In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . .  what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Graber’s argument, which has also been made in the literature, is not persuasive.  In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.

Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue. 

One problem with this argument is that the Freedmen’s Bureau Act was passed before the 14th Amendment provision imposing equality on the states was enacted and would not in any case, as federal legislation, have been subject to the Amendment’s equality requirements. Thus, the connections between the Act and the Amendment are relatively weak. But even assuming that the Act does reflect the Congress’s view of the 14th Amendment, the modern Republicans can easily defend the constitutionality of the Freedmen’s Bureau Act.

Under the view of justices such as Scalia and Roberts, one can pass laws that provide benefits to individuals of one race if that law remedies previous violations of those individual’s rights. The Freedmen’s Bureau Act did exactly that, providing benefits to people who had been slaves and had suffered significant harms to their human capital and ability to integrate into society. These laws were exactly the type of laws that Justices Scalia and Roberts defend.

The Freedmen’s Bureau Act stands in contrast to modern affirmative action, which does not identify a class of individuals based on behavior. Instead, it selects a group based on race and then confers benefits on that group. Thus, under modern affirmative action, well-off blacks will usually receive benefits but poor whites may not.

Graber’s criticism of the modern Republicans thus turns out to be mistaken. The similarities that he sees between the modern Republicans and the Southern Democrats are apparent, not real. I don’t think it makes sense to attempt to compare modern attitudes with those at the time of the 14th Amendment. But if one were to force a comparison between modern politics and those of Reconstruction, one could more easily argue that it is the modern Democrats who resemble the Southern Democrats.

The Southern Democrats favored race-based legislation, focusing on asserted group characteristics rather than those of individuals. Affirmative action largely has this character. I am not suggesting that affirmative action is the moral equivalent of the heinous policies advocated by the Southern Democrats. But if one is going to make a historical comparison, the fact that the Southern and modern Democrats both make race-based argument is quite significant.