Kate Masur & Gregory Downs, Designed to Ameliorate the Condition of People of Color: The Reconstruction Republicans and the Question of Affirmative Action, 2 J. Am. Con. Hist. 625 (2024).
This article investigates whether the Republican leaders who drove passage and ratification of the Fourteenth Amendment believed the amendment required race-neutrality, and whether they would have viewed as unconstitutional race-conscious policies designed to ameliorate the condition of African Americans and potentially other groups that faced race-based subordination. Casting doubt on the versions of history offered in Chief Justice Roberts’ majority opinion and Justice Thomas’s concurrence in Students for Fair Admissions v. Harvard (2023), this article argues that Reconstruction Republicans focused on counteracting white supremacy and, unlike many of their professed admirers in the twentieth-and twenty-first-centuries, readily saw the difference between race-conscious policies designed to preserve white supremacy and those designed to combat it. The article shows that congressmen who approved the amendment supported policies including the Civil Rights Act of 1866 and the Freedmen’s Bureau Acts to ameliorate the conditions of Black people, whether previously free or previously enslaved, and it provides context for remarks they made that are now used to suggest that they required a race-neutral approach. The piece also addresses Justice John Marshall Harlan’s frequently used quote from his dissent in Plessy v. Ferguson (1896), “Our Constitution is color-blind,” emphasizing that Harlan merged from a very different political and ideological context than the Fourteenth Amendment authors and should not be read as representing their views. The piece concludes that judges and attorneys claiming to provide accounts of American history should approach that history with greater curiosity, integrity, and contextual engagement.
