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Wednesday, February 27, 2019

Reparations Would Cost Trillions and Are Unconstitutional

Most forms of reparations would violate the Constitution as currently interpreted by the Supreme Court.

Image Credit: Wikimedia Commons | Public Domain

Leading Democrats are now endorsing reparations for black Americans. That could cost taxpayers trillions of dollars and harm the economy.

Most forms of reparations would violate the Constitution as currently interpreted by the Supreme Court. It interprets the Constitution as usually forbidding racial handouts, even for historically disadvantaged groups. But Supreme Court rulings against racial entitlements are mostly 5-to-4 decisions with liberal justices in dissent. So the next Democratic administration could override those rulings just by appointing left-leaning justices to replace conservative justices who die or retire.

The Latest Political Trend

As The New York Times reported, two leading candidates for the Democratic presidential nomination support reparations:

Last week, Senator Kamala Harris of California agreed with a radio host’s recent suggestion that government reparations for black Americans were necessary to address the legacies of slavery and discrimination. Ms. Harris later affirmed that support in a statement to The Times.

Senator Elizabeth Warren of Massachusetts “also said she supported reparations for black Americans impacted by slavery—a policy that experts say could cost several trillion dollars.”

Reparations can cost a lot. The African nation of Zimbabwe pursued a policy of reparations. It wrecked its economy by doing so, resulting in hyperinflation and leaving even its black population worse off.

The federal government is allowed to compensate the direct, immediate victims of its own racial discrimination, even if they all are of a particular race. For example, the federal government acted properly in compensating the Japanese-Americans it incarcerated in concentration camps during World War II. Japanese-Americans lost most of their possessions in that process; many were forced to dispose of their businesses at fire-sale prices before relocating to the camps.

The Supreme Court’s Stance

But according to the current Supreme Court, the federal government is not supposed to give an entire racial group special treatment, or make payments to it, just because different members of that group were mistreated in the past. That is considered an unconstitutional racial preference.

Those who support reparations commonly do so based on the fact that African-Americans were once enslaved, but slavery ended over 150 years ago when the federal government abolished it through the Thirteenth Amendment. No ex-slaves are even alive today to be compensated, and it was state governments in the South, not the federal government, that were primarily responsible for the existence of slavery.

A racial entitlement is only permissible to remedy the government’s own discrimination, not societal discrimination.

The Supreme Court has said that racial set-asides and other entitlements are only permissible to remedy the present effects of the government’s own widespread discrimination in the relatively recent past. That means discrimination by the government that provides the special treatment—not by a different government. A racial entitlement is only permissible to remedy the government’s own discrimination, not societal discrimination. It cannot provide race-based “remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.” (See Richmond v. J.A. Croson Co., 488 U.S. 469, 497 (1995)). Reparations for slavery would be just such an improper “remedy.” On the other hand, the government need only show a “prima facie” case of such discrimination, not smoking-gun evidence of it, to adopt race-based affirmative action.

The federal government is thus not allowed to provide special treatment to blacks in one state just because another state once practiced slavery or segregation. Even when federal officials in one state were in some sense complicit in discrimination against black people, that does not mean that the government can give blacks special treatment in an entirely different state. (See Western States Paving Co. v. Washington State Department of Transportation, 407 F. 3d 983 (9th Cir. 2005)).

Even when the government is remedying the present effects of its own past discrimination, discrimination that happened more than twenty years ago is usually too far in the past to justify giving minorities special treatment today, according to the courts. (See, e.g., Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) (court rules that gender discrimination that occurred 17 years earlier does not support affirmative action); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987) (court rules that racial discrimination that occurred 14 years earlier does not support affirmative action)).

Racial imbalance is not the same thing as discrimination.

Thus, slavery, which ended over 150 years ago, is not a basis for giving black people special treatment today. Nor is segregation. The Supreme Court declared segregation unconstitutional in 1954, over 60 years ago. (See Brown v. Board of Education (1954)).

Segregation is further in the past than other instances of discrimination that the courts have said is too far in the past to support special treatment. (See the court rulings in Hammon v. Barry and Brunet v. City of Columbus).

And many northern states did not have segregated schools even in 1954 when the Supreme Court declared such segregation unconstitutional.

The fact that blacks are “underrepresented” in various occupations is not proof of discrimination because racial imbalance is not the same thing as discrimination. (See Police Association of New Orleans v. City of New Orleans, 100 F.3d 1159, 1169 (5th Cir. 1996) (city could not promote blacks based on race “to give a better reflection of the racial composition of the city,” or “remedy racial imbalances in the police department”)).

Most courts say that the government can use race-based affirmative action or other special treatment only to remedy intentional discrimination, not racially “disparate impact.”

Most courts say that the government can use race-based affirmative action or other special treatment only to remedy intentional discrimination, not racially “disparate impact.” (See, e.g., Builders Association v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001); People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997); Michigan Road Builders v. Milliken, 834 F.2d 583, 593 (6th Cir. 1987), aff’d, 489 U.S. 1061 (1989)).

Also, widespread discrimination, not just a few individual instances of discrimination, has to be shown to justify using race, according to judges. (See, e.g., Middleton v. City of Flint, 92 F.3d 396, 405 (6th Cir. 1996)).

Note, however, that all of these court decisions limiting special treatment for a particular race are based on something called “strict scrutiny.” But liberal Supreme Court justices don’t think that “strict scrutiny” applies to federal racial preferences or special treatment in favor of black people. They dissented against the Supreme Court’s 5-to-4 ruling that “strict scrutiny” applies to federal programs that provide special treatment based on race. (See Adarand Constructors v. Pena, 515 U.S. 200 (1995)).

So if a liberal politician gets elected president in 2020 and appoints more liberal justices to the Supreme Court, the Supreme Court might not block race-based reparations, no matter how costly they end up being for taxpayers. Instead, it might get rid of the requirement that special treatment based on race has to be justified under a “strict scrutiny” test. As a result, even very costly and ill-advised forms of racial favoritism could become constitutional.

This article was reprinted from Liberty Unyielding.

  • Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.