Fourteenth Amendment & colorblindness

[Volokh, Eugene]

Stephen:  Is your sense that these laws were constitutional because they
were seen as benefiting blacks?  Or that a government practice that, for
instance, charged blacks more for passports -- or excluded them from
certain government contracts or government jobs -- would have been seen
as equally constitutional?  Thanks,

Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Stephen Siegel
> Sent: Monday, June 04, 2007 10:41 PM
> To: DavidEBernstein at aol.com
> Cc: CONLAWPROF at lists.ucla.edu
> Subject: Re: Fourteenth Amendment & colorblindness
> 
> In response to David's observations about the Freemen's 
> Bureau, I have a shamless plus:  In my article, The Federal 
> Government's Power to Enact Color Conscious Laws: An 
> Originalist Inquiry, 92 Northwestern L.
> Rev. 477, 559-60 (1998) I argue pros and cons of considering 
> the Freedmen's Bureau Act a color-conscious law and conclude 
> in favor of color-consciousness.
> It's unnecessary to repeat the argument here because the 
> Freedmen's Bureau was just a warm up for a fair number of 
> express race-conscious preferences for, to use Congress's 
> term, "colored" soldiers and citizens.
> Id.
> 
> One example, though it is somewhat outside the most relevant time
> period:  In 1878, Congress directed the secretary of state to 
> waive passport fees for "any colored citizen of the United 
> States who may wish to go to Brazil to engage in work upon 
> the Madera and Mamore Railway." See An Act authorizing the 
> issue of passports free to colored citizens going to Brazil, 
> ch. 74, 20 Stat. 40 (1878). Putting aside the mixed motives 
> that may have engendered this statute, the passport fee 
> waivers were a benefit not given to white citizens.
> 
> I did not study state laws generally.  But I did look at 
> Illinois.  There I found an 1874 Illinois law entitled "An 
> Act to protect colored children in their rights to attend 
> public schools."  This statute imposed a twenty-five dollar 
> fine on "[a]ny person who shall, by threats, menace or 
> intimidation, prevent any colored child entitled to attend a 
> public school in this state from attending such school." It 
> remained in force until 1889 when a general revision of the 
> state's school code broadened the provision to protect "any child.
> 
> Stephen Siegel
> DePaul University College of Law
> 
> 
> 
> On Mon, 4 Jun 2007 DavidEBernstein at aol.com wrote:
> 
> >
> > I'm a bit skeptical that one can leap from laws that by their terms 
> > help "freedmen" to the idea of "color consciousness."  The 
> text of the  
> > Freedmen's Bureau doesn't designate by race.
> >
> > _http://www.history.umd.edu/Freedmen/fbact.htm_
> > (http://www.history.umd.edu/Freedmen/fbact.htm)
> >
> > Obviously, all freedmen were of African descent, but not 
> all persons 
> > of African descent (say, those living in Vermont for 
> generations) were  freedmen.
> >
> > I agree that it's a failing by Scalia and Thomas that they don't 
> > provide a detailed originalist justification for their 
> views on Equal  
> > Protection.  But I should think that if there was strong 
> language out 
> > there  for the contrary position, the more liberal justices 
> would have raised it.
> >
> >  5:  they were smart enough to understand that equal protection  of 
> > the
> > > law might in fact require color conscious legislation to 
> create a  
> > > nation where equality was possible.
> >
> >
> >
> >
> >
> >
> > ************************************** See what's free at 
> http://www.aol.com.
> >
> 
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