At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment. Gans makes two points:
First, he claims that in
the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law. That was a core principle of due process, to which the federal government was bound under the Fifth Amendment. (The Supreme Court has said as much repeatedly.) In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons.
Gans point here is problematic. It is true that during these debates, people often argued about equality. But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement. It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government.