Here is the text of the 14th amendment (abridged to include only clauses 1&5):
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
In his Bloomberg article, Sunstein states:
Justices Scalia and Thomas, the court’s leading “originalists,” have consistently argued that the Constitution requires colorblindness. But neither of them has devoted so much as a paragraph to the original understanding. As conservative Ramesh Ponnuru, liberal Adam Winkler and others have suggested, their silence is especially puzzling because for decades, well-known historical work has strongly suggested that when passed by Congress in 1866 and ratified by the states in 1868, the 14th Amendment did not compel colorblindness.
Perhaps the most important evidence is the Freedmen’s Bureau Act of 1866, which specifically authorized the use of federal funds to provide educational and other benefits to African-Americans. Opponents of the act (including President Andrew Johnson) explicitly objected to the violation of colorblindness, in the form of special treatment along racial lines. In fact, much of the congressional debate involved colorblindness. Along with many others, Representative Ignatius Donnelly of Minnesota gave what the strong majority of Congress saw as a decisive response: “We have liberated four million slaves in the South. It is proposed by some that we stop right here and do nothing more. Such a course would be a cruel mockery.”
As law professor Eric Schnapper has shown, the 1866 Freedmen’s Bureau Act was one of several race-conscious measures enacted in the same period during which the nation ratified the 14th Amendment — which is now being invoked to challenge affirmative action. If Congress enacted race-conscious measures in the same year that it passed that amendment, and just two years before the nation ratified it, we should ask: Isn’t it clear that the 14th Amendment doesn’t require colorblindness?
Let’s go over some history about what was going on in the US at the time the Freedmen’s Bureau Act was passed 1866 so we can get some idea of the context in which these, the passage of the Act and the 14th Amendment occurred.
First, all of the former Confederate States were under territorial governance and martial law after the end of the Civil War. They were no longer considered States after their governments were declared invalid under Article IV Section 4 in 1865, and were under direct jurisdiction of Congress. Part of the rationale for this was that they could not be representative governments due to sizeable portions of the male populations in each State not having the right of suffrage. Many of these States were not allowed Congressional representation until 1874, nearly a decade after the end of the war. They had no say in the matter of the Freedman’s Bureau, and ratification of the 14th Amendment was required for re-admittance to the Union.
When the Freedmen’s Bureau was enacted 1866, it was attached to the Department of War and under control of the military for purposes of helping to transition former slaves into a life of freedom in the context of martial law so they could be protected and aided at the same time; exactly because of the view quoted by Mr. Sunstine:
“We have liberated four million slaves in the South. It is proposed by some that we stop right here and do nothing more. Such a course would be a cruel mockery.”
It is misleading to connect the Freedmen’s Bureau Act with the passage of the 14th amendment as if they occurred in the same context. It was part of an evolution of military accommodation of former slaves, legislative recognition of accommodation provided by Executive Order since the Emancipation Proclamation. It was, however, not meant to be a permanent measure as well as the need for martial law. The 14th Amendment was intended to override the Dred Scott decision of 1857 in which the Supreme Court declared that blacks are not and can never be citizens of the United States, and was not intended to provide authority to Congress for the Freedmen’s Bureau. It was for the purposes of providing the freedmen with all the rights that come with citizenship, voting rights in particular; hence, the requirement to include provision for the 15th amendment (passed in 1868 and ratified in 1870) in new State Constitutions in addition to ratification of the 14th amendment for a State to be readmitted to the Union and provided with Congressional representation.
For Mr. Sunstien to be considered genuine about the meaning of the 14th amendment, he should discuss what took place after the Supreme Court ruled in 1876 that the military could no longer be utilized to enforce civil rights laws (United States v. Cruikshank) – effectively nullifying the 14th and 15th amendments as a result of the same sort of the judicial constitutional interpretation fiat Sunstein advocates when he says:
Liberals have tended to reject originalism. They contend that the Constitution establishes broad principles whose specific meaning changes over time and that must, in the words of the influential legal theorist Ronald Dworkin, be given a “moral reading.”
United States v. Cruikshank was a landmark case that when viewed with 21st century eyes, paints a portrait of injustice in several ways. The decision let the perpetrators in the Colfax Massacre, mass murderers of dozens of freedmen, go without punishment. It eviscerated the plain meaning of the equal protection clause, invalidating every single congressional effort to provide support to former slaves by denying Congress and the Executive branch the means by which to enforce its laws when that power is explicitly given in the final clause of the amendment. Following the decision, Southern States were free to enact Black Codes and Jim Crow laws, and neglect the security of polling places so that blacks could be denied the vote by violence and intimidation.
Now, we are to assume that the Supreme Court is somehow more enlightened and more liberal, in the classic sense of the word, and it is more important now to rely on its wisdom to tell us what the Constitution means in the context of reality today. Isn’t that the same tortured logic from 1876? Yes, I think it is.
My suggestion is that the 14th Amendment means exactly what it says, for the protection it and every other Article or Amendment provides is only as good as contemporary interpretation any other way. I am very sorry that Mr. Sunstein doesn’t agree with the plain meaning of the text, and instead wishes to use it as means to enforce reverse discrimination while having it both ways when it comes to enforcement of the Voting rights Act of 1964. There is nothing in that amendment that provides the means to pick and choose who is bestowed with special privileges, nor is there any special rights given based on race. It does not provide a basis for racial distinction, and therefore does require colorblindness with the sweeping inclusion of “any person under jurisdiction”.
PS: For further reading on the meaning of post Civil War civil rights Acts and Amendments, some good resources are:
The Day Freedom Died by Charles Lane