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Originalism in the Journals: Jed Rubenfeld on Affirmative Action
Mike Rappaport

Today starts a new feature at the Originalism Blog: Originalism in the Journals.  This will involve a discussion not of new originalist articles, but of old ones that have previously been published.

I came across this 1997 Yale Law Journal article by Yale Law Professor Jed Rubenfeld recently.  Only a portion of it is devoted to originalism, but that portion is very weak.  Perhaps it is sign of progress in the understanding of originalism (even among nonoriginalists) that I don’t think it would be published this way today.

Rubenfeld believes that he has made a great discovery – one that suggests that affirmative action cannot be unconstitutional as an original matter.  And he wants to play gotcha with the conservative originalists on the Court.  The article has that tone.  The problem is that he has not gotten anyone. 

Rubenfeld argues

Although it is a matter of public record, most lawyers and judges are unaware that Congress in the 1860s repeatedly enacted statutes allocating special benefits to blacks on the express basis of race (and I am not referring to the well-known Freedmen's Bureau Acts, [FN2] which did not rely on express racial classifications). Accordingly, to be true to their principles, two of the five Justices in the prevailing anti-affirmative action majority-- Justices Scalia and Thomas, whose commitment to original understandings and practices is also a matter of record--should drop their categorical opposition to race-based affirmative action measures.

Having set forth his position, Rubenfeld lays out his evidence:

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. Which ones? The act appropriated money for “the relief of destitute colored women and children.”  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 money for the destitute in the District of Columbia.  (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. 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.

But this is silly.  It is true that Congress did enact statutes allocating special benefits to blacks on the express basis of race.  But this does not show that section 1 of the 14th Amendment, including the Equal Protection Clause, does not forbid special benefits on the basis of race.  Rubenfeld has forgotten something very elementary: Section  1 of the 14th Amendment forbids states from denying anyone equal protection of the laws.  That section does not apply to the federal government.

Oops.  Rubenfeld might have forgotten this because so much of modern law is nontextual and ignores this basic fact.  In fact, some originalists forget it.  But it is clearly in the 14th Amendment.

Why did Congress not forbid discrimination by the federal government when it proposed the 14th Amendment?  Hard to know for sure.  Perhaps it did so because it wanted to confer special benefits to blacks in the near future.  Perhaps it did not want to impose limits of the federal government generally.  Perhaps it believed that only the states, given their history, could not be trusted with this power.   

Rubenfeld is right about one thing.  The Congress that proposed the 14th Amendment did not oppose color conscious statutes passed by the federal government.  But that says nothing about what they intended, or what the 14th Amendment meant, for the states.   

There is a lot more that could be discussed here: Subjects such as the enumerated powers for these statutes, the effect on precedent such Bolling v. Sharpe, etc. But the basic point remains. 

Rubenfeld concludes his first section:

I am no originalist, so I cannot regard the practices of Congress in the 1860s as dispositive of affirmative action's constitutionality. In fact, nearly no one today is a true equal protection originalist, because true equal protection originalism would repudiate Brown v. Board of Education. [FN25] Hence the point is not to foreclose argument by citing old statutes. It is to begin the argument with a little more candor. The colorblind contingent must begin by recognizing that they are calling on courts to render the kind of judgment about justice (beyond the letter of the law, beyond original intent) that elsewhere they deplore.

I would say that Rubenfeld owes “the colorblind contingent” some amendments to his article.  It is he who "must begin to recognize" that his accusation was seriously deficient.

Update: I fixed a typo in the post in response to an e mail. 


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I think more significant is the fact the 39th Congress found all the segregation laws of former rebel states to be in compliance with the 14A before readmitting them as states. Bingham had assured Rutherford Hays that Ohio's segregation laws did not comer under the 14A.

Affirmative action really isn't a federal question nor does it come under the 14A.

Bob, do you have a cite for this or an article that discusses it?

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