Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev. 753 (1985), https://digitalcommons.law.uw.edu/faculty-articles/304
Virginia Law Review
affirmative action, legislative history
This article contends that the legislative history of the fourteenth amendment is not only relevant to but dispositive of the legal dispute over the constitutional standards applicable to race-conscious affirmative action plans. From the closing days of the Civil War until the end of civilian Reconstruction some five years later, Congress adopted a series of social welfare programs whose benefits were expressly limited to blacks. These programs were generally open to all blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections that such racially exclusive measures were unfair to whites. The race-conscious Reconstruction programs were enacted concurrently with the fourteenth amendment and were supported by the same legislators who favored the constitutional guarantee of equal protection. This history strongly suggests that the framers of the amendment could not have intended it generally to prohibit affirmative action for blacks or other disadvantaged groups.
Part I of this article details the legislative history of eight Reconstruction measures establishing programs limited, in varying degrees, to blacks. The most important of these measures is the 1866 Freedmen's Bureau Act, which provoked the most detailed arguments for and against race-conscious programs, and which Congress considered and approved at the same time as the fourteenth amendment. Part II discusses the debates in Congress on the fourteenth amendment, and the relationship of those debates to the race-conscious programs of the Reconstruction era. Part III examines the constitutionality of present-day affirmative action in light of this legislative history.