In this guest post by Ramsin Canon, legal history is used as a framework with which to determine how the idea of reparations can be reconciled with Anglo-American legal traditions. Canon, a legal expert, writer, and blogger based in Chicago (which was were the bulk of Coates’ on-the-ground reporting about reparations and redlining was done) analyzes with great detail how the Thirteenth Amendment, which brought an end to slavery in the United States, could be used to begin a national, public debate on reparations.
Ta-Nehisi Coates in “The Case for Reparations” attempts, (in precis form), to demonstrate how the institution of slavery and the structural racism that burdens black people today form part of a continuum. The implication is, of course, that there is an on-going injury to that community that can be traced back to slavery. The question, from a legalistic standpoint, is this: any national program of reparations would require a legal framework rooted in the Constitution. Thus the future of a reparations movement will likely hinge on questions of “practicality”
If our notion of “practicality” is to mean anything, it must encompass the reality of constitutional restraints. Assuming that the addressee of reparations demands is the federal government, the fact cannot be avoided that the federal government possesses limited powers. When it comes to race-conscious policies, those powers are carefully scrutinized by courts.
I want to consider what powers the federal government could feasibly claim to put into practice race-conscious programs meant to address the “lingering effects” of slavery.
It might be helpful to begin with an illustrative example, drawn from the docket of the late Warren Court: the case of Jones v. Alfred H. Mayer Co. (1968). In Mayer, a black family brought suit against Alfred H. Mayer Co. under the 1866 Civil Rights Act, claiming that Mayer had refused to sell them a home in suburban St. Louis solely on account of their race. Thus Mayer concerned a private property owner’s discrimination against a black man who wanted to purchase a home.
The most compelling question provoked by Mayer is this: why, after back-benching it for nearly a century, did the Supreme Court call the 13th Amendment off the bench to justify the original Civil Rights Act of 1866 (42 USC § 1982)?
Section 1982 of the original Civil Rights Act states that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”
Opponents of “Radical Reconstruction” had opposed § 1982 on the grounds that it exceeded Congress’s constitutional authority, affecting as it did private conduct as well as state action. They plead a narrow reading of the 13th Amendment that abolished the formal institution of slavery–both by private action and state sanction–and no more.
With the Fair Housing Act of 1968 on the horizon (and potential constitutional challenges to it sure to follow), the Supreme Court held in Mayer that the 13th Amendment’s second clause, which gave Congress power to enforce the abolition of slavery through appropriate legislation, gave Congress the power to regulate even private behavior when necessary to eradicate the “badges and incidents” of slavery.
And in deciding which social and institutional relations to regulate, “[s]urely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation.” [Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-41 (1968)].
The Court’s forceful opinion in Mayer acknowledged an uncomfortable but plain fact: discrimination in property transfers, and in housing in particular, perpetuated the legacy—the “badges and incidents”—of chattel slavery in the United States. That whatever the letter of the law, in practical fact the social relations in American society, circa the late 1960s, served to reproduce the depredations of slavery.
In “The Case for Reparations, Coates compares this residual damage of slavery to a debilitating credit card debt. Even a progressive policy of “no further charges” does nothing to service the amount still outstanding. The Court in Mayer came to basically the same conclusion; that where Congress identifies such a debt, its powers pursuant to Amendment 13, clause 2, are expansive, reaching private as well as state conduct.
The Mayer decision cuts to the heart of the thesis that Coates pursues in “The Case for Reparations”: namely, that despite the formal abolition of slavery, the formal abolition of Black Codes and segregation, and the formal government policies outlawing discrimination, black people in the United States continue to carry the “badges and incidents” of slavery.
Fault & Injury
Among the most prevalent of criticisms of reparations is the argument that because reparations in the form of payment (whether in kind or cash) would require redistribution from people “innocent” of slavery, they are inherently unjust. In other words, any reparations program would impose liability on people who’ve committed no wrong, and reward people who have suffered no injury at their hands.
This is a sentiment rooted deeply in Anglo-American law: the notion that there must be an injury, and the person charged with liability must have caused the injury.
A well-known case demonstrates this idea. Every first year law student studies Palsgraf v. Long Island Rail Road Company. In Palsgraf, a Rube Goldbergian series of events on a train platform led to a woman being injured: a man carrying fireworks was shoved onto the train by a conductor; he dropped his fireworks, and they went off; the concussion of the explosion caused scales at the far end of the platform to come loose and fall on poor Ms. Palsgraf, who subsequently sued the conductor and his employer.
The Court of Appeal of New York ruled against Palsgraf because the conductor, while he may have injured the guy he tried to shoehorn onto a train, could not be said to be the cause of her injury. There is no way he could have foreseen the events that unfolded, and in particular, he could not have perceived Ms. Palsgraf in particular as being in the “zone of danger,” of his actions. [Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928).]
In other words, you can’t sue Gottlieb Daimler for inventing the internal combustion engine when you get into a car accident. Liability without causation is repugnant to Anglo-American law. If your father is a horse thief, the aggrieved stud groom can’t repossess your mare. The federal and state reporters are festooned with cases absolving defendants of liability for an injury that cannot fairly be traced to them. The ability of mesothelioma sufferers to recover from asbestos companies was for years hampered by the simple fact that it was essentially impossible to identify the particular asbestos manufacturer who installed the asbestos that caused the particular illness. In California, a particularly bummer of a case, Bockrath v. Aldrich Chemicals, barred recovery for the widow of a factory worker who died of myeloma due to exposure to scores of noxious chemicals because the initial complaint failed to specifically allege exposure to each chemical. Bockrath v. Aldrich Chemical (1999) 21 Cal. 4th 71, 78-80.
American justice, in other words, is rooted in the idea that redress is unavailable without causation.
Reparations, unlike forward-facing social programs of general applicability, are about redress. Yet as Coates argues, prospective social programs of general applicability can never catch black communities up on their own. Reparations are needed precisely because redress is necessary.
The Court’s opinion in Mayer suggests something that gets at this intractable problem. Slavery was unique. It is unlike other wrongs in the depth and breadth of its impact. Chattel slavery by its very nature reduced a particular class of people to sub-humanity, invisible to justice. Merely undoing that institution may cancel the credit card, but it doesn’t service the debt—the imposition of servitude of one class by another couldn’t be so easily undone. Starting from a position of sub-humanity, it would take collective and coercive action to eliminate the peonage relationship.
The 13th Amendment and the Badges and Incidents of Slavery
In Mayer, the Court was confronted with a lawsuit based on a law that had lain more or less dormant since Civil Rights Cases were decided in 1883.Civil Rights Cases was a Supreme Court case, actually five consolidated cases, that dealt with what § 1982 of the Civil Rights Act. 109 U.S. 3 (1883). The Court held in Civil Rights Cases that the 14th Amendment did not reach private behavior—only the state could not discriminate—and that the 13th Amendment reached private behavior only insofar as it prohibited chattel slavery. That is, it did not prohibit other discriminatory behaviors. Civil Rights Cases was the Supreme Court’s contribution to the national program of ending Radical Reconstruction.
The Court seemed to hold that a law that forbade inns from accommodating black people, or private decisions to exclude black homeowners from a neighborhood, may have perpetuated slavery only insofar as they were intended to prevent fugitive slaves from escaping. The Court held that since there was no slavery anymore, such a law did not implicate the 13th Amendment. The badges and incidents of slavery were narrowly defined:
When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. 109 U.S. 3, 25 (1883).
By the mid-20th Century, the tide had started to turn. In Hurd v. Hodge,334 U.S. 24 (1948) the Court held that the Civil Rights Act prohibited a court (being an arm of the state) from enforcing a restrictive covenant that prohibited sale of properties to black home buyers. The lower court had enforced the covenant on the grounds that restrictive covenants covering a relatively small number of homes did not injure black home buyers because they could still buy elsewhere. The Supreme Court reversed because those home buyers were being denied “the same right ‘as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property.'” 334 U.S. at 34. Thus the court, by enforcing the covenant, was implicating the state in an act of discrimination determined by Congress in the Civil Rights Act to be a badge of slavery.
Mayer went even further, stating that Congress had the right to pass the Civil Rights Act prohibiting discrimination in private housing contracts because Congress had rationally determined that discrimination in private contracting was among the badges and incidents of slavery.
The Court cited the statements of the Civil Rights Act’s authors in Congress:
[T]he trumpet of freedom that we have been blowing throughout the land has given an uncertain sound, and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that under this provision [Clause 2 of the Thirteenth Amendment] . . . we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing (Jones v. Alfred H. Mayer, 392 U.S. 409, 440 (1968) (citing Cong. Globe, 39th Cong., 1st Sess., 322)).
Put another way, the debt created by the tenure of slavery was not ended by slavery’s abolition. If Congress could not attack social discrimination against “the black man”—not, pointedly, only former slaves—the institution of slavery would simply recapitulate in other forms of social discrimination. So long as Congress behaved rationally in identifying badges and incidents, and rationally calibrated its means to attack those badges and incidents, the Thirteenth Amendment’s second clause would justify those actions.
A Brandeis Brief for Reparations?
In the early twentieth century, the state of Oregon passed a law limiting women’s working hours. (See Muller v. Oregon,208 U.S. 412 ). The law was challenged as unconstitutional pursuant to the Supreme Court’s prior holding in Lochner v. New York.
The National Consumers’ League, a Progressive-era organization, persuaded the state’s attorneys to allow Louis Brandeis to submit a brief on behalf of the law. Light on legal citations but heavy on sociological and economic data, Brandeis’s brief sought to persuade the Court by exposing the poverty of formalist legal arguments: the number didn’t lie, women workers in Oregon needed legislation to protect their health and welfare from unscrupulous employers. The efficacy of Brandeis’s brief has been disputed in scholarship, but the story goes, at least, that Brandeis’s strategy of putting cold, hard facts in front of the Court overcame the abstract presumptions of “freedom of contract,” reified by Lochner.
Thus the idea of a “Brandeis Brief”—a brief that eschews legal argument in favor of sociological, economic, or other data to lay bare the inefficacy or inherent weakness of formal law—entered the legal imagination. The briefs filed in Brown v. Board of Education some forty years later could be characterized as “Brandeis Briefs” in the way they cited voluminous sociological data that showed the psychological impact of segregation on black children, and thus the incompatibility of the “separate but equal” doctrine with the Constitutional guarantee of equal protection of the laws.
Coates makes a fairly modest suggestion in his case for reparations: that Congress adopt Rep. John Conyers’s annually-submitted bill, known as HR 40, which would create a commission to study the lasting effects of slavery, drawing a line from that condition of servitude, through mass land dispossessions, restrictive covenants, Black Codes, Jim Crow, redlining, sentencing disparities, etc., etc., to determine with specificity how nearly three centuries of chattel slavery still uniquely burdens one class of Americans.
A modest suggestion with extraordinary potential. A formal study, backed by the authority and resources of Congress, could explicate with specificity, the “badges and incidents of slavery.” It could reinvigorate the Thirteenth Amendment and thereby Congress’s powers to pursue policies meant to erase those badges and incidents.
In the wake of Parents Involved in Community Schools v. Seattle Independent School District No. 1, 551 U.S. 701 (2007), the case in which Chief Justice Roberts wrote for the plurality that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” affirmative programs meant to erase undo social relations that form the legacy of slavery are presumed to be in their twilight. A study along the lines Conyers proposes would give Congress the rational basis to pursue any reparations such a study identified as useful. It would also speak to the promise of the Thirteenth Amendment as articulated by the Court in its defense of the Civil Rights Act in Mayer:
Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to “go and come at pleasure” and to “buy and sell when they please”—would be left with “a mere paper guarantee” if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.Mayer at 443 (internal citations omitted).
If, as Mayer suggests, Congress having identified “badges and incidents” of slavery can reach private behavior, a comprehensive Congressional study specifically identifying and detailing the continuum between slavery and the material effects of today’s structural racism—not only housing, but public contracting, college admissions, public school funding, criminal sentencing, public health, etc.—could form the legal and constitutional basis for the type of comprehensive reparations Coates advocates.
Perhaps no such continuum would be found by the study; but as Coates points out, studying the matter itself should not be controversial. Whatever the practical likelihood of such a program coming into existence today, the knowledge that Congress, by dint of the Thirteenth Amendment, has the constitutional authority to pursue such a program is a critical piece of the puzzle.
 In Lochner, the Court notoriously invalidated a New York law limiting bakers’ hours on the grounds that it violated the individual baker’s freedom of contract. Lochner formed the basis of the Court’s hostility to pro-worker and pro-consumer regulation through the New Deal.