* ( 2004, Calvin Massey, Professor of Law, University of California, Hastings College of the Law. Visiting Professor of Law, Boston College Law School, 2003–2004. I appreciate the thoughts and suggestions provided by David Levine and Alfred Brophy, but the errors and omissions are all mine. I also wish to thank the Boston College Third World Law Journal for sponsoring this symposium.
1 Keith N. Hylton, A Framework for Reparations Claims, 24 B.C. Third World L.J. 31, 32–33 (2004) [hereinafter Hylton, Framework].
2 Id.
3 Id. at 33.
4 Id. at 33–34.
5 See U.S. Const. art. I, � 2, cl. 3 (three-fifths clause); art. I, � 8, cl. 15 (militia clause); art. I, � 9, cl. 1 (non-importation clause); art. I, � 9, cl. 2 (suspension of habeas corpus clause); art. IV, � 2, cl. 3 (fugitive clause); art. IV, � 4 (guarantee clause); art. V (prohibiting amendment of non-importation clause prior to 1808).
6 See generally Slavery and the Law (Paul Finkelman ed., 1996).
7 See infra text accompanying notes 9–15.
8 See, e.g., Richard F. America, Paying the Social Debt: What White America Owes Black America 6–8, 17–19 (1993); Randall Robinson, The Debt: What America Owes to Blacks 206–07, 240–42 (2000).
9 It is essentially on this ground that the U.S. Court of Appeals for the Ninth Circuit, in Cato v. United States, concluded that African-American plaintiffs who sought to recover reparations from the United States for slavery lacked standing to assert the claim. See 70 F.3d 1103, 1111 (9th Cir. 1995).
10 See Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality 85–90, 109–11 (1995) (discussing wealth disparities and educational differences); Stephan Thernstrom & Abigail Thernstrom, America in Black and White 263–68 (1997) (discussing criminal victimization); Dorothy A. Brown et al., Social Security Reform: Risks, Returns, and Race, 9 Cornell J. L. & Pub. Pol’y 633, 637 (2000) (discussing shorter life expectancies).
11 See Keith N. Hylton, Slavery and Tort Law 32 (Boston Univ. Sch. of Law, Working Paper No. 03–02, 2003, Soc. Science Research Network Elec. Paper Collection) [hereinafter Hylton, Slavery and Tort], at http://www.bu.edu/law/faculty/papers/HyltonK 012803abstract.html (last visited Oct. 20, 2003).
12 See generally John H. McWhorter, Losing the Race: Self-Sabotage in Black America (2000) (discussing three manifestations of the “ideological sea of troubles plaguing black America”: the Cult of Victimology, Separatism, and Anti-intellectualism).
13 Consider the following: In 1995 the median income of black two-parent families was 88% that of white two-parent families, but the median income of all black families was only 61% of all white families. Id. at 10. The disparity is attributable to the low income of many black single mothers. Id. McWhorter also notes that a majority of blacks (56%) live in the South, a region notorious for wages lower than the rest of the country, and that the rate of increase in median pay was faster among blacks than whites in the 1990s. Id. In mid-twentieth century America more than two-thirds of all black children were born into a two-parent family; by the end of the century more than two-thirds of all black children were born into a single mother family, a statistic leading one pair of researchers to conclude that this family structure is what divides poor blacks from middle-class or well-to-do blacks. Thernstrom & Thernstrom, supra note 10, at 237, 239–41. It is a matter of debate what caused this lamentable phenomenon; one suspect is the incentive afforded by federal welfare measures, instituted in the 1960s, for mothers to raise their children without the benefit of marriage.
14 See 503 U.S. 467, 494 (1992).
15 See, e.g., Robert W. Tracinski, America’s “Field of the Blackbirds”: How the Campaign for Reparations for Slavery Perpetuates Racism, 3 J.L. Soc’y 145, 157 (2002) (describing estimates ranging from $1.4 trillion to $24 trillion).
16 See Hylton, Slavery and Tort, supra note 11, at 43.
17 See Plaintiffs’ Complaint, Alexander v. Governor of Oklahoma (N.D. Okla. filed Feb. 28, 2003) (No. 03–CV–133).
18 See Alfred L. Brophy, Reconstructing the Dreamland: The Tulsa Riot of 1921 (2002).
19 Charles J. Ogletree, Tulsa Reparations: The Survivors’ Story, 24 B.C. Third World L.J. 13, 18 (2004) (stating there are over 120 survivors of the riot still living).
20 F. Scott Fitzgerald, The Great Gatsby 189 (Scribner Books 1992) (1925).
21 But see David Lyons, Reparations and Equal Opportunity, 24 B.C. Third World L.J. 177 (2004) (discussing a series of race-neutral social welfare programs that could take the place of reparations specifically targetd to blacks).
22 See David Horowitz, Uncivil Wars: The Controversy over Reparations for Slavery 12 (2002).
23 See Robinson, supra note 8.
24 See America, supra note 8.
25 Peter H. Schuck, Slavery Reparations: A Misguided Movement, at http://jurist.law.pitt .edu/forum/forumnew78.php (Dec. 9, 2002). For a thorough assessment of the effects of affirmative action, see Peter H. Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1 (2002).
26 My comments on this point are inspired by Jennifer Roback, The Separation of Race and State, 14 Harv. J.L. & Pub. Pol’y 58 (1991).
27 See Dennis S. Karjala, Opposing Copyright Extension, at http://www.law.asu.edu/Home Pages/Karjala/OpposingCopyrightExtension (last visited Oct. 20, 2003). This website is maintained by Arizona State University law professor Dennis Karjala and contains numerous links to articles and congressional testimony contending that copyright extension, particularly via the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105–298, 112 Stat. 2827 (1998) (codified in various sections of 17 U.S.C.), favored copyright owners at the expense of consumers. Id. See generally Jessica Litman, Digital Copyright (2001).
28 See Donald L. Bartlett & James B. Steele, Playing the Political Slots, Time, Dec. 23, 2002, at 53; Donald L. Bartlett & James B. Steele, Wheel of Misfortune, Time, Dec. 16, 2002, at 47, 57.
29 See McWhorter, supra note 12, at 9–10.
30 Id. at 10.
31 Hylton, Framework, supra note 1, at 34 tbl.1.
32 Thernstrom & Thernstrom, supra note 10, at 185 tbl.1.
33 See id.
34 Id. at 237.
35 Id. at 239–40.
36 See generally Lyons, supra note 21.
37 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493–94 (1989).
38 See 417 U.S. 484, 494–97 (1974).
39 See 426 U.S. 229, 245–48 (1976).
40 The constitutional validity of the Civil Liberties Act of 1988, 50 U.S.C. app. �� 1989b–1989b9 (2000), which provided a $20,000 payment to each person of Japanese ancestry who was deprived of liberty or property as a result of the forcible relocation and confinement of American citizens and permanent residents of Japanese ancestry during World War II, was upheld in Jacobs v. Barr, 959 F.2d 313, 314–15, 322 (D.C. Cir. 1992). In Jacobs, a pre-Adarand opinion, the U.S. Court of Appeals for the D.C. Circuit invoked Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), and applied intermediate scrutiny, but opined in dicta that the Act would survive strict scrutiny. Jacobs, 959 F.2d at 318. The court suggested that the Act would survive strict scrutiny because the government’s purpose—to redress an act of racial discrimination that, although declared valid at the time in Korematsu v. United States, 323 U.S. 214 (1944), has since been widely repudiated as unjust, unconstitutional, and based on government misconduct in the courts—was compelling and the cash reparations were a narrowly tailored way to provide some restitution to the immediate and direct victims of the Japanese exclusion order. See Jacobs, 959 F.2d at 321.
For more on the government misconduct, which consisted of deliberate lies to the Supreme Court, see Korematsu v. United States, 584 F. Supp. 1406, 1417–18 (N.D. Cal. 1984); Peter Irons, Justice at War (1983).
41 See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 488–90 (1982); Flast v. Cohen, 392 U.S. 83, 85–86 (1968).
42 See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216–17 (1974); United States v. Richardson, 418 U.S. 166, 173–75 (1974).
43 959 F.2d at 313.
44 Id. at 314.
45 Id. at 315. For this proposition the Court of Appeals cited H.R. Rep. No. 278, 100th Cong., 1st Sess. 9 (1987) and stated:
In 1983, Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui, who had challenged the constitutionality of the internment, reopened their landmark federal cases through writs of error coram nobis. Their wartime convictions for defying the internment policy were vacated, based on evidence that the government had misrepresented and suppressed evidence that racial prejudice, not military necessity, motivated the internment of Japanese Americans. Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984); Hirabayashi v. United States, 627 F. Supp. 1445 (W.D. Wash. 1986), aff’d in part and rev’d in part, 828 F.2d 591 (9th Cir. 1987); Yasui v. United States, 83–151 BE (D. Or. 1984), remanded, 772 F.2d 1496 (9th Cir. 1985). None of the decisions was reversed on appeal. For an admirable review of the history of the internment policy, see Hohri v. United States, . . . 782 F.2d 227, 231–39 (D.C. Cir. 1986) (Wright, J.), vacated, 482 U.S. 64 . . . (1987).
Id.
46 See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989). The Court states:
While there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts in Richmond . . . . [A]n amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.
Id. Left unclear in this enigmatic passage is whether the defect is a poor fit of remedy to objective (“an unyielding racial quota”) or whether it is the overly broad remedial purpose (“an amorphous claim [of] past discrimination”). Justice Scalia is more direct: “The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can [not] be pursued by the illegitimate means of racial discrimination . . . .” Id. at 520 (Scalia, J., concurring).
47 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring in part and concurring in the judgment) (“[G]overnment can never have a ‘compelling interest’ in discriminating on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction.”).
48 See, e.g., Lyons, supra note 21, at 183–185.
49 See generally Brophy, supra note 18.