Cass Sunstein has a post criticizing originalists Justice Scalia and Thomas for the alleged inconsistency of their opinions with originalism.  The main focus of his article is affirmative action, about which he argues that the history of the Fourteenth Amendment “strongly” supports the constitutionality of affirmative action.  But he also raises concerns about other issues, such as commercial speech and the regulatory takings.  In this post, I will discuss affirmative action; in a future post, I will address commercial speech and regulatory takings.

Sunstein’s argument about affirmative action is taken from his earlier book Radicals in Robes.  Yet, his argument here is no more persuasive than it was in the book.  Two basic points.  First, Sunstein argues that the Freedmen’s Bureau Act of 1866 “specifically authorized the use of federal funds to provide educational and other benefits to African-Americans.”  But this is misleading at best.  This Act provided benefits to war refugees (who could be white or black) and former slaves.  It is true that all former slaves were black, but not all blacks were former slaves.  This legislation was focused not on a racial category, but on a category (being former slaves) that was defined by past behavior.

Nor is there any reason to believe that this category was being used as a subterfuge (in order to secretly benefit blacks by providing benefits to former slaves – as were the infamous grandfather laws that purported to be race neutral but were designed to prevent blacks from voting).  There was a good justification for providing benefits to those who had been freed from the oppression of slavery.  Such benefits both prevented them from starving and assisted them with entering American life as independent citizens.  It is curious that Sunstein has repeatedly made this claim about the Freedmen’s Bureau Act without acknowledging or addressing this rather obvious counterargument.   It is also curious that Sunstein does not note that both Scalia (in Croson) and Thomas (in Seattle Schools) have argued that government benefits provided to actual victims of discrimination are not race based, even if all of the victims are from a particular race.

Second, both the Freedmen’s Bureau Act as well as other pieces of legislation that Sunstein references (a couple of which were in fact race based) were passed by the federal government.  Sunstein’s post and book completely ignore that the 14^th Amendment equality requirement (deriving either from the Equal Protection Clause or the Privileges or Immunities Clause) does not apply to the federal government.  It is difficult to argue that this legislation reflects the 14^th Amendment when the Amendment itself purposefully excluded the federal government.  Put differently, race based legislation may have been passed only because the Congress knew that they were not subject to the equality requirement imposed on the states.