When Testimony Fails

Abstract

While cases such as Plessy v. Ferguson (1896) infamously illustrate the failure of the U.S. courts to endorse full citizenship for African Americans, the civil rights victories under the Warren court offer the possibility that the law can be an important means by which African Americans can attain justice. However, U.S. history is filled with accounts of the law failing to be a salve for racial injury. Even cases that produce positive outcomes for African Americans can fail to provide truly reparative resolutions. In everyday legal parlance, reparative justice requires that a perpetrator both accept responsibility for causing injury and make restitution. A number of scholars have made arguments about what the enactment of reparations would look like, but I want to focus here on its most expansive meaning. “In the most literal sense,” Christopher Kutz explains, “a claim of repair is a claim to be made whole, to have a harm healed or corrected.”¹ However, being made “whole” after racial injury—after any trauma—is a challenging and sometimes impossible exercise. Because racially injured subjects cannot return to a point of knowledge before the wound—where they no longer know what it is like to have been wounded—reparative justice is inevitably incomplete. Given the checkered history of the law’s efficacy and the impossibility of the law making a racially injured citizen politically or therapeutically whole, African Americans may sometimes decide, or be forced, to abandon the law as the path to reparations for harms perpetrated on black citizenry.