Fourteenth Amendment & colorblindness
VOLOKH at law.ucla.edu
Mon Jun 4 23:06:47 PDT 2007
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,
> -----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.
> 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
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