In the Atlantic, Adam Serwer has written a screed against an argument made by Justice Thomas in his concurrence in the affirmative action case. The title of the piece captures its tenor – “The Most Baffling Argument a Supreme Court Justice Has Ever Made.” In a way, this piece is remarkable – in a short essay, he is able to include both the main mistakes historians make about the Freedmen’s Bureau Acts and some of the principal slanders against modern originalism. Since much of his piece attacks Thomas arguments that rely upon my scholarship, I shall make an effort to briefly respond to it.
Serwer’s piece basically argues that the history of the Freedmen’s Bureau Acts shows that the Framers of the 14th Amendment favored race-based benefits. Sewer actually goes beyond that – he argues the case is so clear that one can infer that Thomas is merely using originalism as a cover so that he can pursue his political goals. But Sewer is long on political rhetoric and insults, but short on strong arguments or reliable evidence.
Serwer’s argument is that the Freedmen’s Bureau Acts provided racial preferences for blacks and therefore the Framers of the 14th Amendment could not have intended to prohibit such preferences.
Since Serwer purports to be relying upon accurate history, let’s start with some points that should have alerted him to the problems with the evidence he relies upon. First, Serwer's argument relies in part upon the views of race neutrality and race preferences of the small minority in the House and Senate who opposed the Freedman’s Bureau Acts (and to a significant extent the Civil Rights Act). So Serwer is relying on people’s views who were combatting legislation intended to prohibit the Black Codes. Not exactly a reliable source for determining what an Amendment intended to prohibit the Black Codes was intended to do.
Second, Serwer shows no evidence of having consulted my law review article Originalism and the Colorblind Constitution, upon which Justice Thomas relies. Yet, the arguments he makes are addressed in the article.
Let me then move to the substance. The question is whether the Freedmen’s Bureau Acts were providing race-based benefits or instead benefits based on a nonracial category defined by behavior or circumstances.
In my article and in Justice Thomas’s dissent, it is argued that the category of freedmen is a category based on circumstances rather than race. A freedman is a former slave. So if one was a former slave, one receives the benefits. If one was never a slave, then one does not receive the benefits, even if one is black.
If Serwer wants to prove his point, he needs to claim that freedmen meant blacks rather than former slaves. But that is pretty difficult, given that the term “freedmen” pretty clearly indicates someone who used to be a slave and has now been freed. Serwer quotes a couple of historians to claim otherwise but their arguments miss the point. For example, Serwer quotes an Eric Foner email stating “Ninety percent of Blacks were slaves in 1860, and everyone knew whom the Freedom Bureau Act was meant to assist.” But that is not the question. The question is whether "freedmen" referred to people based on their color or based on circumstances.
Serwer’s principal argument is that all freedmen were black. True enough, but irrelevant. The question is whether "freedmen" was a category that selected people based on race. It does not. Not all blacks were freedmen. Some had been born free. (And there were no whites, who were former slaves, who were not treated as freedmen.) The Act identifies a category based on circumstances, not race.
Serwer relies upon arguments that both miss the point and show the opposite of what he intends. For example, he relies on a brief submitted by Stephen West and other historians. In the brief, it is argued that the Freedmen’s Bureau Act was intended to protect not merely freedmen, but blacks.
This is true in a misleading way. The Freedmen’s Bureau Act was intended to protect blacks. But not by providing them with benefits, as the provisions involving freedmen did. Instead, blacks (as opposed to freedmen) were protected by a provision that prohibited racial discrimination. The Second Freedmen’s Bureau Act provided
That in every State or district where the ordinary course of judicial proceedings has been interrupted . . . by the rebellion . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all those citizens of such State or district without respect to race or color, or previous condition of slavery.
So yes, the Second Freedmen’s Bureau Act was intended to protect blacks – by prohibiting racial discrimination. How that can be used to suggest that the Act supported race-based preferences is a puzzle.
In the end, Serwer’s argument is pretty weak. To be honest, there are harder statutes for Justice Thomas and me to explain than the Freedmen’s Bureau Acts – statutes I address in my article. Serwer’s argument was intended to show that Justice Thomas was incompetent and result oriented. But it is not Justice Thomas against whom one can make that charge.
Posted at 8:00 AM