Members Only | November 4, 2022 | Reading Time: 4 minutes
Yeah, no, Reconstruction laws were actually race conscious
Critics of affirmative action want you to believe that laws meant to protect Black people weren’t meant to protect Black people.
Conservatives are so obsessed with the concept of originalism they continue to twist history in order to pretend their nonsense legal agendas are in line with what the “founders” of the country or the Fourteenth Amendment actually wanted. The latest historical victim of ahistorical legal ramblings is the entirety of Reconstruction legislation in order to claim affirmative action is unconstitutional.
The Supreme Court heard oral arguments in the latest attack on affirmative action in Students for Fair Admissions v. Harvard during which attorney Cameron Norris, for Students for Fair Admissions, the group challenging Harvard’s policy, argued that the legislation passed following the Civil War to address the harms of slavery was not about race and that none of the legislation passed was race conscious (as opposed to race neutral). Buckle in for an angry history lesson to understand just how bizarre that claim truly is.
The Civil War was explicitly about slavery and the US had worked very hard to ensure slavery and Blackness had a strong correlation.
Legally, one could not be enslaved in the US if one was not of African descent. Indigenous people initially could be enslaved, but by the early 1800s, Native Americans were deemed legally free.
Even free Black people were often presumed to be enslaved if they could not prove they were free. Enslavement was not race neutral. Legislation to address slavery was very much not race neutral.
After the Civil War the Thirteenth, Fourteenth, and Fifteenth Amendments were passed not only to ensure the end of slavery but to move toward a racially integrated society with at least nominal guarantees of racial equality.
We have decades of jurisprudence showing the intent of the Fourteenth Amendment was specifically to address the racist harm of slavery, which I’ll get to in a minute.
But the plain text of the Fifteenth Amendment addresses race explicitly by ensuring that no one’s vote shall be denied or abridged on “account of race, color, or previous condition of servitude.”
While the language in the Fourteenth Amendment doesn’t mention race specifically, the earlier Civil Rights Act of 1866 does.
It states that all citizens should have the same rights as “enjoyed by white citizens.” Not only does such a statement clearly mention race, but it also acknowledges that race has been a determining factor in a hierarchy of access to citizenship rights until 1866.
The act excludes “Indians” from birthright citizenship, supposedly because they don’t pay taxes, but again, it includes racial distinctions.
Finally, the act specifies that everyone, “of every race and color,” born in the US, except “Indians,” has birthright citizenship.
The language seems pretty race conscious to me.
Even Andrew Johnson said that he vetoed the act (Congress overrode his veto) because the protections in it supposedly “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” (emphasis mine)
I think his claims that the act pits races against each other or provides special protection to Black people is nonsense. Point is, at the time no one thought this legislation was race neutral.
In 1872, the purview and intent of the Fourteenth Amendment was tested in the Slaughterhouse Cases. In the Slaughterhouse Cases, butchers of New Orleans were mad at laws passed that created a monopoly on slaughterhouses in order to protect the water supply from contamination. Butchers of the city sued under the Fourteenth Amendment claiming that their civil rights were violated. The Supreme Court rejected this claim and in the majority opinion Justice Miller wrote that the Reconstruction Amendments were meant to protect the “the freedom of the slave race … and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”
During oral arguments Cameron Norris, for Students for Fair Admissions, the group challenging Harvard’s policy, made the argument that Reconstruction legislation was meant to address harm based on status of former slaves – not based on race.
Not only is this argument historically incoherent as race and the status of slavery were deeply intertwined, but it ignores that Reconstruction legislation also addressed previous discrimination against free Black people.
Before the Civil War, plenty of free states had racially discriminatory laws that barred free Black people from voting, testifying in court against a white person or even having the freedom to exist without needing to constantly prove they were free.
Such discrimination was explicitly based on race, not slave status.
Norris also claimed the Fourteenth Amendment was originally intended as a ban on all racial classifications, somehow ignoring the legality of segregation and anti-miscegenation laws.
He does describe Plessy v. Ferguson as the Supreme Court “going off the rails,” but it’s not clear what he means by that.
He asserts that another case, Strauder v. West Virginia, banned all racial classification concerning jury selection, but he completely misstates the opinion. Strauder ruled that one could not be denied jury service based on race, but it argued that doing so would violate the rights of a possible Black defendant by denying him a jury of his peers – explicitly acknowledging the relevance of race.
Additionally, the court said that the purpose of the Equal Protection Clause was “to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons.”
Originalist arguments will always be silly to me, but if you’re going to apply them at least get the history right. Reconstruction legislation and subsequent case law are all race conscious. They validate the acknowledgment of race when seeking remedy to racial harm.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.