In his concurring opinion to the majority ruling striking down race-based affirmative action in college admissions, Supreme Court Justice Clarence Thomas argued for a race-neutral reading of historical efforts to remediate the effects of slavery and racism.
The formerly enslaved “freedmen,” who were supposed to be cared for under the Freedmen’s Bureau, were formally a “race-neutral category” in Justice Thomas’ view. The act establishing the bureau was approved by the same Congress that drafted the 14th Amendment (which was designed to “constitutionalize” the Civil Rights Act of 1866). Thus, if the original meaning of “freedmen” had little or nothing to do with race, the 14th Amendment does not protect any racial preferences, making affirmative action illegal, as Adam Serwer explained in an essay about Mr. Thomas’ reasoning in The Atlantic.
As recent landmark cases have demonstrated, the 14th Amendment is not history. It is current events. The Supreme Court last year struck down Roe v. Wade, which had protected a woman’s right to an abortion based on a liberal interpretation of the amendment’s due process clause. Even the recent impasse over the debt ceiling spotlighted the 14th Amendment’s relatively obscure Section 4.
In sum, the court’s conservative majority has taken a narrow view of the rights protected by the Reconstruction-era amendment, which was designed to clearly define citizenship after the emancipation of 4 million formerly enslaved Black people. In this episode of History As It Happens, historian Eric Foner discusses whether Justice Thomas, a conservative originalist, is getting the history right.
“When you get to Reconstruction and originalism, there are a lot of problems with how it is utilized, particularly the notion that there is a single meaning in things like the 14th Amendment, the 15th Amendment, the civil rights legislation. At a time of crisis, at a time when people’s views were changing radically, you cannot freeze the history at one moment in time. I am not persuaded at all that originalism is the best way to understand what the people at that time were attempting to accomplish,” said Mr. Foner, the author of “Reconstruction: America’s Unfinished Revolution.”
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