Wednesday, May 18, 2022

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*9 B. The History Of The Fourteenth Amendment Demonstrates That The Drafters Intended It To Permit Race-Specific Measures.

The Congress that authored the Fourteenth Amendment recognized that race-conscious governmental policies were not only permissible but clearly necessary to redress the economic and social devastation that for centuries had been visited upon African Americans. Preceding the ratification of the Amendment in 1868, Congress enacted a series of race-specific social welfare laws for blacks, and legislation which, though facially race neutral, was clearly intended to benefit blacks. These measures were required to ameliorate the effects of the “Black Codes” that were adopted by southern states to tyrannize and oppress African Americans.

There is significant evidence that a major reason for the adoption of the Fourteenth Amendment was to ensure constitutional support for the race-conscious legislation passed by Congress. Such legislation embraced a variety of race-specific programs targeted for blacks. Congress enacted laws appropriating funds for “the relief of destitute colored women and children,” for “colored” persons in the District of Columbia, and for black Union soldiers. The Freedmen's Bureau Acts adopted by the Reconstruction Congress also authorized relief for blacks, including “provisions, clothing, and fuel” and the sale of up to forty acres for refugees and freedmen. *11 Schnapper, supra n.18, at 760. Later legislation reauthorizing the Freedmen's Bureau provided more explicit protection and aid for free blacks, id. at 772-73, while limiting the Bureau's authority to aid white refugees, id. at 772.

This legislative history illustrates that the drafters - who considered and squarely rejected opposition to Freedmen's Bureau legislation on the grounds that such statutes excluded whites - could not have intended to bar race-specific measures under the Fourteenth Amendment. This is confirmed by early decisions of this Court, which recognized that the “one pervading purpose” of the Reconstruction Amendments was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” 

 

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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