The Pre-Affirmative Action Era
A Historical Review Of Affirmative Action And The Interpretation Of Its Legislative Intent By The Supreme Court, Carl E. Brody, Jr., 29 Akron L. Rev. 291-334, 293-301 (1996). Copyright (C) 1996 by the Akron Law Review; Carl E. Brody, Jr.
"It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul."
The first major piece of civil rights legislation in the United States, the Thirteenth Amendment, was enacted to abolish slavery. This amendment was the first proactive advancement in race relations in the history of this country, and was designed to end the virulent racism that had always been present. President Lincoln's Emancipation Proclamation not only liberated the slaves in the Confederacy, but allowed slavery to continue in unincorporated areas. Therefore, it was necessary to alter the Constitution in order to put an end to slavery in all parts of the country.
The Freedmen's Bureau Bills
The Thirteenth Amendment, while liberating former slaves, did not solve the problem of racism directed toward newly-freed slaves by their fellow citizens, nor did it address the problem of assimilating the newly-freed slaves into white society. As a result, Congress proposed the 1864 Freedmen's Bureau Bill with the specific intent to provide special assistance to the newly freed slaves. This legislation specifically designated African-Americans as the beneficiaries of programs meant to assist in the transition from slavery. Proponents of the bill argued that it was necessary in order to atone for the past discrimination visited against the former slaves. They also argued that the provision of race specific benefits would allow the former slaves to become self-sufficient, and would prevent them from becoming wards of the nation. Thus, as is the case today, proponents of race conscious measures advanced the ideology that providing measures to assist those who have been and are presently discriminated against benefits the nation as a whole, because these members of society will be able to contribute to the community, and will not exist as liabilities to the nation.
Opponents of the Freedmen's Bureau Bill employed arguments very similar to those who oppose affirmative action today. Their main argument questioned the logic of promulgating legislation that was specifically intended to benefit only African-Americans. The opponents considered it unfair that impoverished white citizens would not benefit from this bill. Here lies the origin of the notion that legislation should apply to all citizens equally, and that ours should be a "colorblind society." This argument glosses over past and present inequities in favor of a system that allows the continuation of those inequities.
The final version of the bill did not pass until 1865, when it was amended in order to include white refugees as beneficiaries. In practice, though, the majority of the benefits went to freedmen. Therefore, by the end of the Civil War, the nation had taken its first, halting steps to provide special assistance to remedy past discrimination. The constitutionality of providing such programs to one racial group exclusively was still an open question, but the Freedmen's Bureau Bills nevertheless acknowledged the race of the individuals entitled to receipt of the benefits of the programs.
The Fourteenth Amendment
The Fourteenth Amendment was enacted primarily to guarantee the constitutionality of the race conscious measures established in the Freedmen's Bureau Acts, which were subsequently affirmed through the Civil Rights Act of 1866, and to address the problems of racism during the post Civil War period. In fact, Congress debated the Fourteenth Amendment and the 1866 Freedmen's Bureau Bill simultaneously. This historical fact illustrates that the two provisions are inseparable. The reasoning behind one is also the reasoning behind the other. In the case of both, the protection of the equal rights of African-Americans was of primary focus. The Fourteenth Amendment was meant to validate race conscious policies found in the Civil Rights Act of 1866 and the Freedmen's Bureau Act of 1866. Amending the Constitution became necessary because of President Johnson's decision to veto the original versions of the 1866 Freedmen's Bureau Act and the Civil Rights Act of 1866. In both cases, the President made classic conservative arguments. Johnson claimed that providing special provisions to former slaves while not providing the same provisions for unfortunate whites was unfair. In his veto of the 1866 Civil Rights Act, President Johnson explained that, in his mind, the distinction between race in the bill would benefit African-Americans while unfairly disadvantaging whites. This rhetoric is very similar to the race baiting tactics currently employed by many of those arguing against present day affirmative action programs, where whites are thought of as being pitted against African- Americans. Both the Freedmen's Bureau and Civil Rights Act of 1866 were meant to provide the newly freed slaves with some opportunity to become viable members of the society. Achieving this goal necessarily required measures that applied directly to the group that had been wronged for the previous three centuries. Yet when Congress attempted to enact such a remedy, those against providing assistance to the downtrodden determined that the one characteristic that caused the former slaves to be enslaved, i.e., the color of their skin, could not now be used to thwart efforts to ameliorate the condition of ex-slaves. In the twisted, conservative logic, assisting African-Americans might unfairly injure white citizens.
In contrast, proponents of the 1866 Acts supported race conscious measures because such action directly assisted those who had been discriminated against. The proponents openly acknowledged race as a factor and felt that because it had been a factor in the enslavement and continued discrimination against the ex-slaves, it could now be taken into account in fashioning a remedy for nearly 300 years of inequality. Therefore, Congress overrode President Johnson's veto of the Civil Rights Act of 1866, and subsequently passed a new Freedmen's Bureau Bill that was even more race specific than the previously vetoed Freedmen's Bureau legislation. Johnson also vetoed the 1866 Freedmen's Bureau Act, but once again his veto was subsequently overridden.
The Fourteenth Amendment was enacted by the Congress during the same debates and discussions concerning the effective provision of remedies for past and present discrimination for former slaves. Therefore, the Amendment must be analyzed in this context, which acknowledges the effects of discrimination on African-Americans, and must be recognized as being designed to guarantee the constitutionality of race conscious measures employed to improve their situation.
In 1875, the Supreme Court began to retreat from assisting Congressional efforts to assimilate African-Americans into post-civil war society. The Civil Rights Act of 1875 was enacted to provide African-Americans with equal access to public accommodations, including inns, public consequences, theaters, and "other places of public amusement." By its terms, the Act applied to private individuals, and made violations criminal misdemeanors. Several white owners of private hotels, theaters, and railroads had policies excluding African-Americans, and were indicted under the Act. They challenged the Act as an invalid exercise of Congress' enforcement powers pursuant to the Thirteenth and Fourteenth Amendments. In a case that came to be known simply as the Civil Rights Cases, the Supreme Court consolidated the challenges for resolution of the issues presented.
The Court first rejected the government's contention that the Civil Rights Act of 1875 could be promulgated under Congress's enforcement power in Section Five of the Fourteenth Amendment. The court noted that the Fourteenth Amendment only applied to state action, and could not be used to regulate private conduct. Thus, the court held that Congress had no power to prevent private theater owners, innkeepers, and railroad operators from discriminating against African-Americans.
Second, the Court rejected the proposition that Section 2 of the Thirteenth Amendment gave Congress the power to enact the Civil Rights Act of 1875. Although the Court acknowledged that the Thirteenth Amendment not only abolished slavery, but also prohibited the imposition of any "badges or incidents of slavery," the Court determined that private policies of discrimination against African-Americans did not amount to imposing a "badge or incident" of slavery on them. In so holding, the Court reiterated the notion that Congress should make no attempt to enact race- conscious laws, and that ours should be a "colorblind" society: When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected.
In his lengthy dissent, Justice Harlan argued that the majority failed to acknowledge the intent of the framers of the Thirteenth Amendment to eliminate all "burdens and disabilities which constitute badges of slavery and servitude." Harlan considered overt, private acts of discrimination to be such "badges of slavery." Harlan also argued that the Fourteenth Amendment was enacted to secure and protect the rights of African-Americans as citizens of this country, and that the Amendment vested in them a right of exemption from race discrimination. Harlan explained that the framers of the Fourteenth Amendment intended to confer upon Congress the power to redress "the great danger to the equal enjoyment by [African-American] citizens of their rights, as citizens, ... [posed], not altogether [by] unfriendly state legislation, but [also] [by] the hostile actions of corporations and individuals in the states."
Justice Harlan thus examined, and would have implemented, the true intent of the Thirteenth and Fourteenth Amendments to provide special legal protections for African-American citizens. The modern-day Supreme Court could learn from Justice Harlan's example, and should have likewise respected the original intent of the Fourteenth Amendment in analyzing the constitutionality of affirmative action programs.
The New Deal Era Laws
During the Great Depression, economic hardship and massive unemployment forced the government to provide programs to assist the citizenry. The Roosevelt Administration implemented many laws for this purpose, and included in them prohibitions against racial discrimination. These New Deal laws required employers to be inclusive in their employment practices, and constituted the first attempt to do so since the era of "separate but equal" legislation introduced during the 19th Century. Indeed, the Public Works Administration, which was created pursuant to the National Industrial Recovery Act, provided for quotas in employment in order to assure employment inclusiveness. President Roosevelt also issued the first executive order prohibiting employment discrimination based on race. By the end of the New Deal Era, the government had made its first attempt since Reconstruction to eliminate discrimination. Though the group meant to be protected was not specified, it is obvious from the surrounding circumstances that such legislation was meant to address discrimination against African-American and other minority citizens, because these were the individuals being discriminated against. These programs were specifically meant to provide equality in employment opportunity and encouraged employers to be more inclusive in providing employment. Therefore, these requirements provided the ground work for future programs to eliminate employment discrimination.
The Pre-Affirmative Action Era