Rather than address that question in the usual way, the historians go to the past. They write about the violence imposed on the former slaves by Southern Democrats and former Confederates in the post-Civil War Southern states. As they explain: “[T]he history relevant to the adoption of the Fourteenth Amendment confirms the correctness of this Court’s precedents.” The core concern was to ensure “that democratic majorities in the states did not hamper freedmen (as former slaves were then called) from exercising influence in governmental processes, including the consideration of legislation, in support of their rights and interests.”
But are they correct?
Do these historians really think that comparing the plight of African-Americans in the former slave states, soon to be hounded by the KKK and other violent groups seeking to deprive the freedmen of the rights granted them, in any way compares to those African-Americans living today who seek entry to college despite not being able to pass the admission standards?
If one argues that they need to catch up and not be prevented from a college education because their material circumstances necessitated affirmative action, shouldn’t it also be extended to poor working-class whites who only made it through high school, and who are equally unprepared for college? Why is the call for affirmative action made only for African-Americans? In other words, they are arguing for the same racial standards they claim to oppose.
It is they who are using a racist argument.
The filers of the brief argue that the Court should look to events leading up to the Civil War, and then to “the legal repression and brutal racial violence that took place” in the South “immediately after the Civil War ended,” quoting one of the signers who initiated the brief, historian Paul Finkelman. The historians then wade through the history of the past, to which I have no objection. It has long been known that, although slavery was ended, the black population had its rights granted after the war slowly taken away as Reconstruction came to an end. All this is true, and one wonders why this group is seeking to acquaint the justices of the Supreme Court with this lesson, which they undoubtedly already are quite familiar with. We already know, for example, that “President [Andrew] Johnson offered amnesty and readmission to the Union [and that it] created significant obstacles to achieving [the] result” of full “civil and political rights” for the freedmen.
So I ask a very simple question: just what does this long history lesson have anything at all to do with giving African-Americans continuing entry to college through “affirmative action”?
Are they implying that, like at the end of Radical Reconstruction, blacks today are as oppressed as they were then?
Do they think that blacks today are subject to the infamous “Black Codes” imposed upon African-Americans after the racist counterrevolution that took place?
The historians note that one result was that former Southern rebels took back control of state and local governments, and thus the black freedmen turned to the national government for support. True enough. Does that mean that because the former slaves then “had no civil rights,” that today’s black population must have affirmative action?
Is the black population’s situation in the United States today the very same one the freedmen faced?
They answer by arguing that the 14th Amendment made “civil rights” something that had to be protected by that amendment to the Constitution. Violence in places like New Orleans and Memphis, they point out, led to the weakening of Reconstruction favored by the president. The result was the short-lived victory of Radical Reconstruction, during which for the first time the freed black population gained actual civil rights as well as full political rights.
According to their history, the Congress that funded these efforts made “race-conscious educational initiatives” through creation of the Freedmen’s Bureau. Get it? If Congress made “race-conscious” policy then, it has the right to do so now!
Congress, they write, “was attempting to address in the Fourteenth Amendment the disparity of power caused by unequal access to economic opportunity and to the public square.”
According to their own testimony, however, the treatment afforded blacks in the 1860s and ’70s prevented them from participating at all in the public sphere, and local mobs supported by the state governments used violence against the black population to see that Reconstruction would end. To give their argument merit, one would have to prove that today the black population of the United States faces the very same repressive policies inflicted on the freedmen, and that the laws of the states and the federal government also prevent African-Americans today from attaining justice.
Of course they do not even attempt to do that, although undoubtedly many of them actually believe that the situation facing African-Americans today is precisely the same as it was then. Hence their conclusion:
Nevertheless, the Congress that proposed the Fourteenth Amendment and the people who ratified it in 1868 were very much aware of the systematic exclusion of black voters. They knew full well about the violence frequently directed at blacks who advocated on behalf of freedmen’s rights. And they were familiar with the other, more subtle means used to prevent the freedmen’s concerns — in particular promotion of race-conscious affirmative assistance of the type enacted at the federal level — from consideration by state legislatures. These special burdens on racial minorities’ advocacy efforts therefore were among the principal evils against which the Fourteenth Amendment was directed.
I remind readers that the schools established were for former slaves, and were not specified as being only for African-Americans. They were giving education previously denied to both whites and blacks in the former slave states, and what they established was not “race-conscious affirmative assistance.” As John Rosenberg points out in his essay, there is a great difference between laws that protect civil rights and laws that are used to create racial preferences that are discriminatory to others, and in effect “promote racial discrimination.”
Perhaps Professors Finkelman, Foner, and the others could have simply handed out a bibliography or stood in the lobby during Court deliberations, where they could set up a table and sell their respective books. Had they done that, they would have spared themselves the task of having to draw up a brief that is a précis of what they wrote in their actual works.
The lesson to learn from their brief is not the one they believe they are teaching. Rather, the brief reveals the left-wing bias of the major figures in our academy, and reveals how they use our history to argue for racial measures today that are quite different from the ones created by Congress after the Civil War, which were meant to aid those whose civil rights had been taken from them.
Once again, our leading historians have joined others — like the Rutgers faculty — in arguing on racial grounds. Like the historians, the Rutgers group has effectively said they can determine who really is African-American by the beliefs they hold, and since Condoleezza Rice disagrees with them, she cannot be allowed to speak to students who might exit thinking that a black Republican just might have something to say.
It is a day for members of the academy to bow their heads in shame.