Reparations to African Americans for slavery, and the systemic oppression that followed, is now the stuff of congressional hearings and Democratic presidential debates. Twenty-nine percent of Americans support reparations, according to Gallup, up from 14 percent in 2002.
Increasingly, advocates ask not “if” but “how.” Vox reports the main questions are “what a reparations program would look like, who would benefit, who would pay, and how it would be funded.”
They left one out: Would reparations be constitutional?
Maybe not. Any financial benefits awarded to African Americans in compensation for historical discrimination would collide with well-established Supreme Court precedents.
That doctrine emerged out of two decades of affirmative-action cases, from the mid-1970sto the mid-1990s, during which a center-right court wrestled with how much “reverse discrimination” against whites to allow for the sake of correcting black America’s historical disadvantages.
The court’s answer: not much. Under the 14th Amendment, a race-conscious policy, state or federal, could be enacted only if it passed “strict scrutiny” - that is, if it was “narrowly tailored” to meet a “compelling” government interest, through the “least restrictive” means available.
“Diversity” in higher education was a compelling interest, the court ruled, and could be addressed through admissions programs that took race into account but provided all applicants individualized consideration.
In most contexts, though, the court required government to show that it was redressing harm clearly caused by a discriminatory policy, and that government had exhausted other remedies before trying race-conscious ones.
Under this standard, government contracting set-asides intended to support historically disadvantaged African American (or other minority) businesses, in preference to some white-owned ones, were unconstitutional, the court held, because, even in the former Confederate capital, Richmond, Virginia, the location of a landmark 1989 case, it was too hard to prove that any given minority business suffered discrimination at the hands of the contracting agency.
Justice Thurgood Marshall protested. “A profound difference separates governmental actions that themselves are racist, and governmental actions that seek to remedy the effects of prior racism or to prevent neutral governmental activity from perpetuating the effects of such racism,” he wrote.
But Justice Sandra Day O’Connor had the last word, noting in 1995 that “any individual suffers an injury when he or she is disadvantaged by the government because of his or her race, whatever that race may be.”
Union Army Gen. William T. Sherman’s January 1865 Special Field Order 15, calling for redistribution of white-owned lands to the freed slaves, might have survived “strict scrutiny,” because it compensated people personally victimized by slavery. (Alas, President Andrew Johnson reversed it by fiat.)
Also clearly constitutional: reparations paid to Japanese Americans for their internment during World War II. Like Sherman’s order, this 1988 federal measure compensated the actual victims of a discrete policy.
In his seminal 2014 Atlantic article, “The Case for Reparations,” Ta-Nehisi Coates implied that the situation of African Americans today is essentially similar to that of the newly emancipated in 1865, or the World War II internees, in that they still suffer, not just from slavery, but from much more recent policies such as mid-20th century federally backed housing discrimination.
Yet today’s conservative-majority court would almost certainly note that subsequent legal reforms such as the 1968 Fair Housing Act or the 1977 Community Reinvestment Act mitigate societal or governmental accountability, and weaken the link between past policy and current hardship.
Even a not-so-conservative jurist might worry that reparations compensate people who do not deserve or need it, while excluding others who do. In 1989, Justice John Paul Stevens looked askance at the Richmond contracting set-aside because it “encompasses persons who have never been in business in Richmond, minority contractors who may have been guilty of discriminating against members of other minority groups.”
As for finding a plaintiff to claim harm from reparations, courts have regularly granted whites and - in a case against Harvard’s admissions program - Asians the right to sue for “reverse discrimination.” They would likely allow a member of a historically oppressed group to sue for being omitted from blacks-only reparations. A German American sued against compensation for Japanese Americans, on the grounds that he, too, had been detained in World War II. (The U.S. court of appeals in Washington ultimately denied his claim on the merits.)
Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, suggests that reparations could be constitutional if framed as an award to descendants of slaves - not African Americans. (Problem: What about descendants of pre-Civil War free people of color, or immigrants from Africa and the West Indies?) Alternatively, reparations could take the form of a wealth transfer to all low-income Americans, which would disproportionately benefit black people.
Any race-neutral plan, however, would defeat a principle symbolic goal of reparations: national atonement for a uniquely racial historical sin.
“America was built on the preferential treatment of white people - 395 years of it,” Coates wrote in 2014. “Vaguely endorsing a cuddly, feel-good diversity does very little to redress this.” Nevertheless, that might be all that constitutional law permits.
Charles Lane is a columnist with The Washington Post.