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Would reparations for slavery be constitutional?

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13.08.2019

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-1970s to 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........

© Washington Post