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01/12/2016

David Gans on Originalism and Affirmative Action
Michael Ramsey

At Balkinization, David Gans (Constitutional Accountability Center): Blind to History.  From the introduction: 

This week, the U.S. Treasury Department renamed the Treasury Annex in Washington, D.C. the Freedman’s Bank Building, commemorating the 150thanniversary of the Freedman’s Savings and Trust Company, a federal bank created during Reconstruction to benefit the newly freed slaves and their descendants.  The Freedman’s Bank Act was one of many race-conscious federal statutes passed, contemporaneous with the Fourteenth Amendment, to foster equal opportunities and help realize the Fourteenth Amendment’s promise of equal protection of the laws for all persons.  The Framers of the Fourteenth Amendment understood that race-conscious measures were necessary to fulfill the promise of equality contained in the Fourteenth Amendment.   Today, however, conservatives bent on eliminating affirmative action in education are turning a blind eye to this history. 

The post goes on to criticize this article by Paul Moreno (Hillsdale College -- Constitutional History) and this post by Mike Rappaport, both taking the opposing view.  As to the latter, he writes:

In the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment.  (The Supreme Court has said as much repeatedly.)  In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons. Supporters of the Fourteenth Amendment argued that sometimes taking race into account was necessary to fulfill that goal and made no differentiation between state and federal law in this regard, and they repeatedly won this debate in legislative battles.

Nor was the race-conscious legislation enacted by the Framers of the Fourteenth Amendment strictly remedial as Rappaport suggests.  The acts passed contemporaneous with the Fourteenth Amendment were not limited to the former slaves or the goals of redressing badges of slavery or other government-sponsored racial oppression.  Rather—like modern race-conscious admissions programs and other policies that use race to foster equality—the race-conscious measures enacted by the Framers of the Fourteenth Amendment were forward-looking in design, seeking to fulfill the promise of equality contained in the Fourteenth Amendment.  The Freedman’s Bank celebrated this week is a perfect example, ensuring that freed slaves and their descendants would have a place to keep their money, enabling them, as Frederick Douglass put it, “to rise in the world.”