Follow the Yellow Brick Road: Perusing the Path to Constitutionally Permissible Reparations for Slavery and Jim Crow Era Governmental Discrimination

Abstract

A growing body of scholarship has developed around the issue of reparations for the Holocaust, slavery, and other social injustices. Numerous articles have proposed reparations programs for America’s legacy of race based slavery and segregation, but the constitutionality of those programs has largely been ignored in the literature. Instead, most scholarship focuses on the legal or political justification for existing or new reparations proposals. This article charts new ground in the area by examining prototypical reparations proposals by the leading scholars in the field for compliance with the Court’s equal protection requirements. The Supreme Court’s affirmative action jurisprudence represents the legal terrain that a reparations program must traverse to comply with the Court’s equal protection requirements. As a chief contribution to existing scholarship, the article maps a path to constitutionally permissible reparations for slavery and governmental segregation. Using this map, the article determines whether prominent reparations proposals are on the road to a constitutional determination or stuck in the woods.

Keywords: reparations, slavery, race-based affirmative action, equal protection, constitutional, segregation