Why the California Constitution may Limit the Ability to Enact Individual Slavery Reparations

The State Constitutional Considerations for Potential Slavery Reparations

As California’s official slavery reparations panel continues to develop proposals for the state to pay slavery reparations, including individual reparations to black residents and former black residents who have previously moved out of state, there are key constitutional issues that need to be evaluated.¹ Provisions of the California Constitution may limit the state’s ability to implement such a program.²

The Slavery Reparations Panel has voted that any black person in California, which was a free state with a documented history of government authorities freeing enslaved blacks wrongfully brought from the south, whose family was located in the United States before 1900 is eligible for individual slavery reparations.³

Because the slavery reparations would only be for descendants of black slaves and for those who are not descended from slaves but are black, this would make individual slavery reparations a racial classification, which raises equal protection issues under the Fourteenth Amendment⁴ and Article I, Sections 7,⁵ 8,⁶ and 31⁷ of the California Constitution.⁸

These provisions certainly limit the type of reparations that could be given for slavery. For example, California is categorically prohibited from offering specialized scholarships to all African Americans at its public universities or offering specialized housing loans or business loans as forms of slavery reparations.⁹

But some little known provisions of the California Constitution may also limit the state’s ability to provide individual reparations for slavery. Generally, public expenditures cannot be made unless they are made under a lawful appropriation from the State Legislature.¹⁰

While the State Legislature typically has plenary power to legislate, the California Constitution can and does specifically restrict how it may spend money.¹¹ Specifically, Sections 3 and 6 of Article XVI of the California Constitution limit how the State Legislature may expend public funds and must be carefully examined in determining whether the state may pay for slavery reparations.

Article XVI, Section 3

Section 3 of Article XVI of the California Constitution provides that “No money shall ever be appropriated or drawn from the State Treasury for the purpose or benefit of any corporation, association, asylum, hospital, or any other institution not under the exclusive management and control of the State as a state institution, nor shall any grant or donation of property ever be made thereto by the State . . .”.¹²

This constitutional provision removed the State Legislature’s power to make appropriations to private or quasi-public entities or authorize local government to do the same.¹³ While interpreted broadly, this section prohibits the state from making grants to private institutions exclusively outside of its control and not serving a public purpose.¹⁴

In Frohliger v. Richardson,¹⁵ the California Court of Appeals considered the constitutionality of an appropriation of money by the California State Legislature for the restoration of the historic San Diego Mission, which was owned and operated by the Catholic Church.¹⁶ The San Diego Mission was used for the exclusive benefit of the Catholic Church.¹⁷

A lawsuit was brought, alleging, among other things, a violation of the predecessor of the current Article XVI, Section 3.¹⁸ The Defendants argued the expenditure was justified because of the historical and educational purposes of maintaining California’s historic missions.¹⁹

However, while the Court of Appeals was captivated by the high-minded purpose, that did not change its constitutional analysis, the Court writing: “Indeed, California has a literature and tradition all her own. It is beautiful, inspiring, wonderful. And, although we are keenly sensitive to its spell, we may not permit thought of it to influence us while examining the proposition before us in the light of the solemn enactments of our constitution. We must not close our eyes to the positive constitutional inhibitions against appropriation of public funds for other than lawful purposes.”²⁰

As the Court concluded, funds for restoring the historic mission were a public expenditure for the sole benefit of a private entity.²¹ While the Court of Appeals agreed that the missions were of historical and educational interest, their restoration did not serve a public purpose for which the government could give money to a private institution.²² The Court thus held that the appropriation to restore the San Diego Mission violated the California Constitution.²³ While Frohliger is almost a century old, it remains good law today.²⁴

If slavery reparations are directed towards any private institutions, whether those expenditures serve a public purpose and whether the institution is under the control of the state will have to be considered.²⁵

Article XVI, Section 6

Section 6 of Article XVI of the California Constitution provides that “The Legislature shall have no power . . . to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever.”²⁶

Under this provision, the State Legislature cannot appropriate any treasury funds or order a local city or county government to make payments “for which there is no enforceable claim, or upon a claim which exists merely by reason of some moral or equitable obligation, which, in the mind of a generous or even a just individual, dealing with his own moneys, might prompt him to recognize as worthy of some reward.”²⁷

What is a gift?

“To be a gift, this voluntary transfer must be gratuitous, -- a handing over to the donee something for nothing.”²⁸ A gift is legally defined as the voluntary transfer of property to another without any consideration or compensation for that property.²⁹ A gift can even include the act of the State Legislature cancelling a tax previously owed by the taxpayer.³⁰

This provision has generated a rather complicated and not entirely consistent body of law. In the 19th and early 20th centuries, the courts tended to strictly enforce this section, striking down legislative acts and government programs resulting in personal financial benefits that the courts defined as unconstitutional gifts.³¹

This of course raised key issues of whether the State Legislature could engage in basic governance without running afoul of the State Constitution. Could the State Legislature enact welfare programs and other public benefit programs where it effectively gave gifts to individual recipients? Or appropriate money for public works projects like subway stations or freeways that would benefit private parties?³² What about spending money to provide free textbooks for public school students?³³ The California Supreme Court ultimately interpreted the constitutional amendment as allowing gifts to individuals if the gifts were ultimately made for a public purpose.³⁴

As the 20th century progressed, with the onset of the Great Depression, expansion of government bureaucracy, and the United States Supreme Court’s abandonment of the economic liberty doctrine, the courts became more lenient in their interpretation of the constitutional provision.³⁵ As the Legislature provided for things like welfare programs, veterans benefits programs, public housing, and free textbooks for students, the courts upheld these programs as constitutional.³⁶

Ultimately, the California Supreme Court held that an appropriation of public funds that benefitted a private individual could be considered constitutional if the expenditure was made for a public purpose.³⁷ The California Supreme Court also held that the courts would generally defer to the Legislature on what constituted a public purpose.³⁸

However, the courts never reversed the original gift prohibition decision case law. Far from a dead letter law, Section 6 continues to be a constitutional provision that courts adhere to. Courts still hold that if the state expends funds for the compromise of an invalid legal claim, the state violates the constitutional gift clause.³⁹ As the California courts have re-asserted their role in evaluating legislative fact-finding when ruling on state constitutional matters, it becomes more likely that whether a gift constitutes a public purpose will be carefully scrutinized by the courts.⁴⁰

Reparations for slavery directed towards individuals would almost certainly constitute a gift. Any individual slavery reparation would be something of value given by the state to an individual without any consideration in return.⁴¹ The individuals who would receive slavery reparations are those who were never slaves themselves.⁴² No legal theory exists in which the state is legally liable to them for slavery.⁴³ Most of the individuals eligible for slavery reparations are descended from those who were never held captive as slaves in California.⁴⁴

Of those who are descended from slaves in California, those slaves were held illegally in contravention of existing law at the time.⁴⁵ Some of the recipients of slavery reparations may no longer be California residents. All these considerations would factor into any analysis of whether slavery reparations serves a public purpose. Because how the program is created could determine whether the program is constitutional.

A Great Depression era piece of legislation illustrates this. In 1938, the California Supreme Court unanimously struck down a statute that released the liens and mortgages on homes of all welfare assistance recipients who had entered into them.⁴⁶ Problematically, the law did not distinguish between holders of these liens and mortgages who were currently welfare recipients and third parties who happened to hold these interests but were not the welfare recipients in question.⁴⁷

As the Court reasoned, relieving individuals from their debt obligations who had no financial difficulties but simply had come to own the interest on the lien or mortgage initially held by someone who now received welfare from the state constituted an unconstitutional gift.⁴⁸

Just two years later, the California Supreme Court unanimously upheld the constitutionality of a similar bill releasing the liens and mortgages of welfare recipients.⁴⁹ The legislation had been changed to narrowly assist only those who were indigent, not simply give a windfall to anyone who happened to hold a lien or mortgage interest of a welfare recipient.⁵⁰

The question of whether individual slavery reparations would be constitutional depends upon whether it is a public purpose. Whether it is will be subject to great debate but must be considered when planning slavery reparations.

Potential Alternatives for Providing Reparations Under Section 6 of Article XVI

If individual slavery reparations do not satisfy the public purpose clause of the California Constitution, is there a possibility of still providing slavery reparations to individuals without offending Article XVI, Section 6? Yes.

If enacted at the ballot box through a voter initiative, it is likely that the prohibition on the gift of public funds would not apply as linguistically, the gift provision only applies to the State Legislature, and not the voting public.⁵¹ This is not guaranteed as the term “Legislature” in the State Constitution has been held to include the voters exercising the initiative power.⁵² And the power of the voters is generally co-extensive with that of the State Legislature.⁵³ However, that line of reasoning has never been used to restrict the power of the electorate.⁵⁴ And it is certainly possible that the voter initiative process could be used to enact an individual slavery reparations plan in California.

While individual slavery reparations are not necessarily unconstitutional, the limitations of the California Constitution must be carefully examined in implementing a plan for them. And the constraints of the California Constitution must be part of any debate over the implementation and form of individual slavery reparations.

1. https://calmatters.org/california-divide/2023/01/reparations-task-force-2/

2. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

3. https://calmatters.org/california-divide/2022/03/california-reparations-task-force-eligibility/