November 21, 2005
How History Argues for Affirmative Action Posted by Joshua Zeitz at 10:30 AM EST Last week, I argued against a “strict constructionist” reading of the Fourteenth Amendment, an interpretation that holds that the framers of that amendment meant to enforce a race-neutral world in which no citizen could be the victim or beneficiary of race-based policies. As I explained in my post, the Republican majority that authored the amendment did so almost concurrently with another measure, the Freedmen’s Bureau bill, which provided for land grants to freed slaves. Thus, it is far from clear that the framers of the Fourteenth Amendment would have viewed affirmative action as a violation of constitutional principles. They were, in fact, enthusiastic practitioners of it. John Steele Gordon weighed in with some important comments. Mr. Gordon is exactly right that “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 . . . were not eligible.” I’d go a step further. The Freedmen’s Bureau Act also provided assistance to some destitute white farmers. I disagree, however, with Mr. Gordon’s next assertion, that the Freedmen’s Bureau bill was thus “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.” Slavery was not, of course, a natural disaster, and black Americans did not owe their postwar impoverishment to “vague reasons.” Slavery was an institution legalized, protected, and subsidized by the federal government, and it held only Africans and their descendents in bondage. Had they followed their own logic to its right conclusion, congressional Republicans might have extended the provisions of the Freedmen’s Bureau Act to former slaves and free black citizens alike, for both groups faced legal disabilities of some sort and could rightfully assert a claim to restitution. Apply this logic to current-day questions. Just as slavery was not a “natural disaster” owing to “vague reasons,” until very recently the federal government wrote race into its laws. Consider housing policy, for instance. The great postwar housing boom was largely subsidized by the federal government, through agencies like the FHA and the VA, which insured the vast portion of home mortgages, thus making them affordable to middle-income and working-class families. African-Americans were excluded. The government’s own regulations explicitly prohibited the FHA and VA from insuring mortgages for African-Americans or in areas where African-Americans lived. The reasons behind this exclusionary measure were circular: the government maintained that by virtue of their presence in a given neighborhood, black Americans forced a drop in property values, and that this drop in property values rendered mortgages a poor risk. (Of course, by choking off mortgage subsidies in racially integrated areas, the government ensured its own argument.) By 1960 the portion of owner-occupied homes in America rose to 60 percent, but black Americans were largely excluded from the ranks of new homeowners. Until the government passed an open-housing law in 1968, black Americans also faced rampant discrimination in the rental market. Home ownership carried more implications than one might think. A family that bought a house with a government-subsidized, government-insured mortgage in 1950 accrued tremendous social and economic capital. It accrued equity in that house and received generous tax deductions on its mortgage payments, thus allowing that family to amass wealth that was portable from generation to generation. It enjoyed access to better schools for its children and to better infrastructure (consider, for instance, the massive amount of federal money devoted to highway construction in the 1950s and 1960s). And it enjoyed access to cheaper credit in the form of home equity loans. Let’s personalize this: My grandparents, who bought a home in suburban Long Island in the 1950s, were able to accrue equity in their home and send their kids (my father and my aunt) to private colleges. They also got income tax breaks for the interest payments on their mortgage, which enabled them to squirrel away money to secure their retirement and help their kids get a start in life. When my grandparents passed away, they left money to my father and my aunt, money that helped them send their own kids to college (and to summer camp, enrichment programs, etc.), make improvements to their own homes, and invest for their own retirements. And so the cycle goes. The typical postwar black family, denied these same opportunities for a quarter century, enjoyed no opportunity to accrue equity in a home, to benefit from mortgage tax credits, to enjoy the social benefits of new schools and new civil infrastructure. Moreover, federal mortgage policies flowed over into the rental market, making it financially beneficial for landlords to restrict black renters to specific neighborhoods. The government’s own policies therefore manipulated the supply end of the rental market for African-Americans, driving up rents and choking off resources for capital improvements. Let’s bring this back to Mr. Gordon’s argument. I quite agree with him that there is a strong appeal to class-based affirmative action. But there is a historical argument to be made that the Fourteenth Amendment’s framers were comfortable with class and race-based affirmative action. And there’s a case to be made that while some white Americans have been left behind by the federal welfare state, all black Americans were targeted victims of that same welfare state in very recent times. Black taxpayers subsidized my family’s climb into the middle class. In this sense, I can’t disentangle race and public policy.
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