Gold and Freedom is an ambitious account of Southern Reconstruction after the Civil War interwoven with national currency and tariff policy. Nicolas Barreyre, Associate Professor at the École des Hautes Études en Sciences Sociales, views Reconstruction as a reordering of the American republic that exceeded in scope the constitutional-legal problem of restoring the former Confederate states to the Union. According to Barreyre, the Southern project called for a redefinition of the American nation, citizenship, the relationship of the people to the body politic, and “the economic model and the type of social relations on which it depended.” In short, “it is…
At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment. Gans makes two points:
First, he claims that 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.
Gans point here is problematic. It is true that during these debates, people often argued about equality. But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement. It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government.
In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:
Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.
For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . . what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.
Graber’s argument, which has also been made in the literature, is not persuasive. In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.
Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue.
Lincoln died 150 years ago today. Some time ago, I visited a jeweler’s shop in Northern Virginia and noticed that all the wall clocks were set at 7:22. The shopkeeper had done this because that was the time of the morning on April 15, 1865 when Lincoln expired.
People honored, and honor, his memory for having saved the Union but also for what he might have done to bind up the nation’s wounds after the war was over. For during the war Lincoln had developed an approach that had the best chance of meeting the challenge of Reconstruction, what he called “the most difficult question of practical statesmanship.”
Lewis Harvie Blair remains one of the most curious and frustrating figures of post-Reconstruction Virginia. Blair, called by historian Charles E. Wynes one of the forgotten voices of opposition to segregation, distinguished himself by exposing the failure of “New South” industrial development and illustrating the economic benefits of racial integration. The Richmond businessman and writer held that the only way to rebuild industry in the South was to integrate all public-facing facilities and schools, invest in the education of workers, and reinstate the protection of African Americans’ civil rights.
In a pending case, Schuette v. Coalition to Defend Affirmative Action, the Supreme Court faces the claim that the Fourteenth Amendment prohibits Michigan and every other state from including, within its constitution, a prohibition on any state racial discrimination, even if such discrimination might favor a racial minority. Several briefs, including a brief filed by 76 professional historians, present evidence allegedly supporting this contention.