E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This week, the U.S. Treasury Department renamed the Treasury
Annex in Washington, D.C. the Freedman’s Bank Building, commemorating
the 150th anniversary of the Freedman’s Savings and Trust Company, a
federal bank created during Reconstruction to benefit the newly freed slaves
and their descendants.The Freedman’s
Bank Act was one of many race-conscious federal statutes passed,
contemporaneous with the Fourteenth Amendment, to foster equal opportunities
and help realize the Fourteenth Amendment’s promise of equal protection of the
laws for all persons.The Framers of the
Fourteenth Amendment understood that race-conscious measures were necessary to
fulfill the promise of equality contained in the Fourteenth Amendment.Today, however, conservatives bent on eliminating
affirmative action in education are turning a blind eye to this history.
Earlier this week, in an op-ed published in the Washington Times, Professor Paul Moreno argues
that “affirmative action has no basis in the 14th amendment,” criticizing
the brief
that Constitutional Accountability Center filed in Fisher v. University of Texas on behalf of some of the nation’s
leading constitutional law scholars, including Professors Bruce Ackerman, Jack
Balkin, Burt Neuborne, James Ryan, Eric Schnapper, and Adam Winkler, as bad,
revisionist history.Much of Moreno’s
piece does not even address the facts, preferring instead to attack civil
rights advocates from Brown v. Board of
Education on for misrepresenting Reconstruction history.It is understandable why Moreno refuses to
engage with the argument set out in the brief: the basic facts of Fourteenth
Amendment history show that the Framers of the Fourteenth Amendment were the
originators of affirmative action.
When Moreno does get around to examining Fourteenth
Amendment history, he falters badly.Moreno
makes much of the fact that the Freedman’s Bureau gave benefits both to the
newly freed slaves and to refugees, whose lives had been devastated by the
Civil War.But Moreno studiously ignores
the fact that the Freedman’s Bureau Act
gave different benefits to freed slaves and refugees, leading opponents of
Reconstruction to claim that the Act made blacks “superior” rather than “equal
before the law,” and thus was “in opposition to the plain spirit” of the
Constitution.
The Freedman’s Bureau Act did not stand alone.During Reconstruction, Congress enacted
numerous other forward-looking race-conscious measures as well, broadly
extending assistance to African Americans, whether or not they had been slaves.
Congress in 1865 established a bank just
for freed slaves and “their descendants”—the Act celebrated in the renaming
ceremony this week in Washington.In
1866, Congress appropriated funds to help “destitute colored women and
children.” And in 1867, Congress also enacted race-based legislation to protect
the bounty and prize-money due to African American soldiers who had served in
the Union Army, even as similar protections were denied to white soldiers. Once
again, opponents argued against such laws because they didn’t satisfy what they
said was the Constitution’s demand of colorblindness. “[T]here is no reason . .
. we should pass a law such as this applicable to colored people and not apply
it to white people,” insisted Senator James Wilson Grimes of Iowa.Moreno does not even mention this history,
let alone try to deal with it.
In a more serious vein, over at the Originalism Blog,
Professor Mike Rappaport argues
that the Freedman’s Bureau Act does not support the constitutionality of modern
race-conscious affirmative action programs.First, Rappaport asserts that the Fourteenth Amendment is a limit on the
actions of state government, not Congress, and thus federal statutes, like the
Freedman’s Bureau Act, were not subject to the Fourteenth Amendment’s equality
requirement.Second, Rappaport claims that
the Freedman’s Bureau was remedial in nature, designed to redress slavery, and
thus would satisfy strict scrutiny as modern Court precedent requires.This
fares no better.
In the debates over the federal race-conscious measures of
the Reconstruction Era, no one took the view, suggested by Rappaport, that the
federal government was not bound by the Constitution’s demand for equal
treatment before the law. That was a core principle of due process, to
which the federal government was bound under the Fifth Amendment. (The Supreme Court has said as much
repeatedly.) In the arguments over
racial preferences in Congress, the Fourteenth Amendment Framers and their
opponents all assumed that the federal government was required to respect the
equality of all persons. Supporters of
the Fourteenth Amendment argued that sometimes taking race into account was
necessary to fulfill that goal and made no differentiation between state and
federal law in this regard, and they repeatedly won this debate in legislative
battles.
Nor was the race-conscious legislation enacted by the
Framers of the Fourteenth Amendment strictly remedial as Rappaport
suggests.The acts passed
contemporaneous with the Fourteenth Amendment were not limited to the former
slaves or the goals of redressing badges of slavery or other
government-sponsored racial oppression.Rather—like modern race-conscious admissions programs and other policies
that use race to foster equality—the race-conscious measures enacted by the
Framers of the Fourteenth Amendment were forward-looking in design, seeking to
fulfill the promise of equality contained in the Fourteenth Amendment.The Freedman’s Bank celebrated this week is a
perfect example, ensuring that freed slaves and their descendants would have a
place to keep their money, enabling them, as Frederick Douglass put it, “to
rise in the world.”
Reasonable people can disagree about how to apply, nearly a
century and a half later, the Fourteenth Amendment’s guarantee of the equal
protection of the laws in light of the Framers’ repeated approval of
affirmative action programs. But the right answer cannot be to
marginalize what the Americans who wrote and ratified the Fourteenth Amendment
actually did. And what they did was
enact race-conscious measures, both before and after the proposal of the
Fourteenth Amendment, to realize the Fourteenth Amendment’s guarantee of equal
protection of the laws.
David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Fisher. This post is cross-posted at Text and History.