November 17, 2005
Whose “Original Intent” Is It Anyway? Posted by Joshua Zeitz at 12:10 PM EST Earlier this week the release of a 1985 memorandum drafted by Judge Samuel Alito caused a good measure of partisan uproar. Predictably, Alito’s opposition to abortion rights has drawn the most partisan fire he’s gotten, on both the left and the right. Equally interesting, however, and equally illuminating, is Alito’s assertion that “racial and ethnic quotas should not be allowed” under the Constitution. Assuming for a moment that, like other conservative jurists, Alito based his claim on the “original intent” of the Constitution’s framers, his argument is certainly open to constructive debate. Whether one believes that racial quotas and set-asides constitute good public policy, there is a credible case to be made that the Constitution allows for them. When Republicans in the Reconstruction-era Congress drafted the Fourteenth Amendment, in 1866, they did so to make permanent the protections they had extended to former slaves in the Freedmen’s Bureau bill and the Civil Rights Bill of 1866, twin measures that Congress had passed earlier in the year over the veto of President Andrew Johnson. Those measures were meant to abrogate so-called Black Codes that Southern states had passed, one after the other, in late 1865, measures that denied freedmen property rights; the right to contract; the right to bear arms; the right to move about freely; the right to assemble, to hold political meetings, and to participate in public debates; the right to jury trials and due process. In short, the South was attempting to restore slavery in all but name, and the Republican Congress was determined to see that this didn’t happen. The Freedmen’s Bureau and Civil Rights bills endeavored to extend to freedmen most of the protections that citizens of the United States enjoyed under the Bill of Rights. The Fourteenth Amendment federalized these rights—that is, it applied the Bill of Rights to the states (it had heretofore applied only to the federal government)—and safeguarded them against future tampering by conservative legislators and Presidents. Despite initial legal setbacks in the late nineteenth century, a host of Court decisions from the 1920s onward confirmed this legal history of the Fourteenth Amendment by “incorporating” piece by piece most parts of the Bill of Rights and applying them to the states. Return to 1866. The same Republican Congress that passed the Fourteenth Amendment—which stipulates that “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”—also passed the Freedmen’s Bureau bill. Among its other provisions, that initiative distributed to former slaves small parcels of federal land, mostly land that had been abandoned by former slaveowners or land that was already held in the public trust. It also provided for schools that catered specifically to former slaves, and for special courts to resolve labor and criminal disputes between former slaves and their former masters. In other words, latter-day conservatives who argue for a strict, race-neutral reading of the Fourteenth Amendment ignore a critical point. Its framers were originators of affirmative action. They believed that certain classes of people—in this case, former slaves—deserved preferential government entitlement and special government protections to redress past grievances and to promote a more equal and harmonious society. If we embrace the idea of “original intent,” a doctrine that binds the law to history, we must acknowledge that the framers of the Fourteenth Amendment were comfortable with what later generations would alternatively label “set-asides” and “quotas.”
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