Aug 24, 2012

Posted in Originalism, Right Time, Uncategorized

The Reconstruction Congresses and Race-Conscious Measures

Most opponents of race-conscious measures, such as affirmative action, rally around Justice Harlan’s dissent in Plessy v. Ferguson, calling for a “color-blind” Constitution. I have written at some length about Harlan’s views on race. However, was Harlan’s view consistent with the Framer’s of the 14th Amendment?

The Constitutional Accountability Center has filed an amicus brief in Fisher v. Texas arguing that Harlan’s view is not consonant with how the Reconstruction Congress viewed race conscious measures.

Citing the Freedmen’s Bureau Act and other laws enacted by the Reconstruction Congress to help break down barriers for both freed-slaves and freedmen, the CAC contends that race conscious measures are consistent with the Fourteenth Amendment’s text and history:

Far from establishing a constitutional ban on the use of race by the government, the Framers of the Fourteenth Amendment rejected proposals to prohibit all racial classifications by the government. Indeed, the Reconstruction Congress enacted a long list of race-conscious legislation to ensure equality of opportunity to all persons regardless of race. These acts were not limited to the former slaves or the goal of redressing badges of slavery or other race-based government action; rather, like UT-Austin’s use of race under review here, the race-conscious measures enacted by the Framers of the Fourteenth Amendment were forward-looking in design, seeking to ensure equality of opportunity for African Americans and fulfill the promise of equality contained in the Fourteenth Amendment.

At the heart of these race-conscious government measures were federal efforts to ensure equality of educational opportunity for African Americans. Recognizing the importance of providing pathways to leadership and professional life for African Americans, the federal government established schools and colleges throughout the South, making it possible for African Americans to realize the full potential of the freedom secured by the Civil War Amendments. The Framers also provided chaplains to assist in the education of African American soldiers. The Reconstruction Framers thus recognized that in certain contexts it was permissible to use race – indeed, to classify on account of race – to help ensure that educational opportunities were available to all regardless of race. Fisher’s contrary view – that UT-Austin may take into account every sort of diversity except for racial diversity – would turn the Fourteenth Amendment on its head.

The notion that, in all circumstances, the Constitution must be color-blind, prohibiting all race-conscious assistance, is inconsistent with “the history, meaning, and reach of the Equal Protection Clause.”

I find many of their arguments somewhat persuasive. I don’t think that I’ve ever heard an originalist argument suggesting that race conscious measures are not consistent with the practices of the framers of the Fourteenth Amendment. Now, of course, different types of originalist arguments may cut different ways (original meaning, original expected applications, etc.). My point is simply that I never thought about how many race-conscious measures those who enacted the Fourteenth Amendment used. If I am missing something, please let me know.

David Bernstein finds a couple distinctions that I do not find too persuasive.

First, the brief only focuses on federal legislation, rather than state legislation. The states were bound by an equal protection clause (or at least bound in 1868 upon the ratification of the 14th Amendment, which came after many of these reconstruction-era laws), while the federal government was not (cf. Bolling v. Sharpe). As David suggests, it would be incongruous to hold the feds and the states to different standards. I would add that Justice Alito’s plurality opinion in McDonald v. Chicago rejected this model with respect to incorporated rights. I gather it would apply equally to the equally protection clause.

Should we act surprised that South Carolina or Georgia, following the Civil War, failed to enact race-conscious measures to help freedmen? I think that absence of state legislation in the South explains itself. The more egalitarian Union states, which did not have slavery (perhaps Maryland and Kentucky excepted), would not have had the need for such race-conscious measures. The only party that would seem to have the need to pass these laws would be the federal government. Anyway, this distinction doesn’t do much fo rme.

David’s second argument reads the history of the 14th Amendment narrowly, such that race-conscious measures would only apply to African-Americans–the original recipients of race-conscious measures during reconstruction. From a purely jurisprudential perspective, this reading is too cramped for me. With this reading, if we understand the Fourteenth Amendment’s equal protection clause to only apply to race, it would not cover classifications based on religion. Further, Justice Scalia would be right, and Justice Ginsburg would be wrong–the equal protection would not protect classifications based on gender.

When I get a moment, I will dig through some of the amici supporting Fisher that focus on the text and history of the Reconstruction Amendments.

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  • Steve Rappoport

    I will address this paragraph:

    “David’s second argument reads the history of the 14th Amendment
    narrowly, such that race-conscious measures would only apply to
    African-Americans–the original recipients of race-conscious measures
    during reconstruction. From a purely jurisprudential perspective, this
    reading is too cramped for me. With this reading, if we understand the
    Fourteenth Amendment’s equal protection clause to only apply to race, it
    would not cover classifications based on religion. Further, Justice
    Scalia would be right, and Justice Ginsburg would be wrong–the equal
    protection would not protect classifications based on gender.”

    The equal protection clause does not refer to any category of coverage. It simply states that no state shall “deny to any person within its jurisdiction the equal protection of the law.” As I have pointed out before, Susan B. Anthony used this clause to obtain a ballot with which to commit the crime of suffrage.

    We know why the clause was added to the Constitution; it was to protect the newly freed slaves from the depredations of the former slave-holding states. But the clause is not written in those terms. Rather than indicate who are its beneficiaries, it is a general provision of equality. Its words cover anyone who can make a case that he is being treated differently from others who are similarly situated without a proper justification. (The clause says “equal protection,” not “equality,” which suggests that the goal is the application of the same standards, not necessarily the same outcomes.)

    As it is clear that Justice Scalia’s argument is not supported by the language that Congress used, it is even more clear that David Bernstein’s argument does not fly either. Whatever may be argued that Congress intended (and certainly the impetus for taking action came from reports of mistreatment of the former slaves), Congress used the broadest possible language in crafting the clause. I think that “any person” is an indication of its scope; notice that there is no qualifier of any sort other than the person be within the jurisdiction of the particular state.

    History can be a guide to interpreting language, but the bogus history that is put forth to limit the equal protection clause rips away at the plain meaning of the words that Congress chose. Professors and jurists who embrace that history have a lot to answer for.

    I wish that Michael Kent Curtis’ No State Shall Abridge had a wider readership.

  • Steve Rappoport

    I will address this paragraph:

    “David’s second argument reads the history of the 14th Amendment
    narrowly, such that race-conscious measures would only apply to
    African-Americans–the original recipients of race-conscious measures
    during reconstruction. From a purely jurisprudential perspective, this
    reading is too cramped for me. With this reading, if we understand the
    Fourteenth Amendment’s equal protection clause to only apply to race, it
    would not cover classifications based on religion. Further, Justice
    Scalia would be right, and Justice Ginsburg would be wrong–the equal
    protection would not protect classifications based on gender.”

    The equal protection clause does not refer to any category of coverage. It simply states that no state shall “deny to any person within its jurisdiction the equal protection of the law.” As I have pointed out before, Susan B. Anthony used this clause to obtain a ballot with which to commit the crime of suffrage.

    We know why the clause was added to the Constitution; it was to protect the newly freed slaves from the depredations of the former slave-holding states. But the clause is not written in those terms. Rather than indicate who are its beneficiaries, it is a general provision of equality. Its words cover anyone who can make a case that he is being treated differently from others who are similarly situated without a proper justification. (The clause says “equal protection,” not “equality,” which suggests that the goal is the application of the same standards, not necessarily the same outcomes.)

    As it is clear that Justice Scalia’s argument is not supported by the language that Congress used, it is even more clear that David Bernstein’s argument does not fly either. Whatever may be argued that Congress intended (and certainly the impetus for taking action came from reports of mistreatment of the former slaves), Congress used the broadest possible language in crafting the clause. I think that “any person” is an indication of its scope; notice that there is no qualifier of any sort other than the person be within the jurisdiction of the particular state.

    History can be a guide to interpreting language, but the bogus history that is put forth to limit the equal protection clause rips away at the plain meaning of the words that Congress chose. Professors and jurists who embrace that history have a lot to answer for.

    I wish that Michael Kent Curtis’ No State Shall Abridge had a wider readership.

  • Steve Rappoport

    I will address this paragraph:

    “David’s second argument reads the history of the 14th Amendment
    narrowly, such that race-conscious measures would only apply to
    African-Americans–the original recipients of race-conscious measures
    during reconstruction. From a purely jurisprudential perspective, this
    reading is too cramped for me. With this reading, if we understand the
    Fourteenth Amendment’s equal protection clause to only apply to race, it
    would not cover classifications based on religion. Further, Justice
    Scalia would be right, and Justice Ginsburg would be wrong–the equal
    protection would not protect classifications based on gender.”

    The equal protection clause does not refer to any category of coverage. It simply states that no state shall “deny to any person within its jurisdiction the equal protection of the law.” As I have pointed out before, Susan B. Anthony used this clause to obtain a ballot with which to commit the crime of suffrage.

    We know why the clause was added to the Constitution; it was to protect the newly freed slaves from the depredations of the former slave-holding states. But the clause is not written in those terms. Rather than indicate who are its beneficiaries, it is a general provision of equality. Its words cover anyone who can make a case that he is being treated differently from others who are similarly situated without a proper justification. (The clause says “equal protection,” not “equality,” which suggests that the goal is the application of the same standards, not necessarily the same outcomes.)

    As it is clear that Justice Scalia’s argument is not supported by the language that Congress used, it is even more clear that David Bernstein’s argument does not fly either. Whatever may be argued that Congress intended (and certainly the impetus for taking action came from reports of mistreatment of the former slaves), Congress used the broadest possible language in crafting the clause. I think that “any person” is an indication of its scope; notice that there is no qualifier of any sort other than the person be within the jurisdiction of the particular state.

    History can be a guide to interpreting language, but the bogus history that is put forth to limit the equal protection clause rips away at the plain meaning of the words that Congress chose. Professors and jurists who embrace that history have a lot to answer for.

    I wish that Michael Kent Curtis’ No State Shall Abridge had a wider readership.

  • Steve Rappoport

    I will address this paragraph:

    “David’s second argument reads the history of the 14th Amendment
    narrowly, such that race-conscious measures would only apply to
    African-Americans–the original recipients of race-conscious measures
    during reconstruction. From a purely jurisprudential perspective, this
    reading is too cramped for me. With this reading, if we understand the
    Fourteenth Amendment’s equal protection clause to only apply to race, it
    would not cover classifications based on religion. Further, Justice
    Scalia would be right, and Justice Ginsburg would be wrong–the equal
    protection would not protect classifications based on gender.”

    The equal protection clause does not refer to any category of coverage. It simply states that no state shall “deny to any person within its jurisdiction the equal protection of the law.” As I have pointed out before, Susan B. Anthony used this clause to obtain a ballot with which to commit the crime of suffrage.

    We know why the clause was added to the Constitution; it was to protect the newly freed slaves from the depredations of the former slave-holding states. But the clause is not written in those terms. Rather than indicate who are its beneficiaries, it is a general provision of equality. Its words cover anyone who can make a case that he is being treated differently from others who are similarly situated without a proper justification. (The clause says “equal protection,” not “equality,” which suggests that the goal is the application of the same standards, not necessarily the same outcomes.)

    As it is clear that Justice Scalia’s argument is not supported by the language that Congress used, it is even more clear that David Bernstein’s argument does not fly either. Whatever may be argued that Congress intended (and certainly the impetus for taking action came from reports of mistreatment of the former slaves), Congress used the broadest possible language in crafting the clause. I think that “any person” is an indication of its scope; notice that there is no qualifier of any sort other than the person be within the jurisdiction of the particular state.

    History can be a guide to interpreting language, but the bogus history that is put forth to limit the equal protection clause rips away at the plain meaning of the words that Congress chose. Professors and jurists who embrace that history have a lot to answer for.

    I wish that Michael Kent Curtis’ No State Shall Abridge had a wider readership.

  • Steve Rappoport

    I will address this paragraph:

    “David’s second argument reads the history of the 14th Amendment
    narrowly, such that race-conscious measures would only apply to
    African-Americans–the original recipients of race-conscious measures
    during reconstruction. From a purely jurisprudential perspective, this
    reading is too cramped for me. With this reading, if we understand the
    Fourteenth Amendment’s equal protection clause to only apply to race, it
    would not cover classifications based on religion. Further, Justice
    Scalia would be right, and Justice Ginsburg would be wrong–the equal
    protection would not protect classifications based on gender.”

    The equal protection clause does not refer to any category of coverage. It simply states that no state shall “deny to any person within its jurisdiction the equal protection of the law.” As I have pointed out before, Susan B. Anthony used this clause to obtain a ballot with which to commit the crime of suffrage.

    We know why the clause was added to the Constitution; it was to protect the newly freed slaves from the depredations of the former slave-holding states. But the clause is not written in those terms. Rather than indicate who are its beneficiaries, it is a general provision of equality. Its words cover anyone who can make a case that he is being treated differently from others who are similarly situated without a proper justification. (The clause says “equal protection,” not “equality,” which suggests that the goal is the application of the same standards, not necessarily the same outcomes.)

    As it is clear that Justice Scalia’s argument is not supported by the language that Congress used, it is even more clear that David Bernstein’s argument does not fly either. Whatever may be argued that Congress intended (and certainly the impetus for taking action came from reports of mistreatment of the former slaves), Congress used the broadest possible language in crafting the clause. I think that “any person” is an indication of its scope; notice that there is no qualifier of any sort other than the person be within the jurisdiction of the particular state.

    History can be a guide to interpreting language, but the bogus history that is put forth to limit the equal protection clause rips away at the plain meaning of the words that Congress chose. Professors and jurists who embrace that history have a lot to answer for.

    I wish that Michael Kent Curtis’ No State Shall Abridge had a wider readership.

  • Steve Rappoport

    I will address this paragraph:

    “David’s second argument reads the history of the 14th Amendment
    narrowly, such that race-conscious measures would only apply to
    African-Americans–the original recipients of race-conscious measures
    during reconstruction. From a purely jurisprudential perspective, this
    reading is too cramped for me. With this reading, if we understand the
    Fourteenth Amendment’s equal protection clause to only apply to race, it
    would not cover classifications based on religion. Further, Justice
    Scalia would be right, and Justice Ginsburg would be wrong–the equal
    protection would not protect classifications based on gender.”

    The equal protection clause does not refer to any category of coverage. It simply states that no state shall “deny to any person within its jurisdiction the equal protection of the law.” As I have pointed out before, Susan B. Anthony used this clause to obtain a ballot with which to commit the crime of suffrage.

    We know why the clause was added to the Constitution; it was to protect the newly freed slaves from the depredations of the former slave-holding states. But the clause is not written in those terms. Rather than indicate who are its beneficiaries, it is a general provision of equality. Its words cover anyone who can make a case that he is being treated differently from others who are similarly situated without a proper justification. (The clause says “equal protection,” not “equality,” which suggests that the goal is the application of the same standards, not necessarily the same outcomes.)

    As it is clear that Justice Scalia’s argument is not supported by the language that Congress used, it is even more clear that David Bernstein’s argument does not fly either. Whatever may be argued that Congress intended (and certainly the impetus for taking action came from reports of mistreatment of the former slaves), Congress used the broadest possible language in crafting the clause. I think that “any person” is an indication of its scope; notice that there is no qualifier of any sort other than the person be within the jurisdiction of the particular state.

    History can be a guide to interpreting language, but the bogus history that is put forth to limit the equal protection clause rips away at the plain meaning of the words that Congress chose. Professors and jurists who embrace that history have a lot to answer for.

    I wish that Michael Kent Curtis’ No State Shall Abridge had a wider readership.

    • Steve Rappoport

      My discussion is incomplete. The Fourteenth Amendment was certainly
      aimed at keeping the states from continuing to harm the former slaves;
      it used the verb “deny,” which implied that the states were depriving
      people of something. But the equal protection clause can also be used to
      require equality of benefits (or at least equality of opportunity to
      benefits). The key words here are “equal protection.”

      As noted above, the phrase does not require equal treatment of everyone
      in all respects; rather, people who are being compared have to be
      similarly situated in relevant respects. People who do not have the same
      education, training, wealth, or anything else as compared to others are
      not similarly situated to those others. The clause entitles the states
      to take action to enable them to become equal (though not more than
      equal). The states are thus free to craft solutions for the
      inequalities that they identify, but I would think that a close fit
      between problem and solution would be required.

      • Steve Rappoport

        There is even more to discuss. When I wrote that “[t]he clause entitles the states to take action to enable [people] to become equal,” I was assuming that the issue was whether a state could constitutionally affirmatively take action to help some of the people within its jurisdiction. But the language of the amendment state that no state “shall … deny” the equal protection of the law. This language can be read quite easily as requiring the states to take measures to bring about equality. In other words, affirmative action can be said to be constitutionally required. If this is so, it raises an interesting question of enforcement. Can an unequal person sue a state to require it to provide a remedial program? (Would the Eleventh Amendment bar that lawsuit, or could Congress authorize it pursuant to Section 5 of the Fourteenth Amendment?)

        • Steve Rappoport

          If a state decides to address inequality in services or programs, how
          far can it go to achieve equal protection, and to what extent does it
          have the discretion to make the call as to where the line should be
          drawn between “enough” and “too far”? I think that it needs to focus hard on the “similarly situated” aspect of the issue.

          I am unhappy with the way the courts have mangled the various issues that come into play with programs that focus on groups. My position is still evolving, but all I will say right now is that I am skeptical that I will like what the Supreme Court comes up with no matter how it rules.

      • Steve Rappoport

        UPDATED COMMENT (JB):

        There is even more to discuss. When I wrote that “[t]he clause entitles the states to take action to enable [people] to become equal,” I was assuming that the issue was whether a state could constitutionally affirmatively take action to help some of the people within its jurisdiction. But the language of the amendment states that no state “shall … deny” the equal protection of the law. This language can be read quite easily as REQUIRING the states to take affirmative measures to bring about equality. In other words, affirmative action can be said to be constitutionally required. If this reading is correct, it raises an interesting question of enforcement if a state does not want to take such measures. Can an person who claims that he would be a beneficiary sue the state to require it to provide a remedial program to bring him up to par? Would the state be protected by a sovereign-immunity doctrine or by the Eleventh Amendment from having to respond to the lawsuit? Would Congress have to pass a law under its power in Section 5 of the Fourteenth Amendment to enact appropriate legislation to allow for private enforcement of the amendment? Would that law pass muster under City of Boerne v. Flores, 521 U.S. 507 (1997)? This is starting to get complicated.

        In the above comment, I wrote: “The clause entitles the states to take action to enable [people] to become equal.” I was thinking of a situation in which a state decides to engage in affirmative action to make people within its jurisdiction equal. But the language of the amendment states that no state “shall … deny” the equal protection of the law. This easily can be read as REQUIRING a state to engage in affirmative action to bring about equality.

        If that reading is correct, it raises an interesting question of enforcement in the event that a state does not want to do so. Can a person who claims that he would would be a beneficiary sue the state to require it to establish a program that would aim to bring him up to par? Would a state be protected by a sovereign-immunity doctrine or by the Eleventh Amendment from having to respond to the lawsuit? Would Congress have to pass a law under its power in Section 5 of the Fourteenth Amendment to enact appropriate legislation to enforce the amendment? Would that law pass muster under City of Boerne v. Flores, 521 U.S. 507 (1997)?

      • http://joshblackman.com/ Josh Blackman

        “But the equal protection clause can also be used to
        require equality of benefits (or at least equality of opportunity to
        benefits).”

        Why is this so? I buy your first comment from the text of the Constitution, but this does not follow. For this statement, I think you can hang your hat on the race-conscious measures cited in the CAC Brief. But if you start looking to what the Reconstruction Congresses thought, you then negate your first answer, and limit yourself to equal protection for freedmen. You seem to want to have it both ways.

        • Steve Rappoport

          Rereading my second comment, I now see that it does not support the sentence that you quote. Rather, the comment focused on what the amendment, as I see it, authorized the states to do.

          The quoted sentence is relevant only to the discussion in the updated third comment below. (The two comments below the updated comment were two versions of the same thought; the updated comment combines them, but I was unable to remove the two comments from this thread.)

    • http://joshblackman.com/ Josh Blackman

      Yes, and this raises a nice distinction between various jurisprudential schools of thought. Pure textualism, or maybe original public meaning origianlism, gives the 14th Amendment a wide ambit. Original intent, or maybe original public meaning originalism (read differently), gives it a much more narrow scope.

      • Steve Rappoport

        I certainly was not thinking in terms of these legalistic categories when I wrote that comment. Anyway, I have a basic problem with any interpretation that does not take the text seriously (i.e., that does not try to follow it). The text is the best evidence of what Congress as a whole meant. When you deviate from it, you either are rejecting what Congress meant, or you know better what it meant to say. Especially when Congress uses unqualified words to indicate coverage, what justification can there be for introducing limitations? An interpretation that violates the text seems to me to be illegitimate and should be ignored as much as possible.

        Moreover, a literal reading of the amendment does not violate history. Such a reading would encompass all of the people whom Bernstein thinks are the only proper beneficiaries of the amendment, as well as anyone else who falls within the ambit of “any person.” Is there any evidence that Congress did not want to give a constitutional right to people who had not been slaves? How could that evidence, if it somehow exists, compete with the language that Congress used?

  • http://profile.yahoo.com/Z5DQCE7YHKZZWEDZIZLDYUUW5M ninja

    Weren’t ex-slaves a class(ex-non citizen residents) rather than a race? There were free blacks in the north that didn’t get help by these acts.

    • http://joshblackman.com/ Josh Blackman

      That’s an interesting point. I hadn’t considered that. While the Amendments applied to everyone, the Reconstruction Acts were very particular in who they helped–freedmen, not blacks that were already free before the 13th Amendment. I suppose that may be viewed as a class under our modern parlance. Let me think that through more. Stealthy comment ninja.

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