In the recent oral argument before the Supreme Court in the case of Merrill v. Milligan, the State of Alabama argued that the Voting Rights Act provisions designed to guarantee the rights of African Americans are unconstitutional because the 14th Amendment requires United States laws to be “colorblind.” New Justice Ketanji Brown Jackson countered the argument by saying that the 14th Amendment and other Reconstruction Era laws were not “colorblind,” they were enacted to counter a long history of discrimination against Blacks, including enslavement.
Justice Brown Jackson said that the 14th Amendment “was drafted to give a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.” Jackson told the Alabama Solicitor General that the Reconstruction laws were drafted with the history of discrimination at the forefront. She said, “I understood that we looked at the history and traditions of the constitution, at what the Framers and the Founders thought about. And when I drill down to that level of analysis, it became clear to me that the Framers themselves adopted the equal protection clause, the 14th, the 15th Amendment, in a race-conscious way. That we were, in fact, trying to ensure that people who had been discriminated against, the Freedman, during the Reconstruction period, were actually brought equal to everyone else in society.”
The 13th Amendment, abolishing slavery and ratified in 1865, was a Constitutional change generated by the Civil War and the Emancipation Proclamation. Most Members of Congress did not envision the necessity of providing further protections for formerly enslaved people until the final months of the war, when the Freedmen’s Bureau Act was passed to create an agency of the Federal government to provide assistance and protection to the emancipated.
To see if she is right, I looked at the Report of the Joint Committee on Reconstruction from June of 1866, when the Civil Rights Act was enacted and the 14th Amendment was being considered by Republicans. The document offers us insight into the thinking of the Framers of the 14th Amendment. Here is what they said:
Your committee came to the consideration of the subject referred to them with the most anxious desire to ascertain what was the condition of the people of the States recently in insurrection, and what, if anything, was necessary to be done before restoring them to the full enjoyment of all their original privileges. It was undeniable that the war into which they had plunged the country had materially changed their relations to the people of the loyal States. Slavery had been abolished by constitutional amendment. A large proportion of the population had become, instead of mere chattels, free men and citizens. Through all the past struggle these had remained true and loyal, and had, in large numbers, fought on the side of the Union. It was impossible to abandon them, without securing them their rights as free men and citizens. . . . Hence it became important to inquire what could be done to secure their rights, civil and political. It was evident to your committee that adequate security could only be found in appropriate constitutional provisions.
With such evidence before them, it is the opinion of your committee:
I. That the States lately in rebellion were, at the close of the war, disorganized communities, without civil government, and without constitutions or other forms, by virtue of which political relations could legally exist between them and the federal government.
II. That Congress cannot be expected to recognize as valid the election of representatives from disorganized communities, which, from the very nature of the case, were unable to present their claim to representation under those established and recognized rules, the observance of which has been hitherto required.
III. That Congress would not be justified in admitting such communities to a participation in the government of the country without first providing such constitutional or other guarantees as will tend to secure the civil rights of all citizens of the republic; a just equality of representation; protection against claims founded in rebellion and crime; a temporary restoration of the right of suffrage to those who had not actively participated in the efforts to destroy the Union and overthrow the government, and the exclusion from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence. . . .
IV. Having, by this treasonable withdrawal from Congress, and by flagrant rebellion and war, forfeited all civil and political rights and privileges under the federal Constitution, they can only be restored thereto by the permission and authority of that constitutional power against which they rebelled and by which they were subdued.
V. These rebellious enemies were conquered by the people of the United States, acting through all the coordinate branches of the government, and not by the executive department alone. The powers of conqueror are not so vested in the President that he can fix and regulate the terms of settlement and confer congressional representation on conquered rebels and traitors. Nor can he, in any way, qualify enemies of the government to exercise its law-making power. The authority to restore rebels to political power in the federal government can be exercised only with the concurrence of all the departments in which political power is vested; and hence the several proclamations of the President to the people of the Confederate States cannot be considered as extending beyond the purposes declared, and can only be regarded as provisional permission by the commander-in-chief of the army to do certain acts, the effect and validity whereof is to be determined by the constitutional government, and not solely by the executive power. . . .
X. The conclusion of your committee therefore is, that the so-called Confederate States are not, at present, entitled to representation in the Congress of the United States; that, before allowing such representation, adequate security for future peace and safety should be required; that this can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic, shall place representation on an equitable basis, shall fix a stigma upon treason, and protect the loyal people against future claims for the expenses incurred in support of rebellion for manumitted slaves, together with an express grant of power in Congress to enforce those provisions. To this end they offer a joint resolution for amending the Constitution of the United States and the two…bills designed to carry the same into effect, before referred to.
While the 14th Amendment’s language is expansive enough to encompass protected classes beyond the formerly enslaved people of the South, the intent of the Amendment, at least as expressed in the Joint Committee’s report clearly references the history of discrimination against African Americans.
Ratification of the 14th Amendment by the states began on June 30, 1866 and was completed on July 9, 1868.
Note on Feature Illustration: “A Man Knows a Man,” Harper’s Weekly, April 22, 1865. Collection New-York Historical Society. You can see the original page in Harpers Weekly here.
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