In the last few weeks, the issue of whether the descendants of black slaves should be given “reparations” has become a hot topic in the Democratic presidential primary race. It all started when Kamala Harris came out in favor of reparations, when asked about the issue during a radio interview. Soon afterward, Elizabeth Warren and Julián Castro chimed in, declaring that they also supported reparations.

During CNN’s recent town hall with Senator Bernie Sanders, one of the questioners asked him whether he would support reparations for slavery, too. Sanders responded that he couldn’t answer the question without first getting clarification about what the word “reparations” is supposed to mean, since advocates have used the term in many different ways:

Many activists on the Left were very unhappy with Sanders’ response here. They believe that Sanders must come out unequivocally in favor of reparations for slavery, and that it is cowardice for him to do otherwise:

But Sanders was right to demand clarification. Candidates like Harris and Warren have been muddying the waters on the issue of reparations, using the word disingenuously to refer to policies that are not race-specific. In order to adequately address this issue, we need to get clear on what kind of policy we’re actually talking about.

Historically, the term “reparations” has been understood to refer to race-based, cash reparations. That means that a cash payment would be given specifically and exclusively to the descendants of black slaves, in an effort to “bring justice” to African-Americans who are still dealing with the socioeconomic legacy of slavery and Jim Crow segregation. Sometimes other types of reparations have been proposed, such as grants to “black” nonprofit organizations, but the common thread is that they are all race-based, and not universal programs. Reparations are often promoted as the best way to address the ongoing, substantial racial wealth disparities that exist in the US:

“Universal programs are not specific to the injustices that have been inflicted on African-Americans… I want to be sure that whatever is proposed and potentially enacted as a reparations program really is a substantive and dramatic intervention in the patterns of racial wealth inequality in the United States.”
— William Darity, pro-reparations economist

We know that Senator Sanders is outright opposed to this kind of race-based reparations. In a 2016 interview, he pointed out that such a policy would be “very divisive.” On this point, Sanders is exactly right. Reparations for slavery are an incredibly divisive policy proposal, and they’re something that the Left should firmly oppose.

The case against reparations

If we want to elect a Congress and a president that are committed to enacting a left-wing, democratic socialist program, we need to win tens of millions of white voters over to our side. Including reparations in our platform would make it almost impossible to do that. Polling has shown that just 6% of white Americans support cash reparations for slavery, while 79% actively oppose them. And we should expect that white opposition would only deepen as whites are exposed to the right-wing propaganda that would accompany serious push for reparations.

If somehow reparations for slavery were ever enacted, they would create a tremendous amount of resentment by whites, Latinos, and Asian-Americans alike. Non-blacks would view reparations as a redistribution of wealth away from themselves and their families, toward black Americans who did nothing to deserve them. Racial discrimination and hate crimes against African-Americans would substantially increase, and the whole political spectrum would lurch far to the right. The backlash would cause whatever Left government that enacted them to be voted out of office, making it impossible for us to carry out the rest of our program.

If that’s not enough, the logistical problems with such a reparations program would be immense. Because of the widespread intermarriage between African-Americans and other ethnic groups over the decades, the government would have to be in the grotesque business of determining who is “black enough” to deserve reparations payments, dredging up genealogical records to find out who is a descendant of slaves and who is not. This would only reinforce, rather than undermine, right-wing pseudoscientific racial ideologies that assert the existence of a “black race” with an essential character.

Furthermore, reparations would not do much of anything to end systemic racial disparities in wealth and income in this country, because they would leave the structure of the economy intact. Giving black families a one-time payment of a few thousand dollars might help them make their rent payments and shore up their savings for a year or two, but there would still be widespread discrimination in the job market and long-term outcomes would likely be unchanged. As Senator Sanders aptly put it, there are much more effective ways to address racism than simply “writing out a check”:

In a post-reparations scenario however, the political will for further efforts to address systemic racism would largely evaporate. The Right would be able to argue, “Hey, we already did reparations for slavery, now racism must be over.” And millions of Americans would buy into those arguments. In the long run, reparations would only harm the standing of African-Americans in this country, rather than helping them.

What about Latinos?

While the reparations debate has so far only focused on the issue of poverty among black Americans, Latinos are actually not much better off than blacks in this country. Reparations would do nothing to benefit the Latino population, so even if reparations succeeded in raising black families to the same level as white families, Latinos would be left behind as a new underclass.

The sheer fact that Latinos are roughly as disadvantaged as African-Americans calls into question the assumption, essential to the idea of reparations, that blacks are worse off because they are the descendants of slaves per se. Rather, it’s likely that both Latinos and African-Americans are disadvantaged due to similar processes of racial discrimination and the inter-generational poverty. The interests of Latinos and African-Americans are closely linked, and both of these populations would benefit from similar policies. It is totally counterproductive and wrong-headed to separate these issues, and thereby pit people of color against one another, by advocating for a reparations policy that exclusively targets one disadvantaged minority without addressing the plight of others. As Bernie likes to say, we need to bring people together, rather than dividing them up.

Reparations are probably unconstitutional

All of this is assuming, however, that a reparations act would not be struck down by the Supreme Court before it could take effect. This is not a good assumption. The Fourteenth Amendment, which stipulates that US citizens must be given “equal protection” under the law, has been consistently interpreted by the courts to severely restrict the extent to which the government can allocate any kind of benefit on the basis of race. The Court has found that any use of racial classifications must be subjected to “strict scrutiny,” which essentially means that there must be no other, narrower, or non-race-based method for achieving the same “compelling government interest.”

Strict scrutiny is very demanding. For example, in the landmark case Regents of the University of California v. Bakke, the Supreme Court ruled that it was unconstitutional for a public university to set aside a specific number of seats in a medical school program for students of “disadvantaged minorities” in order to help them overcome the effects of discrimination:

“We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations… Hence, the purpose of helping certain groups… perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like [Bakke, a white medical school applicant], who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”
— Regents of the Univ. of Cal. v. Bakke, 438 U.S. 310 (1978)

Essentially, the Court is saying that it is impermissible for the government to relatively disadvantage white Americans, who have not committed any crimes, in order to “make up for” past or ongoing discrimination against minorities. This ruling is fundamentally at odds with the idea of reparations, and it is very unlikely that the Court would overturn decades of precedent by upholding such a program.

Advocates might try to defend the constitutionality of reparations by formulating the act so that it does not refer to “race” at all, but only to whether an individual is a descendant of slaves. But this is very unlikely to pass Court muster. The category “African-American” is often defined in terms of whether a person is a descendant of American slaves. Recent immigrants from Africa, or migrants from Haiti, are generally not considered to be “African-American.” Additionally, the Court has ruled that strict scrutiny must be applied to many non-racial classifications, such as national origin, so the constitutional question would not hinge on whether the reparations were strictly speaking “racial” or not.

Some reparations advocates have pointed to the example of the Civil Liberties Act of 1988, which provided cash reparations to victims of Japanese internment during World War II. They argue that these reparations prove the viability and constitutionality of reparations for slavery. But the Civil Liberties Act gave reparations only to those who were personally interned during World War II, not their children or grandchildren. Reparations for slavery, by contrast, would involve giving reparations to the distant descendants of those who were directly wronged. That is the critical legal and political difference between these two cases. It is a core assumption of American jurisprudence that children are not punished for wrongs that were committed by their parents, nor are they awarded compensation for wrongs committed against their parents.

Given that reparations are almost certainly unconstitutional, it’s simply a waste of time and resources to continue advocating for them, especially when there are many alternative policies that are compatible with the Constitution which would be much more effective at ending systemic racism than reparations ever could be.

Alternatives to reparations

Black workers in this country have the same basic needs as workers of any other race. Universal, class-based policies like a $15 minimum wage, the Green New Deal, Medicare for All, free college tuition, and free public childcare would all disproportionately benefit African-Americans and Latinos, thereby reducing the racial income and wealth gap in this country. These are things that Senator Sanders has forcefully advocated for throughout his career. Kamala Harris and Elizabeth Warren, however, have been much less enthusiastic about these kinds of universal, social democratic reforms.

Massively expanding the stock of high-quality, affordable public housing in this country would also disproportionately benefit racial minorities. And affirmative action policies could be used, to the extent permissible under the Constitution, to ensure that public housing projects are occupied by a diverse mix of races and ethnicities. This would reduce housing segregation and help break down racist attitudes over time. Singapore’s public housing program is a great example of how this can be done.

Finally, anti-discrimination laws in employment must be much more vigorously enforced than they currently are. Studies have shown that job applicants with “black names” are around 36% less likely to get a callback than applicants with “white names,” even when their résumés are otherwise identical. There are similar findings for the results of in-person job interviews. In order to address this issue, the Equal Employment Opportunity Commission (EEOC) must be greatly expanded, allowing it to actively investigate and press charges against employers it finds to be engaging in discriminatory practices, without first waiting to get a complaint.

If all of these measures were enacted, we would be a long way toward achieving genuine racial equality in the United States. Furthermore, these policies are much more politically viable than reparations, since they do not involve an overt redistribution of wealth from non-blacks to black Americans. It’s about time that the Left stop advocating this wrong-headed, counterproductive idea of reparations and instead fight for things that really could help end systemic racism in this country.