Theodore R. Johnson is a career naval officer, former White House fellow and doctoral candidate in law and policy at Northeastern University.
Yet a year of protests over disparate law enforcement practices, a decade of particularly sharp income inequality and centuries of imparity in America show that racial reconciliation is impossible without some kind of broad-based, systemic reparations. Recognizing the original sin is simply not enough; we must also make moral and material amends for our nation’s treatment of African American citizens. But if a pecuniary answer can’t fix the structural disadvantage — and it can’t — what can?
Thanks to a compromise between Southern slaveholders who wanted enslaved blacks counted in the population, for the sake of boosting Southern congressional representation, and Northern whites who didn’t, the framers enshrined the three-fifths clause in the Constitution. This agreement set the census value of a slave as 60 percent of the value of a free person. Even after the 13th Amendment neutralized the political (and moral) compromise by abolishing slavery, Jim Crow laws, which contravened the 14th Amendment’s guarantee of equality, stopped blacks from voting. The just answer today is to invert that ratio. If black Americans were once counted as three-fifths of a person, let each African American voter now count as five-thirds.
Reparations in America have come to mean “free” money, so any serious discussion about them also mandates a discussion of how much — an exercise doomed to failure. Other ways of imagining reparations (as the spilled blood of more than half a million Union soldiers during the Civil War; as affirmative action in universities and workplaces; as subsidized education) don’t involve cash payments, but they also don’t do enough to combat the structural disadvantages black Americans face — disadvantages that have gone largely unaddressed by our legislative and executive branches.
That's because the problem is almost unfathomably large. In a report titled "The Unfinished March," the Economic Policy Institute found that school segregation, black unemployment, lack of access to fair housing and living wages, and abysmal African American household wealth remain at essentially the same levels of disparity today as they did in 1963, when the March on Washington occurred. Median household wealth today is $141,900 for whites and only $11,000 for blacks. Despite making up only 13 percent of the population, black Americans are 27 percent of those living at or below the poverty line; the white unemployment rate is 4.6 percent, while it's 9.6 percent for blacks; during the housing bubble of the mid-2000s, 53 percent of blacks received high-cost mortgages, while only 18 percent of whites did; the black incarceration rate is 2,207 per 100,000, compared with the national rate of 707 per 100,000; nearly 3 in 4 black children today attend segregated schools; in many communities, blacks have poorer health outcomes and access to just half the social services of whites. The list goes on ad nauseam.
These are national issues that require policy solutions — and the political will to implement them, which clearly doesn’t yet exist. That’s why reparations should be apportioned in the exercise of a civic right (a duty, even) long denied to the descendants of the enslaved. A five-thirds compromise would imbue African Americans with a larger political voice that could be used to fight the structural discrimination expressed in housing, education, criminal justice and employment. Allowing black votes to count for 167 percent of everyone else’s would mean that 30 million African American votes would count as 50 million, substituting super-votes for the implausible idea of cash payments.
This weighted vote, coupled with an increasingly active black electorate that in 2012 had a higher voter participation rate than whites for the first time in history, would offer African Americans an outsize influence on national and state elections. Politicians, finally, would have to truly compete for the black vote, or a substantial share of it, to attain or remain in office. This would provide an incentive, even for purely self-interested politicians, to prioritize African American policy concerns and act on them, or face a loss at the polls.
True, the five-thirds notion is out of sync with the "one person, one vote" mantra the nation prides itself on. But the precise legal meaning of that phrase is still unclear, which is why the Supreme Court will review it next term in Evenwel v. Abbott. That case is about the basis for determining a district's size: Should it be the total population or just the population of eligible voters? Currently, a district with a significant number of ineligible voters (children, undocumented immigrants, transient military personnel) counts those residents toward its population, thereby adding weight to the ballots of its eligible voters. (Naturally, districts with low numbers of such ineligible voters don't appreciate their residents' votes counting for less.)
Even the U.S. Senate, where Delaware has just as much say as California, belies the notion of strict representation as a means to protect the rights of the minority. In the House of Representatives, Montana has one member to speak for its entire population of 1 million people, while Rep. Jim Langevin, from Rhode Island’s 2nd Congressional District, has just 525,000 constituents. Our votes are already weighted.
What’s more, five-thirds has a redemptive, lyrical quality to it: The weighted portion of the vote could be interpreted as the voice of those who earned the right to the ballot but were unjustly silenced. Too sentimental? Fine. Economics and statistics could help assign the right value for proper weighting. The magnitude of the challenges and the corresponding solution could be taken up by Congress as a giant math problem, but in the end, racial reconciliation requires a moral and political mandate to make black America whole.
This plan should be temporally limited in scope, since the point is not to permanently install a historical equivalence but to erase structural disadvantages. Weighted voting could be fixed to some predetermined period of years, say 24, which is only about a third of the number of years the three-fifths compromise was in place. This amount of time would include multiple presidential, congressional, state and local elections, as well as referenda. Each elected office, no matter its term, would face several elections, allowing their constituencies successive opportunities to hold their representatives accountable.
And then the problem of who exactly is eligible must be addressed. Would a biracial voter qualify? A black immigrant? And what exactly is an election official to do when Rachel Dolezal shows up to claim her five-thirds vote? The government shouldn't be the sole arbiter of who gets to be black — nor flirt with archaic prescriptions such as the one-drop rule in determining a voter's race. The most straightforward approach would be to limit access to weighted voting to those American-born citizens who have demonstrated through government documents, such as drivers' licenses or birth certificates, that they identify, and are identified by others, as black or African American. There are bound to be instances where this approach is challenged, and one answer would be to model guidelines after the general requirements for establishing American Indian or Alaska Native ancestry as outlined by the Bureau of Indian Affairs, which involve establishing that a lineal ancestor belongs to a specific tribe and then producing vital records that document a relationship to that ancestor.
Granting reparations in this way would empower African Americans but gift nothing: Black voters would still have to claim their share of reparations at every election — a suitable settlement in a nation allergic to handouts. Weighted-vote reparations would require African Americans to register and turn out in order to achieve the desired impact on public policy. It would require sustained civic and political engagement.
Of course, weighted-vote reparations are only slightly more politically feasible than a multi-trillion-dollar payout. But we have to consider novel approaches to racial reconciliation — including apology, forgiveness and, yes, some kind of restitution — if we are serious about ridding the nation of barriers to opportunity and overcoming the racial discrimination woven into America’s fabric. If racism is the culprit, then dismantling it requires the same tools that constructed it.