Originalism and the colorblind Constitution.

• Author: Rappaport, Michael B.
• Position: III. The Federal Laws Passed at the Time of the Fourteenth Amendment B. Do These Laws Employ Racial Categories? 2. Other Laws through Conclusion, p. 102-132

2. Other Laws

   Let me now discuss various laws that do not focus on previous condition of servitude but instead appear to classify based on race. Jed Rubenfeld's influential discussion, as well as those of other scholars, focuses on five principal sets of laws. (118) One 1866 law donated federally owned land in the District of Columbia "for the sole use of schools for colored children." (119) A second 1866 act is said to have appropriated funds for the relief of destitute colored women and children. (120) A third 1867 law provided for money for destitute "colored" persons within the District of Columbia. (121) A fourth 1866 law required military chaplains appointed for black troops to provide them with basic educational instruction. (122) Finally, Congress adopted special rules and procedures for the payment of "colored" servicemen in the Union Army. (123)

   While the critics claim that these five laws confer race-based benefits on blacks, and at first glance they appear to do so, upon examination it is not at all clear that they do. The first two laws do not provide any evidence of providing special race-based benefits to blacks. The third and fourth laws can be reasonably interpreted as not providing such benefits. The fifth law does appear to provide race-based benefits, but it may do so under significantly narrower grounds than the critics suggest.

   First, while Rubenfeld presents the law that donated federal owned land in the District of Columbia "for the sole use of schools for colored children" as a special benefit to blacks, this appears to be a misinterpretation. (124) Prior to 1862, public schools in the District were limited to white children. (125) In 1862, Congress initiated a separate school system for "colored" children. Under a system of separate but equal, each of the school systems should have received equal funding. (126) The law that Rubenfeld identifies contributed land to the public schools for black children. (127) This contribution, therefore, cannot be considered in isolation from the other more general funding provided to the two school systems. One can consider this contribution as a special benefit to blacks only if funding for black schools exceeded on a per capita basis the funding for white schools. Based on the operation of segregated schools generally, this seems quite unlikely. Moreover, the contribution of land for black public schools is entirely understandable without assuming additional contributions to black schools. If white schools had been operating in the past, then it would not be necessary to provide land for those schools, since they would have already been built. But black schools, which were just being started, would require additional capital contributions to be erected. (128)

   Second, Rubenfeld's discussion of the appropriation of funds for the relief of destitute colored women and children also appears to be misleading. The 1866 law appropriated funds for the National Association for the Relief of Destitute Colored Women and Children. (129) The private association had received a charter from the Congress in 1863. (130) The Association, which was initially located in Georgetown in the confiscated estate of a Confederate officer and provided food and shelter, had been established because of concerns about the plight of former slaves. (131) Fugitive slaves largely from Virginia, who were known as contrabands, had entered the District of Columbia and taken up residences in shantytowns and makeshift camps. (132) One source estimates that perhaps a third of the contrabands in the District died between 1862 and 1866. (133) The National Association in 1863 became a home "for sixty-four former slaves, most of them children." (134)

   In this case, the funding of the National Association, without more, would be unlikely to constitute the conferral of race-based benefits. The funding of a private organization is not state discrimination unless the state's decision to fund it is based on a discriminatory intent. Here there is no evidence that the federal government had a discriminatory intent. One nondiscriminatory reason for the funding is that the organization appeared to benefit only former slaves. Another possible nondiscriminatory reason is that it was addressing a serious problem of poverty through an existing organization. Rubenfeld appears to have misunderstood this law because he presents it as having the purpose of providing relief for "destitute colored women and children." (135) But that is incorrect. The law provides funds for the organization with that name, not necessarily for that purpose. Thus, the fact that National Association's purpose was to alleviate the poverty of colored women and children does not necessarily mean that Congress's purpose in assisting the organization, given the circumstances at the time, should be understood as providing race-based benefits to blacks.

   Third, the proper interpretation for the 1867 law that provided for money for destitute "colored" persons within the District of Columbia is also more complicated than Rubenfeld's brief discussion suggests. Once the background circumstances that led to this law are taken into account, one might easily conclude that the law was not intended as race-based legislation. To understand the enactment of the 1867 law, one must first review Congress's enactment of a similar law the previous year. At that time, the Congress proposed a law that would have provided funds just for destitute colored persons. (136) Opponents of the law criticized it on what amounted to the grounds that it discriminated based on race because there were also white persons who were destitute. (137) Defenders of the law argued it was not really discriminatory because the predominant need was by blacks, but they were willing to allow the funds to be provided to all destitute persons irrespective of color if administered by the Freedmen's Bureau. (138) When the law came up for reenactment the next year, however, Congress limited the funding to "freedmen or destitute colored persons" without explanation. (139)

   We do not know the reason why Congress chose to change the beneficiaries of the funding in 1867. But that Congress modified the statute in response to the objection of race discrimination the year before suggests that it took the issue seriously and did not believe that providing money to blacks was unproblematic. One possibility is that, after observing the distribution of funds, Congress determined that the advocates of the initial version of the prior year's statute were correct and that the predominant need existed among blacks. In that event, though, the 1867 law would still constitute a race-based measure, even though some might see it as one that had a public policy basis.

   But this understanding of the 1867 law may view it as more race-based than the evidence actually indicates. When one examines the justification given in 1866 for restricting the benefits to blacks, there is a strong argument that the law was either not race-based or far less race-based than the discussion above suggests. In response to the criticism that the original 1866 bill was racially discriminatory, it was defended on the grounds that there were various places in the city where former slaves, known as contrabands, lived in densely populated shantytowns. (140) The poverty in these shantytowns was extremely serious, with extended families crowded into six or eight foot square rooms with no windows for light. (141) These areas were also breeding grounds for disease, since they had poorly functioning sanitation. (142) Finally, the people living in these areas were not being helped by the government of the District of Columbia. The explanation offered for this neglect is that the contrabands were mainly refugees, who were not viewed as the problem of the District of Columbia. (143)

   This justification for the benefits then suggests a non-race-based reason. Under this justification, these benefits were not provided to destitute blacks because of their race or because there was a tendency for blacks to be in worse circumstances. Rather, Congress provided the benefits because there was a special problem exhibited by the shantytowns in the District where only blacks lived. The blacks living in the shantytowns were suffering the worst poverty in the District, were also part of a serious public health problem, and were not receiving assistance from the local government. (144) Under this view, stating that the benefits should be provided to destitute blacks was a way of identifying the people in these circumstances, since it was the most destitute blacks who were in these circumstances. As Senator Morril who explained the law to the Senate stated, "there are no poor white people in this city in that condition." (145)

   Under this interpretation, the law would not have been intended as a race-based measure, but instead as a measure to deal with poverty and related problems that happened to have afflicted blacks. (146) Of course, under modern equal protection analysis, this statute would be likely to be viewed as race-based--or at least as presumptively race-based--because it draws a textual racial distinction. If the statute were defended as non-race-based, the counter-inquiry would ask why Congress had not passed a textually race-neutral statute--by either listing the areas that were subject to the extreme poverty, health effects, and neglect by the local government or by limiting the payment of benefits to the people with the greatest poverty living in areas that had these three characteristics. Although the first option may have been impeded by Congress's apparent lack of knowledge of all of the relevant areas, it is not clear why the second would not have worked. (147)

   While this formal focus on the statutory text would treat the statute as race-based, there is a strong argument that it should not be viewed as race-based for purposes of...