In my post last week on Justice Jackson’s confused argument about the Civil Rights Act of 1866 and the 14th Amendment, I acknowledged that the “proposition that the 14th Amendment requires that the government be color-blind is open to challenge.” In this post, I will address the more coherent challenge that Jackson might have made.
At the outset, though, in light of all the uncritical acclaim that Jackson’s lengthy argument has received from the Left, I will note that liberal law professors Michael Dorf and Julian Davis Mortenson have very gently noted that it was inapt of Jackson to invoke the Civil Rights Act of 1866. As Dorf puts it:
To be sure, Justice Jackson did not refer specifically to the [race-conscious] programs [law professor Eric] Schnapper identified in his [1985] article. Her principal example of a contemporaneous statute was the Civil Rights Act of 1866, which does not contain specifically race-based remedies (although its references to the Freedmen’s Bureau hint at Congress’s acceptance of such remedies). [Emphasis added.]
Dorf and Mortenson nonetheless credit Jackson for signaling a broader argument that has been commonplace among liberal scholars. As Dorf sums up that argument: “The framers of the Reconstruction Amendments did not think they were forbidding race-based remedies for racial subordination because they contemporaneously adopted such race-based remedies.”
In a law-review article in 2013 titled “Originalism and the Colorblind Constitution,” law professor Michael B. Rappaport disputed the conventional liberal wisdom that had developed on this point. I’m going to summarize Rappaport’s counterarguments here—arguments that, so far as I’m aware, reciters of the conventional liberal wisdom have not seriously engaged with. I’ll also note that the originalist brief submitted on behalf of former Attorney General Edwin Meese III in the Harvard and UNC racial-preferences cases reflects and draws on Rappaport’s article (and that both that brief and Rappaport’s article present an affirmative originalist case for a colorblind reading of the 14th Amendment).
Here are three key points that Rappaport makes:
1. On the supposedly “race-based” statutes enacted by the Congress that proposed the 14th Amendment:
[T]here is no strong evidence for concluding that six of these seven laws confer race-based benefits. The two most important of these laws—the Freedmen’s Bureau Acts— did not provide such benefits, but instead conferred non-race-based benefits to victims of slavery [as well as to refugees, “a term that would appear to have been intended mainly to cover whites”]. Moreover, four of the five other laws that do explicitly refer to blacks do not, upon closer examination, constitute strong evidence of race-based laws—either because they are not best interpreted as providing benefits to blacks on racial grounds or because they can be reasonably interpreted as providing non-race-based benefits. The fifth of the other laws, however, does appear to provide race-based benefits, at least under one of the versions of strict scrutiny employed by the originalist Justices, but may do so on considerably narrower grounds than the critics suggest.
As to the last of these laws, Rappaport observes: “But even if this statute fails the full colorblindness test, it would be much narrower than the antisubordination view held by many of the critics, which generally allows harm to whites so long as it benefits blacks.”
2. There were also “federal laws passed at the time of the Fourteenth Amendment that harmed minorities…. If the laws that benefit blacks inform the meaning of the Amendment, then so should these laws. But if both sets of laws inform the meaning of the Amendment, then it would have a peculiar meaning. It would seem to allow a large variety of laws that can either harm or benefit blacks and other minorities.”
3. “[T]here is very little reason to believe” that any of these federal laws actually “inform the meaning of the Fourteenth Amendment”:
The basic argument is that the Congress that passed these laws understood that the Fourteenth Amendment did not apply to the federal government and, therefore, we cannot assume that Congress was conforming its laws to the Amendment. In fact, the federal government was purposefully excluded from the Amendment and there are good reasons for believing that the Congress was taking advantage of the flexibility that the Amendment allowed it to pursue public policy in the various circumstances confronting it at the time.
Applying Rappaport’s analysis to the racial preferences at issue in the Harvard and UNC cases, I would observe that even if originalist evidence allows states to adopt some race-based measures in some circumstances, it is difficult to see how it would allow the use of massive racial preferences that discriminate against Asian Americans and that favor not just African Americans who are the descendants of American slaves but also more recent immigrants and foreign blacks, some of whom may well be the descendants of African slaveholders. (Of course, the Court has upheld racial preferences in state college admissions on the ground of a supposedly compelling interest in educational diversity, not on an antisubordination rationale.)