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Gans on Reconstruction and Affirmative Action

At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment.  Gans makes two points:

First, he claims that 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.

Gans point here is problematic.  It is true that during these debates, people often argued about equality.  But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement.  It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government. 

Gans suggests that the Due Process Clause protected equality, but originalist scholarship does not support this claim.  Ryan Williams, who argues that Due Process protects equality, only claims that it does so as to states, not as to the federal government.  And Nathan Chapman and Michael McConnell contend that neither Due Process Clause protects equality, instead simply prohibiting actions taken against very small numbers of people.

Here is Gans’s second point:

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.”

I disagree with Gans again.  The most conspicuous and important of the federal statutes passed at the time was the Freedmen’s Bureau Act, which is the law I discussed in my post.  That statute was focused on former slaves.  While the Act may have been motivated by the concern to integrate the former slaves into American society, that does not change the fact that the benefits it provided were conferred on former slaves and thus conformed to a principle of colorblindness.

It is true that the Congress passed other statutes at the time and some of them may not have been limited to former slaves.  I discuss these statutes in an article, where I attempt to show that at most a few of these (minor) statutes represent a narrow exception to the colorblindness view adopted by the Supreme Court originalists.  But even if those statutes did constitute an exception, those statutes are unlikely to reflect the Congress’s view of the 14th Amendment, because once again the federal government was not subject to the equality requirements of the Amendment.

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