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Originalism and Affirmative Action Part II: The Weakness of The Critics’ Argument

In my last post, I started to discuss the arguments made by various academics who maintain that the original meaning of the Constitution clearly allows affirmative action. Their arguments are based on a set of federal statutes passed at the time of the 14th Amendment that are said to have provided race based benefits to blacks. In this post, I want to explain why I argue these statutes are weak evidence in favor of affirmative action.

There are two basic reasons why this evidence is weak. First, these statutes are federal statutes and therefore not subject to the 14th Amendment. Second, the statutes relied upon by the critics are not good evidence of race based action.

Let me start with the fact that the statutes are federal statutes. The Equal Protection Clause and the Privileges or Immunities Clause (the two provisions that might impose equality requirements) only applied to the states, not to the federal government. Thus, when Congress passed these laws there is no reason to believe that it was interpreting or implementing the 14th Amendment, because the Amendment did not apply to the federal government.

The critics reply that it is unlikely that a Congress that enacted the 14th Amendment would have violated the principles in that amendment when passing federal statutes. This seems like a potentially strong argument at first, but not upon examination. This argument assumes that the same rules ought to apply to the states and the federal government. But clearly the enactors of the 14th Amendment did not believe that, since they did not apply the Amendment to the federal government.

Understanding Congress’s actions in this area requires offering an explanation for why the 14th Amendment was applied to the states, but not to the federal government.  In my view, the Amendment was applied to the states, but not the federal government, based on two considerations.  First, Congress needed a strict limitation on the states to stop racially discriminatory actions, but did not need one as to the federal government, because the latter was thought to be more trustworthy regarding the treatment of minorities.  Second, there was not full agreement on the content of the equality requirement.  While people were willing to compromise on that requirement as to the states, because of the need for a constitutional restriction on the states, they did not feel the same need to compromise as to the federal government.  Under this view, then, the fact that Congress might have passed laws that benefited (or harmed) blacks would not be indicative of the meaning of the 14th Amendment, because the Amendment neither applied to the federal government nor was intended to do so.

The second reason the critics’ evidence is weak is that the statutes they offer (apart from being federal statutes) are not in the main race based.  Some of the statutes are simply not best interpreted as involving race based benefits.  For example, Congress passed the Freedmen’s Bureau Acts, which provided benefits to former slaves and war refugees.  While the critics view these statutes as providing race based benefits to blacks, that is a weak interpretation.  The benefits are not provided to blacks, but to former slaves (and refugees who could be white).  As a first take, this is not a racial category, since some blacks were free.  Of course, the overlap between race and former slaves is close, so we would want to examine the law closely to make sure it is not a subterfuge secretly intended to provide benefits on racial grounds.  But there are good reasons for providing benefits to former slaves that have nothing to do with race.  Such slaves were freed with no physical or human capital and therefore providing them with benefits was necessary to  allow them to become independent citizens.

The critics also point to a few other federal statutes.  Some of these statutes are clearly not race based.  A few are hard to interpret – they may or may not be race based – but that indicates that they are not strong evidence of race based action, since they might not be race based.  Finally, one or two statutes are likely to involve some race based measures, but these statutes rely on race in a considerably narrower way than does modern affirmative action.

Overall, then, one or two narrow statutes – that involve the federal government – are pretty weak evidence that the 14th Amendment allows race based statutes. The question, though, is whether there is evidence that the 14th Amendment prohibits affirmative action. In my last post on this matter, I will turn to this question.

Reader Discussion

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on May 15, 2013 at 10:46:07 am

Solid analysis of the Freedman's Act and other post-bellum laws. Keep in mind as well the original Privileges and Immunities clause. In the radical abolitionist reading, it would of course demand freedom for slaves who enter free states. One might argue that the passage of the Reconstruction Amendments altered the meaning of the original P and I clause to allow something like this. A similar argument might be raised about 5th Amendment due process, used by CJ Taney to strike down, retroactively, the Missouri Compromise. I think these provisions strengthen your color-blind argument. (Consider Harlan's Plessy dissent in this light.)
Also, does your reading of the Constitution then permit Congress to enact affirmative action legislation? If not, what role does the Declaration of Independence play in that argument. Thanks for this stimulating application of originalism to the Reconstruction Amendments.

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Ken Masugi
on May 15, 2013 at 11:03:03 am

I just responded to your question about Justice Thomas and the Declaration in Part I of your postings, which I just now saw:

'In his concurring opinion in Aadarand--sorry, I just saw this. in other opinions (Kelo) he speaks about natural rights. "That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness")."'

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Ken Masugi
on May 15, 2013 at 14:08:09 pm

Even Justice Thomas has refrained from expressly invoking nature as a source of law or right. See pp. 41-47 of this piece on the Taft Court, where I discuss my survey of the Supreme Court's use of natural law and natural right in the 20th century. The Taft Court conspicuously abandoned natural-law jurisprudence and the Court has never really returned.
http://lawandreligion.com/sites/lawandreligion.com/files/Upham%20F12.pdf

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David Upham
on May 15, 2013 at 14:12:58 pm

As to governmental services, I think the best, or least bad, argument against any racial discrimination relies on the Privileges or Immunities Clause. One of the traditional privileges of citizenship--in both Roman and English law-- was an exemption from special taxes--the taxes, like aliens' duties, that could be imposed on foreigners. An immunity against racial taxes was thus one of the privileges or citizenship. Racial discrimination in taxpayer-funded governmental programs arguably represents an indirect racial tax, and is thus unconstitutional. It's not a slamdunk, I admit.

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David Upham

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