Photo by Fibonacci Blue via Flickr
Introduction
For decades since the Civil Rights Movement, American legal theory has rested on the belief that the U.S. Constitution is color-blind––and, by extension, that economic policy should be race-neutral too. New economic research is beginning to challenge this view. Recent studies from the influential Economic Policy Institute argue that not only are race-neutral economic policies widely ineffective, but that race-conscious economic policies are necessary in order to overcome generations of systemic inequities. This is a welcome change. Policymakers should heed new economic research and recognize that race-conscious economic policies are the only way to rectify racial economic inequities.
Evidence
The rationale for race-conscious economic policies is simple: if centuries of racism can be considered a severe negative economic shock for minorities, then nothing apart from an equally significant positive economic shock will restore racial equity. Empirical evidence strongly supports this notion. In race-neutral policies from public school funding to corporate America, policies intended to provide benefits for people of color ended up benefiting their white counterparts just as much, largely because they attempted to help minorities through indirect labels. An emerging economic consensus agrees: the most effective way to help minorities historically denied economic opportunities is through policies that actively provide those same minorities with the same economic opportunities that they’ve thus far been denied.
Constitutionality
The most common reaction to any race-conscious policy is to label it unconstitutional. Such labels are inaccurate. Following World War II, reparations were paid out to Japanese internment camp detainees and Native Americans whose land was seized during the war. More recently, Evanston, Illinois, Asheville, North Carolina, and other cities have begun paying reparations to Black residents, and a host of other cities are considering doing the same. Given that reparations in other forms––to victims of natural disasters, job-related injuries, black lung disease, and everything in between––are already socially acceptable and widely seen as effective, it stands to reason that these work just as well. If reparations––perhaps the most obvious example of race-conscious economic policies––are constitutional, then so are other race-conscious policies.
More broadly, accusations of unconstitutionality rest on the notion that the Constitution is color-blind and, therefore, that laws should be too. This is not true, nor has it ever been. Slavery and the three-fifths compromise are stark reminders that the Constitution was never intended to be color-blind. In the modern day, well after the Civil Rights Movement, legal scholars from Harvard Law School, Washington University in St. Louis, and the University of Illinois have advanced the idea that constitutional colorblindness is a false belief. Even the 14th amendment, the argument goes, is carefully worded to permit race-conscious policies. Perhaps most importantly, under the current legal standard of “strict scrutiny”, so long as a race-conscious policy is “narrowly tailored to serve a compelling government interest” then it is still permissible. From every angle, the claim that race-conscious policies are unconstitutional is plainly false.
Conclusion
It is not surprising that policies that explicitly ignore race have failed to overcome racial inequities. The solution––race-conscious economic policies––have been consistently stonewalled by partisanship and false claims of unconstitutionality. New economic research sheds light on how effective race-conscious economic policies can be. It’s now time that we listen.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of The Rice Journal of Public Policy, its staff, or its Editorial Board.
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