Professor Michael Rappaport of the University of San Diego School of Law has released a new article titled, “Originalism and the Colorblind Constitution.” The article’s strength lies in its rebuttal of arguments that the Fourteenth Amendment was never intended to ban race-based affirmative action policies. Some scholars — such as Cass Sunstein — argue against a colorblind Constitution because the Framers of that Amendment also passed race-conscious policies that were specifically designed to help black Americans. The argument asks, if the reconstruction Congress was so set against race-conscious policies when it crafted and debated the Fourteenth Amendment, why did it enact legislation that was race-conscious and designed to help black Americans? Rappaport’s new article provides the rebuttal; here are the highlights:
1. The Framers of the Fourteenth Amendment never intended it to apply to the federal government. Much like the Framers of the Bill of Rights were more concerned with an overreaching federal government, and designed a specific set of rights to restrain it, the Framers of the Fourteenth Amendment were more concerned with state governments, and designed that Amendment to prevent state abuses of individual rights. Accordingly, contemporary congressional legislation is a poor tool for determining the original meaning of the Fourteenth Amendment.
2. The contemporary congressional legislation purported to benefit people based on race is (mostly) colorblind upon closer inspection. Critics of the colorblind Constitution often cite to the Freedmen’s Bureau Acts as examples of race-based legislation that was passed by the same Congress that framed the Fourteenth Amendment. But as Rappaport makes clear, the Freedman’s Bureau Acts were designed to aid freed-men, i.e. former slaves, not individuals with a certain skin color. Designing laws to help individuals who suffered under state-sanctioned slavery, is nothing like designing laws to help individuals because of their race.
In addition to the Freedmen’s Bureau Acts, the article also goes through other legislation relied upon by the critics of a colorblind Constitution. Nearly all of those laws suffer from glaring defects. For example, critics point to a 1866 law that donated land in D.C. “for the sole use of schools for colored children.” But as Rappaport demonstrates, this law was an addendum to existing legislation that provided for “white” schools. Prior to 1862, D.C. prohibited the education of blacks. Thus, the 1866 law wasn’t providing affirmative action-like education funding for black children. To the contrary, it was providing funding for “separate-but-equal” schools. This leads us to the article’s next point.
3. What about the contemporary legislation that was harmful to people of color? Supporters of race-based affirmative action cite the Freedmen’s Bureau Acts and other legislation that appear to provide benefits to African-Americans, but they fail to account for congressional legislation that was harmful to non-whites. In addition to the statutes that called for segregated schools, there were laws that excluded blacks from the armed forces, and laws that prevented naturalization of the Chinese. If congressional enactments are supposed to inform the intent of the Fourteenth Amendment, these laws must also be part of the calculus. And if the critics did account for these laws, they would have an Equal Protection Clause that permitted race-based affirmative action, and also race-based discrimination.
These latter two points lend strong support to Rappaport’s first point: Section 1 of the Fourteenth Amendment was simply not intended to apply to Congress. Arguments against a colorblind Constitution that precede from the assumption that contemporary congressional legislation is persuasive evidence of the Amendment’s original meaning are severely flawed.
The discussion highlighted here was much needed scholarship on the meaning and weight of Congressional laws passed during the time the Fourteenth Amendment was debated and ratified. The remainder of Rappaport’s article makes the originalist case for a colorblind Fourteenth Amendment, and is also worth reading. The article has yet to be published, and still needs some editing, but I highly recommend it.