This week, the U.S. Treasury Department renamed the Treasury Annex in Washington, D.C. the Freedman’s Bank Building, commemorating the 150th anniversary 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. 

Earlier this week, in an op-ed published in the Washington Times, Professor Paul Moreno argues that “affirmative action has no basis in the 14th amendment,” criticizing the brief that Constitutional Accountability Center filed in Fisher v. University of Texas on behalf of some of the nation’s leading constitutional law scholars, including Professors Bruce Ackerman, Jack Balkin, Burt Neuborne, James Ryan, Eric Schnapper, and Adam Winkler, as bad, revisionist history. Much of Moreno’s piece does not even address the facts, preferring instead to attack civil rights advocates from Brown v. Board of Education on for misrepresenting Reconstruction history. It is understandable why Moreno refuses to engage with the argument set out in the brief: the basic facts of Fourteenth Amendment history show that the Framers of the Fourteenth Amendment were the originators of affirmative action.

When Moreno does get around to examining Fourteenth Amendment history, he falters badly. Moreno makes much of the fact that the Freedman’s Bureau gave benefits both to the newly freed slaves and to refugees, whose lives had been devastated by the Civil War. But Moreno studiously ignores the fact that the Freedman’s Bureau Act gave different benefits to freed slaves and refugees, leading opponents of Reconstruction to claim that the Act made blacks “superior” rather than “equal before the law,” and thus was “in opposition to the plain spirit” of the Constitution.

The Freedman’s Bureau Act did not stand alone. During Reconstruction, Congress enacted numerous other forward-looking race-conscious measures as well, broadly extending assistance to African Americans, whether or not they had been slaves. Congress in 1865 established a bank just for freed slaves and “their descendants”—the Act celebrated in the renaming ceremony this week in Washington. In 1866, Congress appropriated funds to help “destitute colored women and children.” And in 1867, Congress also enacted race-based legislation to protect the bounty and prize-money due to African American soldiers who had served in the Union Army, even as similar protections were denied to white soldiers. Once again, opponents argued against such laws because they didn’t satisfy what they said was the Constitution’s demand of colorblindness. “[T]here is no reason… we should pass a law such as this applicable to colored people and not apply it to white people,” insisted Senator James Wilson Grimes of Iowa. Moreno does not even mention this history, let alone try to deal with it.

In a more serious vein, over at the Originalism Blog, Professor Mike Rappaport argues that the Freedman’s Bureau Act does not support the constitutionality of modern race-conscious affirmative action programs. First, Rappaport asserts that the Fourteenth Amendment is a limit on the actions of state government, not Congress, and thus federal statutes, like the Freedman’s Bureau Act, were not subject to the Fourteenth Amendment’s equality requirement. Second, Rappaport claims that the Freedman’s Bureau was remedial in nature, designed to redress slavery, and thus would satisfy strict scrutiny as modern Court precedent requires. This fares no better. 

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.” 

Reasonable people can disagree about how to apply, nearly a century and a half later, the Fourteenth Amendment’s guarantee of the equal protection of the laws in light of the Framers’ repeated approval of affirmative action programs. But the right answer cannot be to marginalize what the Americans who wrote and ratified the Fourteenth Amendment actually did. And what they did was enact race-conscious measures, both before and after the proposal of the Fourteenth Amendment, to realize the Fourteenth Amendment’s guarantee of equal protection of the laws.

This piece is cross-posted at Balkinization.