November 18, 2005
Re: Original Intent Posted by John Steele Gordon at 03:10 PM EST Joshua Zeitz writes a good brief in support of the constitutionality of affirmative action in “Whose ‘Original Intent’ Is It Anyway?” below. I would like to make a few points, however. It should be noted who, after the Civil War, passed the Fourteenth Amendment and the legislation Mr. Zeitz refers to. It was the Republican Party. There’s a reason blacks voted Republican until FDR came along, and this is it. It was also Republicans in Congress who made the Civil Rights victories of the 1950s and ’60s possible. Most of the Congressional opposition to civil rights legislation, in both the mid-nineteenth and mid-twentieth centuries, came from Democrats. The modern-day liberal establishment would like that to go down the memory hole, and it shouldn’t. Mr. Zeitz writes that “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.” True enough. But the provisions of the Freedman’s Bureau Act favored a particular group of people in a particular time and place. That is to say former slaves in the defeated South. Blacks who had been born free, I believe, were not eligible. In other words, the affirmative action was not race-based but former-status-based, and thus limited in duration. Who was eligible was precisely defined (whereas race is a notoriously slippery concept—ask Sally Hemings’s children), and time made sure that the favored group would pass from the scene. These provisions, therefore, strike me as much more analogous to modern-day legislation making victims of natural disasters eligible for federal help than modern-day affirmative action, which is aimed at a vague group of people for a vague amount of time for vague reasons. The fact that the Republicans wrote specific benefits for former slaves into ordinary legislation is not, ipso facto, evidence that they intended all and any remedies of a somewhat similar nature be sanctioned by fundamental law that happened to pass in the same period. Had they intended that, they needed only to say so in the language of the amendment. I am by no means sufficiently familiar with the debates regarding the Fourteenth Amendment in the House and Senate. They might well make it clear what the framers of the Amendment intended.
As for whether affirmative action is good public policy, let me just say that the ostensible goal of almost everybody in this country (or at least everybody I’d care to find myself in the same room with) is to see the end of discrimination on the basis of race, to reach a point where being black or white is of no more moment than being left-handed or right-handed, blue-eyed or brown-eyed. We are not quite there yet, but we have made enormous strides just in my lifetime. (When I was born, in 1944, the highest ranking black in the U.S. Navy waited on tables. Today we have had two black secretaries of state in a row—appointed by a Republican president, please note.) Given the history of this country, that is a very, very remarkable fact. I think today affirmative action helps perpetuates discrimination on the basis of race, not end it. It keeps the issue of race alive in American politics. It seems to me self-evident that you cannot end discrimination on the basis of race by . . . discriminating on the basis of race, anymore than you can cure alcoholism with a martini. I would favor affirmative action programs that are based on economic status, not race. Family income can be precisely quantified; race is often a state of mind. And such programs, because blacks and Hispanics are disproportionately represented among lower-income families, would automatically disproportionately favor them. But most important, such programs would help get the poison of race out of American politics, and thus out of the body politic.
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