Midway through his concurrence with the Supreme Court’s decision to strike down affirmative action, Justice Clarence Thomas deploys one of the most absurd and baffling arguments ever put to paper by a justice.
In order to argue that the Framers of the Fourteenth Amendment did not intend to authorize racially specific efforts to alleviate inequality, Thomas finds himself forced to explain the existence of the Freedmen’s Bureau, which was reauthorized in 1866 by the same Congress that approved the Fourteenth Amendment. To square this circle, Thomas insists that the term freedmen was a “formally race-neutral category” and a “decidedly underinclusive proxy for race.”
The 1866 Freedmen’s Bureau Act then expanded upon the prior year’s law, authorizing the Bureau to care for all loyal refugees and freedmen … Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because “not all blacks in the United States were former slaves,” “‘freedman’” was a decidedly underinclusive proxy for race.
If “freedmen” were a “formally race-neutral category,” then the Fourteenth Amendment does not authorize race-conscious efforts to remedy racial discrimination, and affirmative action cannot be constitutional. As an originalist, Thomas is supposed to interpret the Fourteenth Amendment as it was understood at the time it was written. He is attempting to reconcile his philosophy of judicial interpretation with what the history actually says; the other originalist justices do not really try, perhaps aware of the awkwardness of doing so. The problem, though, is that Thomas’s interpretation is obviously incorrect. His efforts at reconciliation ultimately illustrate the extent to which “originalism” is merely a process of exploiting history to justify conservative policy preferences, and not a neutral philosophical framework.
“Freedmen” cannot be a “formally race-neutral category,” because American slavery was not a formally race-neutral institution. Moreover, an extensive historical record illuminates the intentions of the lawmakers who passed the Freedmen’s Bureau Acts. They certainly did not see the term freedmen as racially neutral, and they intended the bureau to protect the rights of Black people in the South, whether formerly enslaved or not. We know this because they said so; the insistence to the contrary is the result of conservatives projecting their version of “color blindness” backwards through time.