Does Transitional Justice Belong in the United States?

(Editor’s Note: This article is part of a special Just Security “Racing National Security” symposium edited by editorial board member Matiangai Sirleaf. The goal of the symposium is to render race visible in national security to shift the dominant paradigm toward addressing issues of racial justice.)

In the pre-Trump world, the Obama Administration endorsed economic reparations, truth commissions, and memorial building for countries transitioning out of repressive regimes. Promoting these processes was “a core moral responsibility of the United States,” it said.

When a New York Times columnist asked whether the United States is such a country in transition, an Obama State Department spokesperson replied: “I won’t have anything further for you.”

This uncomfortable silence reflects a broader trend within the field of transitional justice, which addresses how societies can deal with conflictual histories. For decades, U.S.-based discussions of transitional justice have gazed outward internationally, while overlooking the legacies of slavery, segregation, and white supremacy at home.

Certainly, there have been exceptions to this trend. Greensboro, North Carolina and the states of Illinois and Maryland engaged in localized truth and reconciliation processes. Civil rights leader Sherrilyn Ifill’s 2007 book “On the Courthouse Lawn” elaborated transitional justice principles for American struggles with racism. Ta-Nehisi Coates’s 2014 Atlantic article reminded Americans that broader reparations are still pending more than two centuries after freedwoman Belinda Royall successfully petitioned for a pension of 15 pounds and 12 shillings from her former enslaver’s estate. Religion professor Anthony Bradley’s 2018 essay applied the “Chicago Principles of Post-conflict Justice” to individual American states. Yet, despite these efforts and arguments, the United States has proceeded as if transitional justice does not belong “here.”

No more. Following the tragic killings of Breonna Taylor, Tony McDade, George Floyd, Rayshard Brooks, Ahmaud Arbery, and countless others, protestors and advocates have reissued demands for civilian accountability boards to address police violence, reparations for decades and centuries of racist oppression, and truth and reconciliation processes to acknowledge historical and ongoing injustices.

Such demands are fundamentally calling for transitional justice.

My recent and forthcoming work argues that the United States remains a nation in transition, still far from surmounting its racist past. Laws concerning affirmative action, school desegregation, voting rights, and disparate impact are part of America’s racial transition. Yet, a number of factors have prevented widespread application of a transitional justice framework to the United States.

Some factors have to do with the field of transitional justice itself. Since its inception, this field has been more concerned with transitions to democracy – such as in Argentina and Chile as they emerged from dictatorships – than with transformations within “established” democracies. From a traditional viewpoint, transitional justice is inapposite to the American context because the United States is assumed to be an “established” democracy, because it lacks the sort of explicit regime break found in many transitional contexts, or because too much time has passed since its antebellum and Jim Crow histories.

Other factors are specific to the United States, such as a belief in American racial exceptionalism. This notion depicts the United States as the leader in the global struggle for liberty whose own march to racial equality was completed with the Civil Rights Movement, or the election of Barack Obama. As United Nations Special Rapporteur on racism, E. Tendayi Achiume, recently wrote for Just Security, this exceptionalism “implicitly treats existing domestic law as a high watermark for achieving justice and equality, when this law falls short even of global human rights anti-racism standards.” The United States is exempted from political and legal considerations applied to other transitional societies, despite its centuries-long struggle with state-sponsored racial violence.

On a closer look, such distinctions between the United States and the rest of the world are as illusory as they are problematic. If Canada could be moved to address Indian Residential Schools dating back to the 1800s through the establishment of a truth commission, nothing should prevent the United States’ reckoning with its racist legacies. For three sets of reasons, beliefs about America’s democracy and exceptionalism must not place it beyond the reach of transitional justice.

American Democracy

Some claims place the United States outside the purview of transitional justice by assuming its status as an “established” democracy. However, such claims ignore the denial of basic political rights and representation during slavery, up through Jim Crow, and into the present day. Writers from W.E.B. Du Bois to Nikole Hannah-Jones have argued that the United States was not a real democracy until Black people forced it to move toward becoming one.

Political scientists Francisco González and Desmond King distinguish between “restricted” and “full” liberal democracies and characterize the United States as a “restricted” democracy prior to the implementation of the 1964 Civil Rights Act and the 1965 Voting Rights Act. Pointing to the barriers that Black voters faced in Alabama in 1963, Dr. Martin Luther King, Jr. similarly asked in his letter from Birmingham Jail: “Can any law enacted under such circumstances be considered democratically structured?”

In this light, it is possible to characterize periods of major racial change in American history as regime changes. Historian Eric Foner and others have framed the Reconstruction era as America’s “second founding.” Political scientist Andrew Valls describes the Civil Rights era as a “regime transition” that “was woefully incomplete, and therefore unjust.”

As Hannah-Jones writes in her Pulitzer Prize winning 1619 Project: “Without the idealistic, strenuous and patriotic efforts of black Americans, our democracy today would most likely look very different – it might not be a democracy at all.” Today, that struggle for democracy continues. These arguments highlight how American democracy has been – and still is – incomplete, given the nation’s lack of racial justice. Interrogating fundamental assumptions about the state of democracy reveals a nation in transition.

Comparative Experience

There are also deep similarities between American racial injustice and the kinds and degrees of oppression that have been found to necessitate transitional justice in other contexts. As I show elsewhere, the United States is most clearly comparable with one of the paradigmatic case studies of transitional justice: South Africa. Both the United States and South Africa have deep histories of the state enforcing and enabling racial subordination; the pre-Civil Rights United States was arguably no more an “established” democracy than apartheid South Africa. The increasing understanding of the history and legacies of America’s racial apartheid only bolsters such comparisons.

More fundamentally, the transitional justice canon demonstrates that historic injustices and their legacies need to be addressed, even within democracies and even without regime change. A transitional justice lens reveals commonalities between the United States and other societies dealing with oppressive pasts and allows the experiences of one to inform the other.

Transition Process

Ultimately, individual laws and policies must be understood in relation with one another and as elements of a broader transition process. The United States struggles with racism in part because government agencies and institutions such as the Supreme Court believe that brief implementation of discrete measures has resolved centuries of racial subordination, when transitional justice is a generational process requiring holistic approaches.

In 1915, W.E.B. Du Bois argued that a longer period of distributive and welfare policies following the Civil War could have created a more equal United States, but “the country would not listen to such a comprehensive plan.” Today’s Movement for Black Lives similarly demands reparations for past and continuing harms to black people; investment in healthcare, housing, and education for Black people; economic justice for Black people; and a political system in which Black people can exercise their political power, among other changes.

These demands are linked as much to the past and future as to the present. From a transitional justice viewpoint, protesters today are not demanding discrete remedies for discrete harms. Instead, they are calling for a comprehensive and coordinated transition process that addresses the United States’ traumatic history with racism, its enduring legacy, and future threat.

The passage of significant time since slavery and Jim Crow has not rendered this transition process complete. Countries spanning from Canada to the Philippines have taken centuries to grapple with the legacies of their past. Until the United States takes adequate steps to address its racist legacies, its transition will be delayed as harms compound and past progress is erased.

An enduring feature of Black oppression in the United States has been a backsliding away from democracy. Transition can thus be conceptualized not only as the attainment of a truly democratic regime, but also as the sustainment of democratic rule. For example, as I argue in a forthcoming article, the “preclearance” requirement of the Voting Rights Act, which prevents public officials from using discriminatory voting practices on a continuous basis, supports transition by sustaining democratic rule.

Transition is not only a move toward democracy and the rule of law, but also charts a path toward peace and justice. In his letter from Birmingham Jail, Dr. King expressly called for “transition from an obnoxious negative peace … to a substantive and positive peace, in which all men will respect the dignity and worth of human personality.” Recurring protests against police violence and structural racism indict the government’s failures to secure such a substantive and positive peace. Civil rights leader Bayard Rustin’s warning to New York City mayor Robert Wagner rings as true today as it did in 1965: “Either you creatively meet the causes of discontent in spring, or negatively face another long, hot summer.” This warning reminds us of the need to target our transitional efforts not only at American democracy, but at racial justice.

Conclusion: From “There” to “Here”

In 1963, James Baldwin wrote about “the collection of myths to which white Americans cling: that their ancestors were all freedom-loving heroes, that they were born in the greatest country the world has ever seen.” Today, those same beliefs in American creed and exceptionalism impede recognition of the United States as a nation in transition. However, the enduring – and increasingly international – criticisms of the United States’ failures on racism should lead us to consider this country alongside others with conflictual histories.

A key promise that transitional justice holds for the United States is a shifting of the burden of proof. Transitional justice demonstrates that the centuries-long oppression of Black Americans is precisely the kind of massive human rights violation that necessitates systematic and ongoing redress. Moreover, it places the United States alongside other countries that have taken, or are in the process of taking, steps to address historical legacies of oppression. Once we acknowledge that transitional justice applies here, the question becomes how mechanisms of justice and accountability should be implemented rather than whether such mechanisms are needed.

Of course, the United States should not uncritically adopt transitional justice approaches from elsewhere. Transitional justice has limitations and needs to be considered with careful attention to specific contexts and local demands. At the same time, Americans must recognize that their nation is still “developing” in ways that place it alongside or behind others it considers “less developed.” If transitional justice belongs “there,” it belongs “here” too.

(Editor’s Note: Readers interested in the potential of pursuing transitional justice in the United States as a means of addressing systemic racial oppression may also be interesting in this recent Just Security article by Zinaida Miller and this article by Colleen Murphy).

Image: Supporters raise their fists while standing at the State Capitol during a National Mother’s March in St. Paul, Minnesota July 12, 2020. (Photo by AMANDA SABGA/AFP via Getty Images)

 

About the Author(s)

Yuvraj Joshi

Yuvraj Joshi is a doctoral candidate at the Yale Law School and a fellow of the Yale Institution for Social and Policy Studies. You can read his work at yuvrajjoshi.com. Follow him on Twitter (@yuvrajjoshi).