Remembering: The Constitution and Federally Funded Apartheid

Joy Milligan | Law | University of Chicago Law Review, forthcoming 2022

For much of the twentieth century, the U.S. government authorized and invested heavily in segregation and racial inequality. Often it did so through federal programs authorized under Congress’ Spending Clause powers, which allowed powerful national investments in areas like health, education, and housing, but frequently created segregated hospitals, schools, and communities. From the New Deal forward, Black leaders pressed constitutional arguments to hold the federal government responsible for its role in deepening racial inequality. Within the federal government, lawyers and administrators recognized the strength of those arguments but decided against halting federal involvement in Jim Crow.

Decades later, the civil rights advocates finally prevailed. By the 1970s, it was black-letter law that the Fifth Amendment’s equal protection component barred federal subsidies or support for racial discrimination. The same “no-aid” principle was codified in the landmark Civil Rights Act of 1964. However, from the 1980s onward the hard-won constitutional mandate became increasingly difficult to enforce, blocked by judicially-constructed procedural obstacles. The substantive Fifth Amendment ideal receded, due to increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle.

This Article reveals that forgotten history, breaking the constitutional silence that has fallen over the Fifth Amendment. I argue that the Fifth Amendment norm, and the underlying reality of long-term federal participation in racial apartheid, should no longer be ignored. The costs of doing so are significant: civil rights frameworks have been distorted, leaving no systemic check or means of redress for the discriminatory use of federal funds. Further, the nation’s constitutional memory and deliberations have been shortchanged. Even if the judiciary remains unwilling to enforce the no-aid principle, other actors should revive it. Our polity should again debate federal constitutional responsibility for Spending Clause programs, and, in doing so, confront the nation’s obligation to repair the apartheid it once bankrolled.