You can’t ‘cease and desist’ equality
I recently received a startling email from an attorney, demanding that I “cease and desist” speaking out against reparations for black Americans.
First, some background: For decades, Pacific Legal Foundation has been reporting and speaking out against government efforts to reward or disadvantage individuals based on their race. That includes reparations proposals across the country that seek to compensate black Americans for the injustice of slavery.
California has been especially determined to implement reparations-related legislation, so PLF has been testifying in the state legislature. Our argument is simple: Reparations bills are unconstitutional because they distribute benefits and burdens on the basis of race and ancestry to individuals that were neither victims nor perpetrators of slavery. This unequal treatment by the state is unacceptable.
Shortly after I appeared in Sacramento to speak out against a bill that would set aside home purchase assistance funds for descendants of enslaved persons, I received an email from an attorney and reparations advocate demanding that PLF and I “cease and desist” our opposition to reparations. The sender absurdly castigated us for “unconstitutional lobbying” against reparations, engaging in “race-based targeting,” and violating their “personal pursuit of life liberty and happiness as guaranteed by the Constitution.” They then threatened to sue me and PLF for “harassment.”
In other words, this letter was telling us to shut up. (You would think an attorney would be familiar with the First Amendment.)
Excerpt 1 of “cease and desist” letter.
There is a lot to unpack in the ridiculous letter.
First, if the sender truly knew PLF’s work, they would know that we oppose all racial discrimination by the government when we can. Any time government makes race relevant—any race—to the provision of benefits, it demeans us all.
Excerpt 2 of “cease and desist” letter.
Second, PLF’s behavior cannot be considered unconstitutional because the Constitution restrains only the government, and PLF is not the government. We fight the government. And the Constitution protects what PLF does from the government.
Third, PLF and I have our own right to pursue life, liberty, and happiness. That pursuit includes exercising the First Amendment right to petition the government to reject certain legislation. For PLF’s part, we have never told anyone, including reparations activists, to shut up. We welcome the discussion and oppose government efforts to silence them.
PLF is especially no stranger to the pursuit of liberty. Protecting liberty is what we do. And that’s exactly why we strongly oppose these reparations bills. The government violates our liberty when it treats us unequally. The Constitution’s guarantee of the equal protection of the laws and the principle that all men are created equal means the government cannot use our race or our ancestors to treat us differently.
Liberty means the government must treat us as individuals. We as individuals have our own unique traits, abilities, talents, and lived experiences. But when the government assumes those things about us based on our race, skin color, or who our ancestors are—all things we can’t control—it ignores our individuality. And you are not free when the government treats you differently based on things you can’t control. As the Supreme Court recognized, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” 1
But that is exactly what many of these reparations bills do. They assume that if you had ancestors who were enslaved, you are a victim of discrimination today or have inherent disadvantages. Notably, many of these bills don’t even directly benefit individuals that have actually suffered discrimination. The housing bill I spoke about last week, for example, doesn’t set aside funds for people who have experienced housing discrimination. It sets it aside for people with the right lineage. These reparations bills fundamentally ignore one’s lived experiences and the personal harm one may have suffered. Instead, they focus on who you are descended from. Meanwhile, individuals with different ancestors, many of whom were never involved in slavery, and some who have actually faced discrimination today, are treated worse.
The horror of slavery and its discriminatory legacy that abused countless Americans are indisputable. But it is because of that history that we shouldn’t trust government to continue using race to treat people differently, even when that treatment is well-intentioned. The answer to systemic discrimination can’t be to put more discrimination in the system, especially considering the government’s poor track record on race. That is why trusting the government with race demands extreme caution and strict scrutiny. To do otherwise is to ignore that history at our peril and permit the state “to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.” 2
Ultimately, our opposition to reparations is simply in support of liberty. Californians have a right to a government that views them as individuals, and not as stereotypical components of racial or ancestral classes. Until the state fully recognizes this, we will never cease and desist in the fight for liberty.
