The Second Freedmen's Bureau Bill's Constitution

For the Symposium on the Constitution and Economic Inequality

This paper focuses on the crucial elements of post-Civil War constitutionalism scholars miss when they give the place of pride to the Civil Rights Act at the expense of the Second Freedmen’s Bureau Bill.  The Republicans who framed the Second Freedmen’s Bureau Bill understood that judicial action could not eradicate slavery.  Their legislative and constitutional program recognized that persons could transition from slaves to full citizens only if Congress aggressively exercised national power under Section 2 of the Thirteenth Amendment.  Legislation was necessary to provide former slaves with various goods and services, the precise provision of which depending on local circumstances and changing conditions.  Given the need for a high degree of nimbleness in the managing of that transition, entrenching crucial features of the Freedmen’s Bureau Bill in a constitutional amendment that would be enforced by the federal judiciary made little sense.  Instead, the Second Freedmen’s Bureau Bill was drafted by Republicans who understood that Congress rather than the judiciary was expected to play the lead role in removing all badges and incidents of slavery in American constitutional life.

The Second Freedmen’s Bureau Bill was also designed to prevent white persons from making transitions from freedom to dependency.  Sections 3-6 of that bill provided both freedmen and destitute refugees with various goods and services.  Republican supporters of this provisions emphasized that Congress had the obligation to act for the general welfare and that preventing the dependency inherent in economic destitution justified legislative action.  As significantly, Republicans were as inclined to justify the provision of goods and services to white persons who had never been slaves under Section 2 of the Thirteenth Amendment.  Their arguments for the constitutionality of the Second Freedmen’s Bureau Bill insisted that a minimum degree of economic security and education was a central condition of freedom and full citizenship.

Restoring the Second Freedmen’s Bureau Bill to the core of Reconstruction explains some features of the post-Civil War Amendments, while challenging other shibboleths of American constitutionalism.  Commentary on the post-Civil War Amendments begins by acknowledging that the text speaks in generalities, but fails to appreciate the institutional logic of that language.  Republicans did not ratify a precise legal code because they recognized that Congress needed substantial discretion to determine the policies that best ensured that persons of color transitioned from slavery to enjoying the full rights of citizens of a free republic and not, as often maintained, because they could not agree on specifics or were more interested in moral exhortation that precise legal norms.  Contrary to Richard Posner and William Rehnquist, the Constitution of the United States is not a charter of negative liberties.  The Second Freedmen’s Bureau Bill’s Constitution is committed to ensuring the national government has the power necessary to act for the general welfare and, as such, is more an instrument for preventing local and private tyranny than for limiting government.  Reconstruction Republicans believed that national government under the Thirteenth Amendment had duties to provide goods and services to destitute citizens and freedmen who need government assistance making the transition for slavery to independent citizen.  Finally, the debates over the Second Freedmen’s Bureau Bill highlight the perversity of contemporary constitutional decisions which insist that the federal judiciary is the institution primarily responsible for implementing the post-Civil War amendments.  Republicans when defending the constitutionality of the Second Freedmen’s Bureau Bill uniformly insisted that Congress was the institution constitutionally charged with guaranteeing those positive rights, not the Supreme Court of the United States.  More precisely, the Republican Party had the place of constitutional honor.  The post-Civil War Amendments were framed at a time when the dominant party were considered the primary vehicle for ensuring constitutional fidelity.  Republicans in the Thirty-Eighth Congress assumed that their party, not any particular institution, was the institution that determined the measures constitutionally necessary to realize the promise of the Thirteenth and, later, Fourteenth Amendments. Their arguments on the Second Freedmen’s Bureau Bill highlight the crucial features of American constitutionalism that judges, governing officials, lawyers and citizens miss when they look at the Constitution through the modern lens of judicial supremacy. 

The Second Freedmen’s Bureau Bill’s Constitution provides a distinctive perspective on economic inequalities and American constitutionalism.  The persons responsible for the original Constitution and post-Civil War Constitution were concerned with economic inequalities or at least economic rights, but their concerns are not explicitly manifested in the text of the Constitution.  The Constitution of 1789 and the Constitution of 1868 do not enumerate economic rights because their framers regarded constitutions as empowering rather than as disabling mechanisms.  Contemporary Americans assume that constitutions protect rights by enumerating limits on government power and empowering the national judiciary to enforce those restrictions.  The persons responsible for the Constitution of 1789 believed that rights were best protected by structuring government institutions so that elite leaders would have the combination of interests, values and capacities that would lead them to protect rights.  The persons responsible for the post-Civil War Constitution believed rights were best protected when the party of the majority of the people who remained loyal during the Civil War controlled all three branches of the national government.  The Republicans responsible for the Second Freedmen’s Bureau Bill and the post-Civil War Constitution believed destitution and dependency were forms of slavery that the national legislature was constitutionally obligated to alleviate under the Thirteenth Amendment.    Once we understand the Republican commitment to economic rights and the way in which the constitution promoted those rights, we can see how the Constitution of 1868 in many ways was better structured to place economic inequality and dependency at the core of American constitutionality than the judicially driven constitutionalism of the present.