendant's wrongful gain, making it inequitable to retain benefits from unauthorized use of property, resonating with enslaved labor. Bright v. Boyd (1841) established an equitable principle where a party who innocently confers a benefit on another's property may be entitled to restitution if the benefit is retained, supporting compensation for improvements derived from unjustly acquired assets. Mistaken payments or unpaid services (common hypotheticals) further show courts prevent unfair benefit retention.
B. Property Rights & Theft:
Principle: The fundamental right to own and retain property was violated through systemic theft and destruction of Black-owned land. The unlawful taking or destruction of property constitutes a compensable harm.
Application: The systemic theft of Black-owned land, particularly post-1865 (e.g., through violence, fraudulent legal means, or heirs' property issues), is a direct violation of property rights. The destruction of thriving Black economic districts (like Tulsa's Greenwood) also falls under this.
Legal Context: Domestic tort law provides clear remedies for property theft and destruction.
C. Discriminatory Economic Practices & Violation of Equal Protection and Opportunity:
Principle: Laws and policies that create and maintain economic inequality based on race violate fundamental principles of equal protection and non-discrimination. Redlining, discriminatory administration of the GI Bill, exclusions from New Deal programs, and predatory lending actively denied Black Americans equal access to wealth-building opportunities available to white citizens, directly fueling the wealth gap.
Legal Context: The 14th Amendment's Equal Protection Clause, particularly its spirit recognized through Brown v. Board of Education (1954), which declared "separate is inherently unequal," laid a foundation for recognizing the systemic harm of segregation and its profound economic implications. The Fair Housing Act of 1968 outlawed discrimination in housing, implicitly acknowledging the historic harms of redlining and other discriminatory housing practices. The Civil Rights Act of 1964 (Titles VI & VII) prohibited discrimination in federally funded programs and employment, recognizing the systemic denial of economic opportunities based on race. International human rights frameworks increasingly recognize that economic inequality, when rooted in systemic discrimination, can constitute a violation of human rights, including rights to work, adequate living standards, and non-discrimination.
D. Non-Economic Harms (Black Fatigue / Intergenerational Trauma):
International Human Rights Law (Rehabilitation and Satisfaction): The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN General Assembly Resolution 60/147) provides a robust international legal framework. It outlines five forms of reparations: Restitution (to restore the victim to the original situation), Compensation (for "any financially assessable damage suffered," including "moral damages" like "emotional injury, mental suffering"), Rehabilitation (includes "medical, psychological, and other care and services"), Satisfaction (includes official apologies, truth-seeking, memorials, and "guarantees of non-repetition"), and Guarantees of Non-Repetition. It explicitly states that when moral damage is not economically quantifiable, "the assessment must be made in equity" and mental harm "should always be presumed as a consequence of gross violations of human rights". Black fatigue directly aligns with the "emotional injury, mental suffering," and need for "psychological and other care" under Rehabilitation and Satisfaction. It positions the systemic psychological toll as a compensable and reparable harm under internationally recognized human rights principles.
Emerging Legal Recognition of Intergenerational Trauma: While not yet robust in U.S. domestic tort law, there is a growing body of legal and academic discussion, particularly in the context of Indigenous populations and Holocaust survivors, recognizing the intergenerational transmission of trauma and its lasting effects on descendants. The Canadian Indian Residential Schools Settlement Agreement (2008-2015) is a landmark agreement that included provisions for "Common Experience Payments" and established the Truth and Reconciliation Commission, acknowledging systemic abuse and its intergenerational impacts, including compensation for psychological harm. This provides a tangible legal precedent for collective, intergenerational trauma as compensable. The increasing scientific and medical consensus on intergenerational trauma (as supported by fields like epigenetics and psychology) provides an evidentiary basis for legal recognition of "Black fatigue" as a real, measurable harm requiring redress, even if its quantification differs from direct economic loss.
