John Roberts's Refusal to Defend Federal Statutes
krooseve at law.upenn.edu
Thu Sep 8 10:37:44 PDT 2005
In Affirmative Action, 107 Yale L.J. 427 (1997), Jed Rubenfeld writes:
In July 1866, the Thirty-Ninth Congress--the selfsame Congress that
had just framed the Fourteenth Amendment--passed a statute appropriating
money for certain poor women and children. [FN15] Which ones? The act
appropriated money for "the relief of destitute colored women and
children." [FN16] In 1867, the Fortieth Congress--the same body that was
driving the Fourteenth Amendment down the throat of the bloody
South--passed a statute providing *431 money for the destitute in the
District of Columbia. [FN17] (And remember that Congress is the
constitutional analogue of a state legislature for the District of
Columbia.) What classification did Congress adopt in this poor-relief
statute? Relief was to be given to the destitute "colored" persons in
the nation's capital. [FN18] Year after year in the Civil War period--
before, during, and after ratification of the Fourteenth
Amendment--Congress made special appropriations and adopted special
procedures for awarding bounty and prize money to the "colored" soldiers
and sailors of the Union Army. [FN19]
These statutes are not like the well-known Freedmen's Bureau Acts
[FN20] of the same period, [FN21] directing benefits to blacks but using
classifications that were formally race-neutral. [FN22] On the contrary,
these statutes expressly refer to color in the allotment of federal
benefits. Nor are these statutes buried in archives deep within the
Library of Congress. They are, if not well-known, at least knowable by
anyone who takes three minutes with the United States Statutes at Large
(look up "colored" in the indexes for more). [FN23] What do they prove?
Only that those who profess fealty to the "original understanding," who
*432 abhor judicial "activism," or who hold that the legal practices at
the time of enactment "say what they say" and dictate future
interpretation, [FN24] cannot categorically condemn color-based
distribution of governmental benefits as they do.
[FN15]. See Act of July 28, 1866, ch. 296, 14 Stat. 310.
[FN16]. Id., 14 Stat. at 317 (emphasis added). The act appropriated
money for the "National association for the relief of destitute colored
women and children," id., an association incorporated by federal statute
three years earlier "for the purpose of supporting... aged or indigent
and destitute colored women and children." Act of Feb. 14, 1863, ch. 33,
12 Stat. 650, 650.
[FN17]. See Resolution of Mar. 16, 1867, No. 4, 15 Stat. 20.
[FN18]. Id., 15 Stat. at 20 (emphasis added).
[FN19]. E.g., Act of Mar. 3, 1873, ch. 227, 17 Stat. 510, 528 (emphasis
added); Act of Mar. 3, 1869, ch. 122, 15 Stat. 301, 302 (emphasis
added); Resolution of June 15, 1866, No. 46, 14 Stat. 357, 358-59
[FN20]. Act of July 16, 1866, ch. 200, 14 Stat. 173; Act of Mar. 3,
1865, ch. 90, 13 Stat. 507.
[FN21]. For originalist arguments in favor of affirmative action on the
basis of the Freedmen's Bureau Acts, see Louis H. Pollak, "Mr. Chief
Justice; May It Please the Court:", in Constitutional Government in
America 247, 252 (Ronald K.L. Collins ed., 1980); and Eric Schnapper,
Affirmative Action and the Legislative History of the Fourteenth
Amendment, 71 Va. L. Rev. 753 (1985).
[FN22]. See Charles Fried, Metro Broadcasting, Inc. v. FCC: Two Concepts
of Equality, 104 Harv. L. Rev. 107, 111 n.21 (1990) ("[R]eference to the
Reconstruction-era Freedmen's Bureaus... is not quite apposite: they no
more accorded benefits in terms of race than did the Emancipation
[FN23]. Schnapper cited a number of these statutes over 10 years ago.
See Schnapper, supra note 21, at 775, 778-80. Unfortunately, his
references to these laws appear in the middle of a much lengthier
discussion of the Freedmen's Bureau Acts as race-conscious legislation.
See id. at 754-75, 780- 83. As a result, some concluded that Schnapper's
essay was "convincingly rebutted" by those who pointed out that the
Freedmen's Bureau Acts, at least after 1865, purposefully employed
race-neutral language. Jeffrey Rosen, The Color-Blind Court, 45 Am. U.
L. Rev. 791, 795 (1996) (citing, for example, Paul Moreno, Racial
Classifications and Reconstruction Legislation, 61 J.S. Hist. 271
(1995)). But while the Freedmen's Bureau Acts were arguably race-
neutral, the statutes referred to in the text above were not. And these
statutes convincingly rebut even the most tortuously phrased conclusions
of those who deny the existence of race-based affirmative action in the
Reconstruction period: "It is not unreasonable to conclude... that the
Reconstruction Congress might have allowed race-conscious remedial
legislation with preference for blacks, since it permitted the
anti-black variety [!]. But in fact it did not...." Paul D. Moreno, From
Direct Action to Affirmative Action 11 (1997) (emphasis in original). In
fact, the Reconstruction Congress enacted just such legislation, and it
did so repeatedly. That Congress also passed non-color-based remedial
legislation in this era, such as the Freedmen's Bureau Acts, or
provisions for the relief of all destitute persons in the District of
Columbia, see, e.g., Resolution of Apr. 17, 1866, No. 25, 14 Stat. 347,
353, does not alter this fact. A full list of "race-conscious remedial
legislation" of the period would also include the many federal grants of
aid to Indians, which represented race- or blood-based remedial
legislation on an enormous scale. See, e.g., Resolution of Dec. 21,
1865, No. 1, 14 Stat. 347, 347 (authorizing the expenditure of $500,000
"for the immediate subsistence and clothing of destitute Indians"). It
would also be proper to add the special allocations of federal resources
for "colored schools." See, e.g., Act of July 28, 1866, ch. 308, 14
Stat. 310, 343 (donating federally owned land in the District of
Columbia "for the sole use of schools for colored children").
RJLipkin at aol.com wrote:
> In a message dated 9/8/2005 11:03:12 AM Eastern Standard Time,
> crossf at mail.utexas.edu writes:
> Cass Sunstein took Thomas to task on this issue. He
> said that it was clear at the time of the 14th Amendment that
> action was legitimate and that the contemporary Congress adopted
> affirmative action programs.
> I've always been curious about this claim. Wasn't affirmative
> action at the time of the 14th Amendment applicable to newly freed
> slaves? If so, AA was operative for actual victims of racism. Justice
> Scalia and Thomas approve of race consciousness in that type of case.
> So just how was affirmative action operative at the time of the 14th?
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
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