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.

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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.