III. STRICT SCRUTINY IS NOT THE PROPER STANDARD OF REVIEW FOR REMEDIAL AFFIRMATIVE ACTION
A. RACIAL CLASSIFICATIONS ARE INCIDENTAL TO REMEDIAL AFFIRMATIVE ACTION
Amici are not unmindful of this Court's announced standards of strict scrutiny for racial classifications in cases such as Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) ("any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny"). As the number of minority groups covered by racial preferences has multiplied, the wider utilization of race as a category has attracted strict scrutiny. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 477-478, 506 (O'Connor, J.) ("the gross overinclusiveness of Richmond's racial preference strongly impugns the city's claim of remedial motivation"). Although reparations narrowly tailored to the crimes of slavery and de jure racial discrimination could meet the strict scrutiny test, a less stringent Constitutional standard should apply.
The choice of race as a classification system to deny fundamental human rights for Africans was made by the oppressors, not the Africans. The category originated in white supremacy in the Colonial period, and was later imprinted upon the Constitution. Several provisions of the Constitution bore racial distinctions, such as the Slave Import clause, U.S. Const., Art. I, Sec. 9, the Three-Fifths clause, U.S. Const. Art. I, Sec. 2, Cl. 3, amended by Amend. XIV, Sec. 2, and the provisions regarding citizenship which were interpreted in Dred Scott v. Sandford, 60 U.S. 393 (1856), to deny citizenship to African descendants. See William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 (1977); Don E. Fehrenbacher, The Slaveholding Republic (2001). For approximately a century following Emancipation, de jure racial discrimination flourished. Government supplied the racial definitions and enforced compliance.
When remedies are fashioned for these crimes, the alarm is raised with feigned surprise that all of the beneficiaries are members of a particular race. How could it possibly be otherwise? If all of the oppressed people are of a certain race then it is highly disingenuous to complain of that very fact when a remedy is designed. Perhaps this circumstance should not be viewed as a racial classification at all; it is fundamentally a classification based on common injury. Reparations for such crimes can be narrowly tailored to benefit the oppressed and their descendants without becoming a racial classification, perhaps even to the satisfaction of Justice Scalia: "individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race." Adarand, 515 U.S., at 239 (Scalia, J., concurring in part and concurring in the judgment). Such reparations do not require racial classification at all because the classification is based on common injury. A few examples will illustrate:
In Korematsu v. United States, 323 U.S. 214 (1944), the Court upheld the internal relocation and confinement of persons of Japanese ancestry during the Second World War. Decades later, groups of Japanese Americans sued for damages, United States v. Hohri, 482 U.S. 64 (1987). See also The Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 903 (1988) (authorizing payment of reparations to Japanese Americans interned during World War II).
While the Civil Liberties Act of 1988 primarily benefits persons of Japanese ancestry, that fact is incidental. The racial category was applied by the wartime commanders and leaders who insisted on exclusion and internment. The Civil Liberties Act of 1988 does not employ a suspect racial classification, but merely seeks to remedy, after careful Congressional study, injustice committed on the basis of race. See Obadele v. United States, 52 Fed. Cl. 432 (2002).
Likewise, in the last decades, many Holocaust victims and their descendants have received hundreds of millions of dollars in reparations for crimes against humanity during the era of the Nazi regime. See Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices 3-156 (2000). Most of the Holocaust reparation recipients are Jewish, although other distinct ethnic groups have also received some reparations, such as the Roma. Are these ethnic, religious or racial categories ‘immediately suspect,' Korematsu v. United States, 323 U.S. 214, 216 (1944), or are they merely reflective of the crimes against humanity, and thus entirely appropriate? Reparations to survivors and their descendants are entirely appropriate and do not run afoul of the Equal Protection Clause of the Fourteenth Amendment.
The history of systemic racism in America is hideous and corrosive, and the Fourteenth Amendment does not require race crimes to be ignored. Freed from the albatross of a "suspect racial classification" analysis, affirmative action in education designed as reparations for the crimes of slavery and de jure racial discrimination should be subject to mere ordinary Constitutional scrutiny, rather than any stricter formulation.
B. THE REMEDIAL PURPOSES OF THE FOURTEENTH AMENDMENT ARE OF PARAMOUNT IMPORTANCE AND SHOULD NOT BE SUBJECTED TO STRICT SCRUTINY
This Court first interpreted the Thirteenth, Fourteenth and Fifteenth Amendments in The Slaughter-House Cases, 83 U.S. 36, 67 (1872), enshrining the Civil War Amendments in the heroic language of "human rights," The Slaughter-House Cases, 83 U.S., at 67-68, and clearly described the purpose of the Amendments:
"[T]he one pervading purpose in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him." Id., at 71.
So certain was the Court of the exclusive focus of the Civil War Amendments, that Justice Miller mused:
"We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other." The Slaughter-House Cases, 83 U.S., at 81.
This Court has long recognized that any remedial program under the Civil War Amendments must be balanced against a desire to transcend the pernicious use of racial categories. One should not lose sight, however, of the magnitude of the gap between white and African American citizens, both in 1865 and today. An important purpose of the Civil War Amendments was to close that gap in important respects, and yet much of that goal was frustrated for a century by the law. See Part II, ante.
Remedial affirmative action may be utilized without creating a permanent "racial entitlement" as feared by Justice Scalia in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (Scalia, J., concurring in part and concurring in judgment). As Justice Harlan explained:
"My brethren say that when a man has emerged from slavery, and by the aid of beneficient 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 mere citizen, and ceases to be the special favorite of the laws, and when his fights as a citizen, or a man, are to be protected in the ordinary modes by which other men's fights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws." The Civil Rights Cases, 109 U.S. at 61.
Have the laws of Michigan, other States and the federal laws of the United States, from Emancipation to today, treated African Americans as "the special favorite of the law?" Absolutely not. Certainly from Reconstruction to 1964, white supremacists held the upper hand.
Have African Americans "shaken off" the consequences of the disaster of enslavement and enjoyed the same economic and social conditions as white Americans? Absolutely not. Unlike descendants of immigrant groups that came to the United States willingly, African Americans still are disadvantaged in Michigan and throughout the United States in terms of education, wealth, income, health and employment, direct manifestations of past and present systemic racial discrimination. See Respondents' Briefs on the Merits.
The emergence of affirmative action in the last generation ushered a remedial response to these continuing consequences of chattel slavery, including its progeny, de jure discrimination. To abandon this remedy when the gap remains wide is to abandon the mission of the Civil War Amendments.
