Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.
It was reported recently that a California task force will recommend giving $223,200 each to all descendants of slaves in California to remedy “housing discrimination” between 1933 and 1977. The total cost to California taxpayers would be about $559 billion, or more than California’s entire annual budget.
That’s just a start. The task force has identified four other areas that might warrant reparations in the future — mass incarceration, unjust property seizures, devaluation of businesses and health care.
Unfortunately for the task force, its recommendation is probably unconstitutional.
The Supreme Court has said that race-based remedies are allowed only when they target the current effects of the government’s own widespread discrimination in the relatively recent past. In Richmond v. J.A. Croson, the high court ruled that the government cannot provide race-based “remedies that are ageless in their reach into the past.”
In Hammon v. Barry, the D.C. Circuit Court of Appeals struck down an affirmative-action plan for Black people in which the discrimination occurred 18 years earlier. Similarly, in Brunet v. City of Columbus, the 6th Circuit Court of Appeals stated that “conduct that occurred at least 14 years before” an affirmative-action consent decree was “too remote to support a compelling governmental interest to justify the affirmative action plan” before it.
Moreover, race-based remedies can be used to remedy only the government’s discrimination, not “societal discrimination,” such as discrimination by private landlords or housing providers. In rulings such as Coral Construction Co. v. King County (1991), the federal appeals court in California has made clear that the government can’t impose racial preferences, unless it is necessary to remedy recent widespread discrimination.
Nor does past housing discrimination explain present-day racial disparities in wealth or income. For example, Asians experienced far worse housing discrimination than Blacks in California, yet they have much higher incomes and more assets. Consider Japanese Americans. From 1913 to 1952, they were legally prevented from owning land and property in more than a dozen U.S. states. More than 100,000 Japanese Americans were interned during World War II.
Today, Japanese Americans outperform Whites by large margins in income and education achievement.
The task force is heading toward mass incarceration next as grounds for reparations. As it does, it is important to remember that incarceration occurs because someone committed a crime, not because of his or her race. The simple fact that Blacks are arrested and incarcerated at a higher rate than Whites is not a reason for reparations. In United States v. Armstrong (1996), the Supreme Court ruled that a higher Black arrest rate didn’t show racism, since it might just reflect a higher Black crime rate, and statistics show that different groups have different crime rates.
The Black crime rate is much higher, according to the federal Bureau of Justice Statistics. It found that for homicide, “the offending rates for Blacks were more than seven times higher than the rates for Whites” between 1976 and 2005. A 2021 study by the Bureau of Justice Statistics found that although Blacks are arrested for serious nonfatal violent crimes at more than twice the rate of people in general, it is not due to racism. Instead, arrests are correctly “proportional” to the actual crime rate and to the crimes actually reported to the police, which are often committed by Black offenders.
Testimony to the task force claimed that the “persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.” That is quite wrong. As criminology professor Justin Nix notes, “Given its level of serious crime, America has ordinary levels of incarceration but extraordinary levels of under-policing.” The United States incarcerates fewer people per homicide than countries such as Australia, Japan, Switzerland and Austria.
While California did increase penalties for crime in the 1980s and early 1990s, it did so to deter crime — which disproportionately harms Black people — not to harm Black people. Crime in California fell significantly after the state’s voters adopted Proposition 8, which mandated longer sentences for repeat offenders who kill, rape and rob others. A study found those longer sentences deterred many crimes from being committed. Similarly, a 2008 Santa Clara University study found that longer sentences for three-time offenders led to “significantly faster rates of decline in robbery, burglary, larceny and motor vehicle theft.”
Paying the reparations would, obviously, bankrupt California. Consequently, it seems reasonable to assume that the recommendation is an attempt to inject the issue of reparations into the national discussion. While the idea appears unconstitutional under equal protection case law, the task force is aware that case law can be reinterpreted or overturned. President Biden is patiently filling the lower tiers of the federal judiciary with progressive judges who may be willing to overturn or creatively reinterpret past federal court rulings they view as too restrictive with respect to race-based government action.
• Hans Bader is an attorney who specializes in civil rights. He helped successfully defend Proposition 209 — which banned racial preferences in hiring, government contracts and education — in California.
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