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We can have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can't have both.
Louis Dembitz Brandeis 1856-1941
Democracy is not identical with majority rule. Democracy is a State which recognizes the subjection of the minority to the majority, that is, an organization for the systematic use of force by one class against the other, by one part of the population against another.
Vladimir Lenin 1870-1924
State and Revolution
Man's capacity for justice makes democracy possible, but man's inclination to injustice makes democracy necessary.
Reinhold Niebuhr 1892-1971
Children of Light and Children of Darkness (1)
Numerous scholars have addressed the issue of defining democracy. (2) As one can tell from the scholarship analyzing democracy and the quotes above, democracy means different things to different people. However, an increasing amount of scholarship focuses on Niebuhr Reinhold's view of democracy, concluding that democracy requires the correction of oppression or consequences of oppression--substantive democracy. (3)
Most of the world would agree that the United States is a democracy. Indeed, many tout the United States as being the most advanced democracy. (4) Yet, significant portions of its citizens are living under conditions or vestiges of oppression. This seems like a non sequitur: How can democracy countenance oppression or allow people to be burdened by the consequences of that oppression?
Groups of color, including Native Americans, Latino/as, Japanese-Americans, and African peoples in the United States have all been the victims of government-created and supported oppression. This Article focuses on the exclusion of African descendants from U.S. democracy due to their oppression. It argues that the way to correct the oppression and continuing consequences of the oppression suffered by African descendants in the United States is to identify the injuries and formulate remedies that will make them whole--reparations. (5)
Reparations have been advanced as a way to address the continuing inequities that flow from the history of slavery and the Jim Crow Era's de jure discrimination. Slavery and Jim Crow were the major occurrences of oppression and exploitation of African peoples in the United States that led to the current state of inequality. The demand for reparations to bridge this inequality is not new nor has it been relinquished. Indeed, reparations to African descendants in the United States for enslavement, Jim Crow, and continuing discrimination are the focus of numerous books and scholarly articles. (6)
The major focus of these works has been the rationale for reparations to descendants of African peoples enslaved in the United States. Many works delineate the history of enslavement and the horrors of that institution as well as the continuing debasement and oppression experienced by African descendents in the United States during the Jim Crow Era. Other works suggest remedies for reparations. Many of the arguments put forth are couched in terms of morality or argue that reparations are a right because of the injury the federal and state governments caused African descendants and the benefits gained by whites. (7)
The importance of making reparations to African peoples in the United States has therefore been presented as a benefit to whites. Scholars have presented the issue as a way of removing the stain of slavery, Jim Crow, and their continuing consequences, and as a way of absolving the country--and, in some cases corporations--of the debt owed to blacks. (8) However, there is little scholarship that focuses on the essentiality of reparations to a democratic society or on how reparations must be given in order to maintain the equality promised in the evolving understanding of a true democracy. (9)
This Article has democracy as its starting point. First, this Article will discuss the theories of democracy and argue that true democracy incorporates both majoritarian and substantive democracy. Next, this Article will argue that substantive democracy requires each citizen to be valued and heard equally, which cannot happen if some citizens are oppressed or languishing under the vestiges of oppression. This Article will then present a summary of slavery, the Jim Crow Era's de jure discrimination, and their continuing legacies. It will argue that the effects of the U.S. government's oppression of and discrimination against Africans and their descendants during slavery and Jim Crow persist today. This Article will also argue that because this oppression exists, the United States is not a true democracy. Next, this Article will outline the history of resistance to oppression and discrimination, as well as demands for reparations. The Author will assert that there is a need for assessment and remedy formulation for this oppression in the form of reparations and that substantive democracy requires reparations--a sincere effort to identify the continuing injuries and develop reparative remedies, both material and symbolic, to address these continuing injuries that result in U.S. society treating African descendants as citizens, yet, not equal to whites. This Article also argues that the United States' failure to make reparations maintains the myth of white superiority and black inferiority. (10) This Article concludes that in making reparations, the United States can become a true democracy. (11)
Democracy is a concept that has been analyzed and embraced in varying forms since the founding of the United States. The concept is susceptible to many definitions and viewpoints. "The word is what some philosophers have called 'an essentially contested concept', one of those terms we can never all agree to define in the same way because the very definition carries a different social, moral, or political agenda." (12) The most common understandings of democracy include majority rule, representative democracy, and constitutional democracy, with majority rule and representative democracy incorporating the principle of the government following the will of the people. (13) In contrast, constitutional democracy is based on the rights and privileges guaranteed in the Constitution and protected by the courts. Another understanding of democracy is substantive democracy; it is an extension of constitutional democracy that "denotes a social state in which all have equal rights without hereditary or arbitrary differences in rank or privilege." (14) This Section critiques majority-rule democracy in the United States and argues that only substantive democracy ensures the inclusion of all people as participants in a democratic state.
A. Democracy as Majoritarian Rule
Most people in the United States embrace the definition of democracy that asserts that democracy is following the will of the majority in an electoral process--majority rule. (15) This definition focuses on the process and not the result. It is based on what is euphemistically identified as one person, one vote. Elwin Chemerinsky, a constitutional law scholar, argues that "[n]either descriptively nor normatively is majority rule a proper definition of American democracy." (16) This Subsection furthers Chemerinsky's argument by examining ways in which American democracy belies majoritarian rule.
There is evidence in the Constitution itself that the drafters of the Constitution were not embracing majority rule as we define it today. Their democracy was exclusive; it was only for white, landowning men, and they showed their fear of and disdain for the usual understanding of democracy by placing constitutional limits on majority rule. (17) The Constitution includes the election of the President of the United States by the Electoral College and not the majority vote. (18) The Electoral College, therefore, has the power to decide who becomes the President of the United States, contrary to popular vote. (19) U.S. senators were initially chosen by state legislatures, not popular vote; the Bill of Rights further constricted the senators, ostensibly representing the majority, in their ability to act. (20)
Although the popular definition of democracy is majority rule, there are instances in which the courts overturn decisions of the majority. The courts frequently find unconstitutional legislative actions, actions passed by the majority of those elected to office by a majority of the people in legislators' districts to represent the interests of the legislators' constituencies. (21) The government justifies its reversals of the will of the legislative majority on the theory that the U.S. Constitution protects the interests and rights of the minority from the tyranny of the majority--constitutional democracy. (22) Thus, the concept of constitutional democracy trumps majority rule. In fact, constitutional democracy foretells a lesser-known form of democracy--substantive democracy--which seeks to assure stability and equal treatment among the members of the society. (23) Substantive democracy must necessarily incorporate the principle of inclusion. It is within the embrace of substantive democracy that we can conclude the necessity for reparations to African descendants in the United States.
Furthermore, the U.S. democracy is exclusive rather than inclusive. It historically has excluded the voices of many in the society, most notably women, Native Americans, and African descendants. Although the Fourteenth Amendment to the U.S. Constitution guaranteed citizenship to the freed Africans and their descendants, the Fifteenth Amendment guaranteed the right of black men to vote, and the Nineteenth Amendment made women electorally equal to men, (24) it was not until the passage and enforcement of the 1965 Voting Rights Act that African descendants, especially in the South, were able to actualize their right to vote and participate fully in majoritarian democracy, or what some call political democracy. (25) Therefore, the U.S. democracy and the definition of "majority" have been based on exclusionary laws and practices by white males who held power in the United States. Even given the expansion of voting rights to African descendants, women, and other oppressed persons, majority rule, or political democracy, has limited the definition, since the majority of those in the United States do not vote on legislation that governs their lives and the business of the United States. Rather, majoritarian democracy means that the majority of voters' choices for representatives in the House or Senate will be honored. These representatives make decisions about the laws and policies that will govern the lives of those in the United States. Majoritarian democracy, therefore, has developed into what is called representative democracy, where the representatives purportedly represent the interests of the majority. (26)
The problem with representative democracy is that it is not always majority rule, because the representative may vote against what the majority wants. (27) Carla Pratt embraces the term representative democracy, although she does not embrace the narrow definition of democracy as majoritarian rule. (28) She views democracy as more than political equality--the ability to vote and have your vote counted; she asserts that social equality is inherent to democracy. (29) Thus, Pratt's view of democracy appears to include substantive democracy. Even in speaking specifically about representative democracy, she expands the meaning of representative democracy to suggest that black lawyers should represent the interests of the black populace and make their needs known to the powers that be. (30)
The view that there is a shortcoming of representative democracy in the electoral system, whereby the elected officials frequently "do not vote in accord with the preferences of a majority of their constituents,
(31) seems to apply to Pratt's argument that black lawyers serving as African descendants' representatives enhance political democracy for African descendants; however, black lawyers may not voice the needs of all blacks, leaving what may be a significant number of blacks unrepresented. (32) Indeed, some argue "black politics lost its direction when black leaders were 'pulled further and further away from their communities.'" (33)
B. Substantive Democracy
Substantive democracy is the removal of inequalities born from government-sanctioned oppression. To be a true democracy, the United States must guarantee substantive democracy. American democracy falls short of substantive democracy due to the treatment of African descendants. The lack of substantive democracy resulting from African descendants' inequality maintains white supremacy.
Substantive democracy addresses the needs of the populace for justice and equality. Substantive democracy requires dismantling the inequality that the government's conduct creates. This would remove the disabilities obtained through the noncompetitiveness of racism and thereby create an even playing field. (34) As discussed, the democracy that those in power in the United States have articulated developed from a democracy that included only white males and was constricted by the Constitution, which took away their authority to have a representative democracy where the majority of voters selected someone to speak for them and legislate in their interest. Furthermore, the Bill of Rights is inherent in U.S. democracy and guarantees certain rights to all citizens regardless of the will of the majority. The Constitution, therefore, guarantees certain substantive rights to citizens, leading to the conclusion that in creating a constitutional democracy, the drafters of the Constitution adopted a form of substantive democracy.
Protecting the rights given in the Constitution and its amendments is protecting substantive values of the country--and the right to equal protection (the Fifth and Fourteenth Amendments) is among those values. The courts, however, have enforced this right in a procedural way--striking down laws that treat blacks in a discriminatory fashion; (35) …