John Roberts's Refusal to Defend Federal Statutes in MetroBroadcasting

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 
(emphasis added).

[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 
Proclamation.").

[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
>     affirmative
>     action was legitimate and that the contemporary Congress adopted
>     several
>     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?
>  
> Bobby
>  
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
> 
> 
> ------------------------------------------------------------------------
> 
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-- 
Kermit Roosevelt
Assistant Professor
University of Pennsylvania Law School
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