Racial Classification and Reconstruction Legislation

Racial Classifications and Reconstruction Legislation
Author(s): Paul Moreno

Source: The Journal of Southern History , May, 1995, Vol. 61, No. 2 (May, 1995), pp.
271-304
Published by: Southern Historical Association
Stable URL: https://www.jstor.org/stable/2211578
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Racial Classifications and
Reconstruction Legislation
By PAUL MORENO
THE AMERICAN LEGAL AND CONSTITUTIONAL REGIME ADJUSTED

end of slavery through a variety of devices. The Emancipation Procla-
mation, using the executive's war-making power, freed several million
slaves in the rebel states; and the Thirteenth Amendment freed the rest
and made emancipation irreversible. The Freedmen's Bureau adminis-
tered relief to destitute freedpeople and refugees and provided for
their safety and education. The U. S. Constitution adjusted to the real-
ities of emancipation and reunion by establishing a single class of
American citizenship and, in so doing, nationalizing civil rights. Con-
gress adopted this policy first as a war-related measure in the civil
rights guarantees of the Freedmen's Bureau Acts, then as a peacetime
statute in the Civil Rights Act of 1866, and finally in the Fourteenth
Amendment.
An important issue during Reconstruction concerned the status of
race in this new plan of American citizenship. Were black Americans
(and Americans of other races) to enjoy equal rights, privileges, and
responsibilities with white Americans, or was black citizenship to be
different-either a so-called second-class citizenship or a specially
protected and favored class of citizenship? In short, was the new
American citizenship, constitutionally and legally defined, to be color-
blind or color conscious?
Along with many contemporary constitutional lawyers, many
scholars studying the Reconstruction amendments have attempted to
show that U.S. citizenship was meant to be color-blind. The principal
object of advocates and scholars alike has been to remove doctrines of
racial classification that are manifest in segregation. Historians
brought forth evidence to support court decisions like Brown v. Board
of Education and statutes like the Civil Rights Act of 1964, landmarks
of modern color-blind constitutionalism. Segregationists no longer at-
tack the color-blind interpretation of Reconstruction constitutionalism,
MR. MORENO is an assistant professor of history at St. Thomas Aquinas

College.
THE JOURNAL OF SOUTHERN HISTORY

Volume LXI, No. 2, May 1995

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272 THE JOURNAL OF SOUTHERN HISTORY
but that interpretation has drawn fire from another quarter: proponents
of race-based affirmative action have argued that the framers of the
Reconstruction amendments envisioned and actually implemented
"benign" racial classification in American law. In this interpretation,
racial classification was used to achieve equality in citizenship and to
overcome the damage of second-class citizenship and the non-citizen-
ship of slavery. Accordingly, the Fourteenth Amendment and the Civ-
il Rights Act of 1866 made room for, and the Freedmen's Bureau is an
example of, such racially exclusive compensatory legislation. Shortly
after the passage of the Civil Rights Act of 1964 it was argued that
"legislation shortly after the Civil War providing special benefits for
freed slaves was really legislation assisting Negroes exclusively, and
was deliberately designed to be such."' This interpretation was ex-
pressed in Justice Thurgood Marshall's opinion in the 1977 Bakke
case as a historical justification of racial quotas in admissions to insti-
tutions of higher education.2 Most recently it has been argued that the
Reconstruction Congress "adopted a series of social welfare laws ex-
pressly delineating the racial groups entitled to participate in the ben-
efits of each program .... The evidence is overwhelming that one rea-
son for the adoption of the [Fourteenth] amendment was to provide a
clear constitutional basis for such race-conscious programs."3
Focusing on the enactment of the Freedmen's Bureau bills and the
objections to them by proslavery, border state Democrats, these schol-
ars see the intent of preferential racial classification. A fresh look at
the evidence renders this conclusion untenable. The authors of these
measures, who denied charges of racial bias, provide a different inter-
pretation of the reasons for establishing the Freedmen's Bureau. Sim-
ilarly overlooked or ignored is evidence concerning the performance
of bureau officials, which gives little indication of exclusive, pro-
black racial consciousness. Pertinent also is the testimony by bureau
officials and freedpeople that affirms the ideal of a racially neutral,
I Peter Marcuse in Robert L. Carter et al., Equality (New York, 1965), 160; and Gary Elden,
"'Forty Acres and a Mule', With Interest: The Constitutionality of Black Capitalism, Benign
School Quotas, and Other Statutory Racial Classifications," Journal of Urban Law, XLVII (No.
3, 1969), 591-652.
2 Regents of the University of California v. Bakke, 438 U.S. 265 (1978) at 398. This part of
Marshall's opinion was largely based on a brief by the N.A.A.C.P. Legal Defense and Educa-
tional Fund, Inc., later published by Eric Schnapper in "Affirmative Action and the Legislative
History of the Fourteenth Amendment," Virginia Law Review, LXXI (June 1985), 753-98.
3 James E. Jones Jr., "The Rise and Fall of Affirmative Action," in Herbert Hill and James E.
Jones Jr., eds., Race in America: The Struggle for Equality (Madison, Wisc., 1993), 345-69 (quo-
tation on pp. 347-48).

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RACIAL CLASSIFICATIONS 273
common American citizenship. Finally, the bureau was established by

statute as a temporary, emergency agency. Even if racial preference
were present in the Freedmen's Bureau Acts or in the bureau's execu-
tion of the acts, that would not prove that race consciousness was
meant to be part of the constitutional order. That order, as announced
in the permanent Civil Rights Act and the Fourteenth Amendment,
should be addressed independently. Finally, historians must consider
the relevance and adequacy of legislative history and original intent
analysis for constitutional history and policy.
Many important factors shaped the drafting and enactment of Re-
construction legislation, and a variety of motives influenced the vari-
ous groups of Republican legislators. While it is difficult to ascertain
all of the forces at work, several observations about the historical con-
text of Reconstruction legislation can be made. Historians have em-
phasized that the Republican party was under the control of its mod-
erate-to-conservative members and that potential legislation was lim-
ited to what was acceptable to this group.4 Constitutional principles,
primarily federalism and limited government, were also important re-
straints on legislative experimentation. The issue of civil rights was
still largely unexplored and protean, and opponents of Reconstruction
often used constitutional rhetoric to mask other ends; nevertheless,
these antebellum principles regarding constitutional government must
be seen as controlling factors in Reconstruction legislation.5 More-
over, while the definition of civil rights fluctuated and expanded from
1863 to 1875, by twentieth-century standards it remained limited.
Congress reacted to conditions in the South created by the war and to
the refusal of southerners to acknowledge emancipation and equal
rights; however, the impetus for active Reconstruction as an execu-
tive-led response to a war-related emergency waned. In addition to
discussing these determining factors, this article will attempt to show
that the evolution of Reconstruction policy, from the Freedmen's Bu-
reau to the Fourteenth Amendment, was guided by a central princi-
ple-to prohibit discrimination based on color.
President Abraham Lincoln's 1863 Emancipation Proclamation
quickly led to proposals for a government agency to assist the millions
4 Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Re-

construction, 1863-1869 (New York, 1974), 21-58; and Earl M. Maltz, Civil Rights, the Consti-
tution, and Congress, 1863-1869 (Lawrence, Kansas, 1990), 41.
5Donald G. Nieman, Promises to Keep: African-Americans and the Constitutional Order,
1776 to the Present (New York and Oxford, 1991), 93.

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of newly freed slaves. The War Department created the American

Freedmen's Inquiry Commission in 1863 to suggest methods for deal-
ing with the freedpeople. Its three members, Robert Dale Owen,
James McKaye, and Samuel G. Howe, all abolitionist reformers, heard
testimony from blacks and whites in the South and submitted a report
and recommendations to the Secretary of War in mid-1863. The com-
mission called for temporary aid to poor white refugees as well as to
freedpeople. "The refugees from slavery, when they first cross our
lines, need temporary aid, but not more than indigent southern whites
fleeing from secession," the commission observed. Relief measures,
"whether for the relief of poor southern whites or of poor refugee
blacks, or for the guardianship of such refugees, should be more or
less temporary in their character, and should be prepared and adminis-
tered in that idea and intent." This relief would serve as tangible proof
of freedom for the former slaves, providing something they could
grasp as proof of the "abstract principles" of the Emancipation Procla-
mation. Moreover, Congress should extend the Proclamation, taking
"a brave, bold stand for human liberty, irrespective of race or color,"
by abolishing slavery in the border states. The commissioners warned
that "there is as much danger in doing too much as in doing too little,"
by fostering dependency. Calling for "evenhanded justice, not special
favor," they noted that the best guarantee of justice was to assure that
"no discrimination shall be made, as to the civil or political rights of
persons, because of color." After the restoration of the southern states
to the Union, the best way to secure freedom would be "not special
laws or a special organization for the protection of colored people, but
the safeguard of general laws, applicable to all, against fraud and op-
pression." Eric Foner has noted that "the Commission's recommenda-
tions reflected the tension between the laissez-faire and interventionist
approaches to the aftermath of emancipation." While this may be so,
the commission's recommendations reflected no such tension on the
matter of racial equality. The commission unequivocally argued for a
color-blind policy.6
Although Congress finally adopted the racially impartial, tempo-
rary policy recommended by the American Freedmen's Inquiry Com-
mission, the first proposal introduced into Congress was at variance
6 Senate Exec. Docs., 38 Cong., 1 Sess., No. 53: Report of the American Freedmen's Inquiry
Commission (Serial 1176, Washington, 1863), 109, 14, 21, 95, 109, 99, and 110; and Eric Fon-
er, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York and other cities,
1988), 68.

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with it. The first bill to establish a Freedmen's Bureau, H.R. 51, was
limited exclusively to freedpeople. Radical Republican Thomas D.
Eliot of Massachusetts proposed the bill to establish, as an incident of
wartime emancipation, a temporary bureau in the War Department to
assist the freed slaves. Eliot pointed to obvious reasons for the bu-
reau's placement in the War Department. The army that had freed the
slaves was required to protect them. Only the power of the War De-
partment could command respect and obedience in areas recently un-
der rebel control.7 Other supporters argued that the bureau was "re-
quired by the exigencies of the case" or as "an incident to the war."8
The various statutes creating, authorizing, and extending the Freed-
men's Bureau were always temporary and related to the war power.
However, while a Union victory was more likely than in 1862, the un-
certain state of the war in 1864 gave the debate an especially tentative
character.9 For example, Congressman Samuel S. Cox of Ohio thought
that the bureau would be rendered unnecessary by a Democratic vic-
tory in the November elections, which would reverse emancipation
and result in a negotiated end to the war.10 Moreover, in mid-1864
many slaves had not been emancipated. Eliot was careful to assure
members from the border states that the proposed bureau did "not con-
template interfering with the slaves in Kentucky, Missouri, or Mary-
land" and that it did not concern "any other persons than freedmen"-
that is, the Freedmen's Bureau would not benefit the free blacks of
any state.11 Indeed, one of the reasons for the racial exclusivity of
original versions of the Freedmen's Bureau bill was that slavery still
existed. Limiting the legislation to freedpeople assured border slave
state congressmen that Congress would not interfere with slavery
there.
With these assurances the Freedmen's Bureau bill passed the House
and went on to the Senate, where it was managed by Charles Sumner.
Sumner also described the bill as limited in its scope and duration and
restricted to the freedpeople alone. He advocated "a bureau which will
be confined in its operations to the affairs of freedmen, and not travel
beyond this increasing class to embrace others, it may be of African
descent."12 Freedpeople, but not free blacks or border state slaves,
7Congressional Globe, 38 Cong., 1 Sess., 572 (February 10, 1864).

8 Ibid., 775 (February 23, 1864) and 890 (March 1, 1864).
9 Maltz, Civil Rights, the Constitution, and Congress, 5-6.
10 Cong. Globe, 38 Cong., 1 Sess., 712-13 (February 17, 1864).
11 Ibid., 894 (March 1, 1864).
12 Ibid., 2799 (June 8, 1864).

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were the object of the legislation. While relief measures were to be as

racially exclusive as American slavery had been, emancipation rather
than race was to be the relevant criterion or basis of the policy.
The crucial difference between the House and Senate versions of
the bill concerned the location of the Freedmen's Bureau in the gov-
ernment. While the House put the Bureau in the War Department, the
Senate preferred the Treasury Department because the Treasury was
already administering abandoned lands. Congress did not reconcile
this difference in the first session of the Thirty-eighth Congress, and a
conference committee took it up again in December 1864.
In February 1865 Eliot introduced the new version of H.R. 51 in the
House. It resolved the problem of where to locate the bureau by creat-
ing an autonomous Freedmen's Bureau. The conference bill still ap-
plied only to freedpeople, but it no longer limited the definition of
freedpeople to former slaves. Moreover, nothing in the text of the bill
limited the bureau's operation to the period of the existing war.13 Eliot
did, however, promise that the bureau would operate only in rebel
states and only until they were readmitted.14 During the debate in t
House, Radical Republican Robert C. Schenck of Ohio, chairman of
the Committee on Military Affairs, asked that a substitute bill (H.R.
698) drafted by the committee, be accepted in place of the conference
bill. Schenck said that his bill "makes no distinction on account of col-
or-a favorite phrase, as is well understood, in these times among us
all." Schenck told his colleagues that his bill was better because "it
does not discriminate against whites; .. . it proposes to take care of all
refugees, as well as all freedmen, who may need the help of the Gov-
ernment." Schenck also wanted to guard against fostering, in both
freedpeople and refugees, a habit of dependence upon the government.
But he insisted that the suffering that the war had wrought hit both
groups equally. Thus, Schenck argued that the relief provided in his
bill "does not ... look to a distinction on account of color; it does not
discriminate against the whites; but, if we are to legislate on this sub-
ject, would provide for refugees and freedmen, refugees of all colors
as well as freedmen, in order that all shall have that temporary relief."
Eliot replied that he would be glad to consider support for white
refugees-but only in a separate bill after the vote on H.R. 51. H.R. 51
passed the House that day by a vote of 64 to 62. 15
13 Ibid., 38 Cong., 2 Sess., 563 (February 2, 1865).

14 Ibid., 689 and 694 (February 9, 1865).
15 Ibid., 691 and 693-94 (February 9, 1865).

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Objections to H.R. 51, because of its neglect of loyal white

refugees, grew during debate in the Senate, and many devoted anti-
slavery senators called for Schenck's simpler, more inclusive substi-
tute bill. Senator James W. Grimes, conservative Republican of Iowa,
who claimed that no "person here entertains any more sympathy with
the colored refugees or with the white refugees than I do," objected to
the conference bill. He disagreed with the provision that all abandoned
land should be available to freedmen, with no provision for destitute
white men. "I am not prepared to say by the passage of this bill that all
the lands and all the abandoned plantations in that country are to be
given, under an act of Congress, simply to the colored people, and that
the white refugees and the white Union people residing there, who are
in exactly as destitute a condition as these colored men, shall not have
any advantages." He preferred Schenck's color-blind substitute. Sena-
tor John P. Hale of New Hampshire objected to "a provision which
would actually forbid our officers from extending any relief, even the
slightest, to a white refugee, provided there was a colored person who
wanted it. That, to my mind, is a very serious objection." Senator Hen-
ry S. Lane, radical Republican of Indiana, agreed with Grimes and
Hale. He said, "I cannot vote for this measure in any shape, and no
man will doubt my anti-slavery record who knows me." Lane also
preferred the Schenck bill. On February 22, 1865, near the close of the
Thirty-eighth Congress, the Senate defeated H.R. 51 by a 14-to-24
vote. Schenck's substitute was passed in both houses on March 3, fi-
nally bringing a Freedmen's Bureau into existence.'6
H.R. 51, providing only for freedpeople, was the last piece of con-
gressional legislation with language implying racial exclusivity. If
Eliot and other Radical Republicans believed that racial classifications
used before the war to subordinate blacks should now be used to up-
lift them and "that to ignore race . .. was to confirm existing patterns
of race discrimination," they were defeated by the majority of Repub-
licans, who believed that continuing to use race, "even for the purpose
of preventing discrimination, was inconsistent with equality before the
law."'7 All further Freedmen's Bureau and civil rights acts, beginning
with the Freedmen's Bureau Act of 1865, referred to "refugees and
freedmen." When the Thirty-eighth Congress adjourned in March
16 Ibid., 958-59 (Grimes, February 21, 1865); 984 (Hale, February 22, 1865); 985 (Lane,
February 22, 1865); 990 (February 22, 1865); and 1348 and 1402 (March 3, 1865).
17 Herman Belz, A New Birth of Freedom; The Republican Party and Freedmen's Rights,
1861 to 1866 (Westport, Conn., and London, 1976), 149-50.

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1865, rapidly changing circumstances indicated that a revised Freed-

men's Bureau would be necessary. The Republicans had won the elec-
tions of 1864, state legislatures were ratifying the Thirteenth Amend-
ment, and the war was clearly nearing an end. When Congress chose
a policy to address postwar conditions, it continued this policy of in-
clusiveness, with no distinctions based on color.'8
A bill for a Freedmen's Bank, introduced in 1865, again demon-
strated Congress's misgivings about racial classifications. In granting
a charter to a corporation designed to aid freedmen exclusively, Con-
gress appeared to endorse a race-conscious policy similar to late twen-
tieth-century affirmative action, at least with regard to private endeav-
ors like this bank. But it is worth keeping in mind that in mid- 1865 the
status of slaves freed by the Emancipation Proclamation and of slaves
in the loyal border states was not settled. It was possible that the freed-
people would attain only a quasi-citizenship rather than equal citizen-
ship. As Chief Justice Roger B. Taney had opined in the Dred Scott
decision, the Constitution provided that blacks could be state citizens
only but not national citizens. Interestingly, the act to incorporate the
Freedmen's Bank did not refer to citizens, but only to inhabitants of
the United States. Senator Henry Wilson, who drafted the bill, was al-
ready moving away from a racially exclusive basis for Reconstruction
legislation. A draft of the bill originally established the bank "by or on
behalf of persons heretofore held in slavery in the United States, and
other persons of African descent." Wilson struck out the phrase "and
other persons of African descent." Likewise, the original draft provid-
ed for the disposition of the funds of deceased members "for the edu-
cation and improvement of persons of African race or descent." Here
Wilson added the phrase "heretofore held in slavery in the United
States." The bank was not a privilege granted to a racial group to
atone for racial discrimination by another group, but a remedial mea-
sure granted to individuals who had sustained the injury of slavery. As
in the drafting of the Freedmen's Bureau Act, Congress carefully
avoided racially exclusive language.'9
18 Although Eric Schnapper notes that "historians of this period have not regarded the inclu-
sion of white refugees as a significant impetus in the adoption of the Act" (Schnapper, "Affir-
mative Action," 760n35, citing a 1904 volume on the Freedmen's Bureau), Herman Belz in "The
Freedmen's Bureau Act of 1865 and the Principle of No Discrimination According to Color"
(Civil War History, XXI [September 1975], 197-217) argues that the inclusion of white refugees
was crucial to the adoption of the act. For similar conclusions, see Nieman, Promises to Keep,
57; and Foner, Reconstruction, 69.
19 S. 443, Original Senate Bills, Box 6 and Senate Bills Acted Upon, Box 12, Records of the
U.S. Senate, Record Group 46 (National Archives; hereinafter cited as RG 46); Walter L. Flem-

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Because of this racial classification many depositors did not receive

congressional compensation after the Freedmen's Savings Bank failed
in 1874. Shortly after its incorporation, whites became major officers
of and depositors in the bank, and Congress's lax supervision of the
bank was largely the cause of its failure. Members of Congress felt
morally obligated to compensate the original depositors for their loss-
es but did not want to reward speculators. A bill limiting relief to de-
positors "of African descent" passed the Senate in 1888, over the ob-
jections of Vermont Republican George F. Edmunds and North Car-
olina Democrat Zebulon B. Vance. Edmunds was eager to "get rid of
the 'race' business" while still doing justice to the original depositors.
With bitter memories of so-called black Reconstruction, Vance argued
that to limit compensation to the freedmen treated them as if they were
still wards of the government rather than citizens. He claimed that the
bill made "a distinction in violation of the Constitution of the United
States, which says that no distinction shall be made on account of
race, color, or previous condition of servitude." The bill did not pass
the House.20
After the rebellion ended, the Republicans debated a more compre-
hensive plan of Reconstruction. In addition to being shaped by con-
cerns of constitutional theory and practical politics, Republican policy
toward freedpeople was heavily influenced by the behavior of the re-
stored southern governments, many of which adopted black codes that
denied fundamental rights of liberty and property. The remarkably
simple Freedmen's Bureau Act of 1865 was inadequate to the task of
implementing the Republicans' policy toward freedpeople. Establish-
ing the bureau in the War Department, the act provided only for relief
and the rental of abandoned land. The commissioners were directed to
issue "provisions, clothing, and fuel ... needful for the immediate and
temporary shelter and supply of suffering refugees and freedmen" and
"to set apart for the use of loyal refugees and freedmen such tracts of
ing, The Freedmen's Savings Bank: A Chapter in the Economic History of the Negro Race
(Chapel Hill, 1927); and Carl R. Osthaus, Freedmen, Philanthropy, and Fraud: A History of the
Freedman's Savings Bank (Urbana, Chicago, and London, 1976), 3-6. The argument that all of
the Reconstruction Congress's freedmen's legislation was race-specific and unrelated to identi-
fied victims of specific discrimination is a vast exaggeration. (See Jones, "Rise and Fall of Af-
firmative Action," 348.) It is doubtful that any of the legislation can be so characterized.
20 Thomas P. Kane, The Romance and Tragedy of Banking: Problems and Incidents of Gov-
ernmental Supervision of National Banks (New York, 1923), 83; Congressional Record, 50
Cong., 1 Sess., 2211 (Edmunds, March 19, 1888) and 6609-10 (Vance, July 21, 1888); and
House Reports, 50 Cong., 1 Sess., No. 3139: Depositors of the Freedmen's Savings and Trust
Company (Serial 2605, Washington, 1888).

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land within the insurrectionary states as shall have been aban-

doned ... ." In 1866 Republicans introduced bills that would extend
the bureau's operations. Congressman Ignatius Donnelly of Minneso-
ta, for example, offered a resolution at the opening of the Thirty-ninth
Congress to establish a Bureau of Education, "whose duty it shall be
to enforce education, without regard to race or color, upon the popula-
tion of all such States as shall fall below a standard to be established
by Congress ... ."21 When Republicans introduced a new Freedmen's
Bureau bill and a civil rights bill in January 1866, Senator William M.
Stewart of Nevada expressed the desire of the Republicans "to enter
upon any practical legislation that shall help all classes and all suffer-
ers, without regard to color-the white as well as the black."22 Con-
gress did so in S. 60, the Freedmen's Bureau Act of 1866. The bu-
reau's new charter of 1866 also launched it into the new areas of civil
rights protection and education.
Lyman Trumbull of Illinois introduced the new Freedmen's Bureau
bill into the Senate on January 12, 1866. He noted that "its provisions
are temporary; but there is another bill on your table, somewhat akin
to this, which is intended to be permanent, to extend to all parts of the
country, and to protect persons of all races in equal civil rights." The
1866 bill followed the act of 1865 in bureau structure, relief, and
rentals. It added a section securing permanent title to land confiscated
by General William T. Sherman around Savannah, allowed three mil-
lion acres of public land in Florida, Mississippi, and Arkansas to be
homesteaded, and directed the bureau to "provide or cause to be erect-
ed suitable buildings for asylums and schools" for "refugees and
freedmen dependent on the Government for support." Another section
guaranteed civil rights to "negroes, mulattoes, freedmen, refugees, or
any other persons" and prohibited any state criminal law from punish-
ing such persons more severely than white persons.23
In spite of the even-handed language of the bill, congressional De-
mocrats from the border states insisted that the bill revealed a general
pro-black policy by the Republicans. In debate on the bill some of its
opponents ignored or disregarded its clearly stated language. For ex-
21 Freedmen's Bureau Act of 1865 in The Statutes at Large ... of the United States, XIII
(1865), 507 (quotations on p. 508); and Cong. Globe, 39 Cong., 1 Sess., 60 (Donnelly, Decem-
ber 14, 1865).
22 Cong. Globe, 39 Cong., 1 Sess., 297 (January 18, 1866).
23 Ibid., 209-10 (January 12, 1866) (third and fourth quotations on p. 209; second on p. 210);
322 (Trumbull, January 19, 1866); and Senate Exec. Docs., 39 Cong., 1 Sess., No. 25: Veto Mes-
sage (1866) (Serial 1237).

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ample, Congressman Nelson Taylor of New York, referring to the sec-

tion of the bill that plainly stated that land should be set aside for
"freedmen and loyal refugees, male or female," said, "I should like to
know the necessity of setting apart three million acres of land for the
exclusive use of the freedmen . . . ." Though he claimed to favor
equality before the law, Taylor warned that this bill might "overleap
the mark and land on the other side, and before we are aware of it, not
have the freedmen equal before the law, but superior." Objections to
the bill were also based on the impression that, in fact, white refugees
no longer existed.24 Congressman Burwell C. Ritter of Kentucky told
his colleagues, "I suppose that there is now none of that class any-
where in the United States." Ritter admitted that "it is true they speak
of loyal refugees; in this they may include white persons. But I pre-
sume that we all know that none of this class will be there."25 Ritter's
remarks disregarded evidence of great suffering among southern
whites.
Even at this early date, however, the bill's proponents could point
to the actual performance of the Freedmen's Bureau as racially neu-
tral. Congressman Josiah B. Grinnell of Iowa stated, "It is said that
this is a partial bill, and I have this to say in regard to the objection:
that during the administration of General Fisk, in the district of Ten-
nessee and Kentucky, seven and a quarter greater supplies were meted
out to the white people under his bureau than to the colored freed-
men." Grinnell argued that the object of the bill "is to reach those in
want, the white mountain refugee and the ex-colored soldier and
slave, with his family ...."26 Congressman Samuel W. Moulton of
Illinois declared that "the very object of this bill is to break down the
discrimination between whites and blacks." The main problem was
the southern black codes, which "do not operate against the white
men."27 Unionists as much as freedpeople needed the protection of th
Freedmen's Bureau until the southern state governments passed im-
partial legislation for loyal white southerners. Congressman Samuel
McKee, a Kentucky Unionist, said, "Let them pass laws and enforce
24 Cong. Globe, 39 Cong., 1 Sess., 544 45 (January 31, 1866) (third quotation on p. 544; first
and second on p. 545). Opponents of Reconstruction legislation tried to conflate disqualifications
of rebels with disqualifications of all whites. See, for example, the remarks of Senator Thomas
A. Hendricks of Indiana in Cong. Globe, 39 Cong., 1 Sess., 372 (January 23, 1866).
25 Ibid., 634 and 635 (February 3, 1866).
26 Ibid., 652 (February 5, 1866).
27 Ibid., 632 (February 3, 1866).

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them in the courts giving to all men the same privileges to protection
in civil tribunals. Until that is done we need the law."28
The strongest opponents of the Freedmen's Bureau had an obses-
sion with race that enabled them to see partiality toward African
Americans where none existed or where protection was provided
against state laws that excluded blacks from the legal or educational
system. In the earliest debates on the creation of a Freedmen's Bureau,
Congressman Samuel S. Cox of Ohio objected to the bureau because
he believed that its real aim was to promote miscegenation. Senator
Willard Saulsbury of Delaware, who proudly declared that his state
was the last to abolish slavery and that he himself was "one of the last
slaveholders in America," complained that "the negro is a great fa-
vorite in the legislation of Congress." His argument that whites could
not get land under the act was a misrepresentation similar to Taylor's.
Congressman Francis C. LeBlond of Ohio claimed that the Freed-
men's Bureau Act of 1866 was "class legislation" because it fed and
clothed colored people without doing so for all widows and orphans.
His language manifested the bugbear of these negrophobes: "We un-
derstand this much, and this alone," he said of H.R. 613, "that there is
'nigger' in its head, 'nigger' in its bowels, and 'nigger' in its heels."29
Garrett Davis of Kentucky led the fight in the Senate against S. 60,
the Freedmen's Bureau Act of 1866. Davis spoke at length against the
bill because it protected the civil rights of blacks. Concerned especial-
ly about miscegenation and rape, Davis objected to the bill on the
grounds that it would invalidate Kentucky laws prohibiting interracial
marriage and prescribing severer punishment for black-on-white rape
than for rape committed by whites.30 Another opponent, Senator
28 Ibid., 654 (February 5, 1866).

29 Ibid., 38 Cong., 1 Sess., 708 (February 10, 1864); 39 Cong., 1 Sess., 321 (Saulsbury, Jan-
uary 19, 1866), 362 (Saulsbury, January 23, 1866), 2780 (LeBlond, May 23, 1866) and 3562
(LeBlond, July 3, 1866). If statements such as those made by Cox, Saulsbury, and LeBlond are
to be used by historians, they must be used carefully. It is generally not sound to give much con-
sideration to the opponents of legislation when looking for the meaning of that legislation. As the
federal courts have stated, "If resort to legislative history is had, the statements of those who sup-
ported the legislation and secured its passage will be accepted in determining its meaning." Yet
some historians have relied on the arguments of Senator Garrett Davis of Kentucky, a leading
opponent of the Freedmen's Bureau Act of 1866, and his colleagues when pointing to pro-black
preference in Reconstruction legislation. It is questionable to use the arguments of these men,
who wanted to put the legislation in the worst possible light, to arrive at the original intent of the
law. Statements by the opponents of a bill "cannot be relied upon as indicative of legislative in-
tent" in the federal courts. Historians likewise should hold such statements to at least this level
of scrutiny. See Schnapper, "Affirmative Action," especially 756-57 and 763-67; and Raoul
Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cam-
bridge, Mass., and London, 1977), 157n2 (quotations.)
30 Cong. Globe, 39 Cong., 1 Sess., 397 (January 24, 1866) and 418 (January 25, 1866).

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Edgar Cowan of Pennsylvania, feared that the bill would prohibit seg-
regated schools in his state. "This is a bill for the abolition of all laws
in the States [rather than just the southern black codes] which create
distinctions between black men and white ones," he said.3'
Sponsors of Freedmen's Bureau legislation refuted Davis and the
other racists with the general principle that American government
should be blind to race and color. Senator Lot M. Morrill of Maine ar-
gued that "there is nothing more inaccurate" than to say that the Unit-
ed States was set up exclusively by race. "I deny that Government was
organized in the interest of any race or color, and there is neither
'race' nor 'color' in our history politically or civilly-not a bit of it."
Davis's fears that the Republicans were turning the white man's coun-
try into the black man's country were unfounded. "Is there any 'color'
or 'race' in the Declaration of Independence?" Morrill asked. "'All
men are created equal' excludes the idea of race or color or caste."32
The Freedmen's Bureau acts merely corrected the denial of equality
involved first in slavery and then in the black codes. While Morrill ar-
gued from fundamental principles of American national identity, Ly-
man Trumbull answered the critics on the more concrete basis of the
bill's actual provisions. He responded to Davis's objections, declaring,
"All this bill provides for is that there shall be no discrimination in
punishments on account of color; and unless the Senator from Ken-
tucky wants to punish the negro more severely for marrying a white
person than a white for marrying a negro, the bill will not interfere
with his [antimiscegenation] law." The proponents of the bill denied
that it was racially exclusive in any way, and the new Freedmen's Bu-
reau Act of 1866 passed the Senate on January 25 by a 37-to-10
vote.33
In the House, Thomas D. Eliot made a similar defense of the racial
inclusiveness of the bill. Congressman Green Clay Smith of Kentucky
opposed the bill because he thought that the bureau's only real con-
cern was freedmen, and he argued that only freedmen had access to
confiscated land. Eliot replied, "The object of this bill is to place the
refugees-that is to say the loyal white men who have fled from their
homes because of the rebellion-upon the same footing with the
freedmen as to the care and protection of the Government." He further
stated "that there is no distinction made in this bill between the rights
of freedmen and of refugees under it. They are treated alike from the
31 Ibid., 603 (February 2, 1866).

32 Ibid., 570-71 (February 1, 1866).
33 Ibid., 420-21 (January 25, 1866).

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first to the last." Finally, Eliot cited reports of the Bureau in 1865
showing that comparable numbers of whites and blacks had been
treated by Freedmen's Bureau activity. The bill quickly passed the
House, on February 6, 1866, by a vote of 136 to 33.34
In both chambers, opponents challenged the Freedmen's Bureau as
racially preferential. The bill's sponsors denied the charge unequivo-
cally, defending the bill on the principle of "no distinction of color"
and disavowing any principle of "benign classification." At no time
did a Republican assert or articulate the principle of racial preference.
The opponents of legal equality argued, for racist reasons, that the bill
created so-called benign classification on behalf of blacks. At the
same time, others contended that the civil rights provisions of the
Freedmen's Bureau and the civil rights acts would strike down state
laws that imposed milder punishments on black lawbreakers, out of
consideration for the weak and feeble nature of blacks. Representative
George S. Shanklin of Kentucky noted that "any discrimination be-
tween a white man and a negro may be so punished. The discrimina-
tion may be in favor of the negro, as is the case in some respects un-
der the laws of Kentucky." Likewise Representative Charles A. El-
dridge of Wisconsin argued that "in many instances it might be just
and proper to inflict a less punishment upon them for certain crimes
than upon men of intelligence and education, whose motives may
have been worse."35 Shanklin and Eldridge saw that the legal pater-
nalism of some states, based on the assumption of Negro inferiority,
would, like Davis's race-conscious rape law, be eliminated by the re-
quirement of civil equality.
President Andrew Johnson vetoed the 1866 extension of the Freed-
men's Bureau, arguing that existing legislation was sufficient and that
Congress should not institutionalize and make permanent the practice
of relief and military justice. Johnson seemed willing to accept the
black codes of the southern states and their denial of civil rights.
Above all, he was anxious to have representatives of the southern
states readmitted to Congress.36 These plans clashed with those of the
Republicans, who knew they had to secure the freedpeople's civil
rights before the southern states were readmitted. They were unable,
however, to override the president's veto of S. 60.
In 1866 Congress passed H.R. 613, a new Freedmen's Bureau bill,
in response to Johnson's veto of S. 60. Its main purpose was to give
34 Ibid., 516 (January 30, 1866).

35 Ibid., 639 (February 3, 1866) and 1155 (March 2, 1866).
36 Senate Exec. Docs., 39 Cong., 1 Sess., No. 25: Veto Message (1866), pp. 1-8.

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the Freedmen's Bureau a legal basis for operation in peacetime since

the original act had ordained that the bureau cease to exist with the
end of the war. H.R. 613 extended the bureau for two years, for the
benefit of "all loyal refugees and freedmen." It also provided for the
distribution of up to forty acres of land to "the loyal refugees and
freedmen." Further, it directed the bureau to provide educational facil-
ities for the freedpeople until the states "made provision for the edu-
cation of their citizens without distinction of color." The language of
this bill expressed Congress's intention to provide relief on a racially
neutral basis and to protect the freedmen when state legislation dis-
criminated against them in specific or express terms.37
Congress overrode Johnson's veto of the second Freedmen's Bu-
reau bill and proposed to discontinue the bureau within two years, in
1868, except in areas where the safety and education of freedpeople
were not secure. At this time Eliot continued to defend the bureau's
protection of "loyal men, whether white or black." He pointed to the
relief work of the Bureau to show opponents "that in the administra-
tion of the affairs of the bureau no regard has been paid to color." Re-
calling Schenck's removal of racial preference from the original act,
he said this was the "excellent suggestion" that helped bring the bu-
reau into being. "From the beginning the thoughtful care of the bureau
has been extended to the loyal white who stood by his Government
when traitors would have destroyed it, and to the faithful black, at all
times loyal to the Union," Eliot observed. The second Freedmen's Bu-
reau bill provided for continuation of the bureau wherever states con-
tinued to make legal disqualifications (as in education and criminal
law) based on color. Monies for education were still to apply to "the
education of freedmen and refugees." This bill became law without
Johnson's signature.38
The Freedmen's Bureau was by this time mainly concerned with
education. Relief was no longer urgent, land redistribution and labor
relations were being established, and civil rights had been provided
for in the Civil Rights Act and Fourteenth Amendment. Several states
(and the District of Columbia) continued to organize schools on the
basis of race. H.R. 1486 terminated the Freedmen's Bureau and di-
rected its successor agency, the Bureau of Education, to establish
37 Cong. Globe, 39 Cong., 1 Sess., 2772 (May 23, 1866); and H.R. 613, Box 10, RG 46.
38 Cong. Globe, 40 Cong., 2 Sess., 1813 (first quotation), 1814 (second and third quotations),
1815 (fourth quotation) (March 11, 1868) and 3928 (July 10, 1868); H.R. 598 (1868), Box
40A-B 1, Records of the U.S. House of Representatives, Record Group 233 (National Archives;
hereinafter cited as RG 233), section 3 (last quotation); and George R. Bentley, A History of the
Freedmen's Bureau (Philadelphia, 1955), 140.

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"common schools among freedmen and refugees," but this language

was amended, directing the bureau in general to "establish common
schools." Thus, in 1870, when the officers of Wilberforce University
petitioned Congress for fifty thousand dollars, they duly noted that,
"though designed for the special education of colored youth, its char-
ter prohibits all distinctions on account of race or color among
trustees, faculty, or students."39
For three years the supporters of the Freedmen's Bureau had enact-
ed legislation that included not only freedpeople but also white
refugees, and they repeatedly defended their acts against accusations
of racial classification. Nevertheless, suggestions have been made that
the Freedmen's Bureau was administered with racial partiality; how-
ever, reports of the Freedmen's Bureau provide further evidence that
Republicans intended to establish a racially impartial civil rights poli-
cy.40
First, congressional supporters of the Freedmen's Bureau frequent-
ly used Freedmen's Bureau reports in debate to buttress their claims of
racial equality. For example, Congressman John W. Chanler, Democ-
rat of New York, charged that "this present bill is to secure the protec-
tion of Government to the blacks exclusively, notwithstanding the ap-
parent liberality of the measure to all colors and classes." He claimed
that "General Howard's report establishes the fact that the present bu-
reau gave most of its aid exclusively to the negro freedmen."4' Lyman
Trumbull answered this charge by citing a report from General Clin-
ton Fiske, "in refutation of the assumption in this message [Johnson's
veto of S. 60] that the bill is intended to provide for the education and
support of four million black people." Eliot's testimony for the 1866
bill included his understanding that "as many refugees as freedmen
have been cared for." Defending the 1866 act, Eliot stated that "in ref-
erence to the States of Alabama and Arkansas and Missouri especially
the records of the bureau will show that larger amounts have been at
times appropriated to the white refugees than have been to freed-
men."42
39 H.R. 1486 (1870), Box 40A-B1, RG233: and Senate Reports, 41 Cong., 2 Sess., No. 121
(1870) (Serial 1409).
40 Eric Schnapper, discussing the Freedman's Bureau Act of 1866, notes that "Although S. 60
made no significant racial distinctions on its face, opponents and supporters generally viewed it
as largely, if not exclusively, for the assistance of freedmen." ("Affirmative Action," 763.) In
fact, on its face S. 60 made no racial distinctions whatsoever, significant or insignificant.
41 Cong., Globe, 39 Cong., 1 Sess., Appendix, 78 (February 3, 1866).
42 Ibid., 940 (February 20, 1866), 516 (January 30, 1866), and 40 Cong., 2 Sess., 1814
(March 11, 1868).

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The reports of the bureau show a consistent adherence to the racial-

ly impartial rules laid down by Congress. One of the first reports to
Congress spoke approvingly of the Nashville Provident Association, a
benevolent association conducted by Nashville blacks that relieved
"the suffering poor without distinction of color, and its daily reports
exhibit that a greater number of white than of colored persons are its
beneficiaries."43 The assistance given to white refugees is demonstrat-
ed most clearly with regard to issuing rations, fuel, clothing, and the
like. Bureau reports were unusually scrupulous in counting by race
when doling out rations. Every report indicates that white refugees
benefited from relief. A Freedmen's Bureau report filed in autumn
1866 listed 166,589 whites and 72,115 blacks receiving rations in Al-
abama. Hospitals there received 3,801 freedpeople and 305 refugees.
In the Arkansas, Missouri, and Indian Territory district 27,203 white
refugees received rations compared to 6,412 freedpeople, while 161
blacks and 19 whites were admitted to hospitals and orphan asylums.
In Georgia over half a million rations were issued to freedpeople and
177,942 to whites; almost four thousand freedpeople were transported
by the Bureau and only 79 whites. The total for the first ten months of
Freedmen's Bureau operation was two million rations for refugees and
six million for freedpeople. The Bureau spent $64,000 on transporting
freedpeople and $10,000 on transporting refugees.44 In statistical
terms, freedpeople derived more benefit from Freedmen's Bureau op-
erations than refugee whites. It is clear, however, that the bureau op-
erated on a racially impartial basis.
One may well inquire into the Republicans' motives for pointing
out the assistance given by the bureau to southern whites. Most relief
for whites took place in the areas that had been most loyal to the
Union, especially in border states and in the high country. The bureau
was probably particularly attentive to those whites who were pre-
sumed to be loyal, as part of northern Republican desire to build up a
southern Republican party of upcountry whites and freedmen. How-
ever, the potential for southern political transformation based on a loy-
alist-freedman alliance nurtured by Washington was a radical idea and
was unsustainable without widespread confiscation and redistribution
of land. The failure of Congress to enact such a provision in the Freed-
43 Senate Exec. Docs., 39 Cong., 1 Sess., No. 27: Reports of Assistant Commissioners of the
Freedmen's Bureau, 1865-66 (1866) (Serial 1238), p. 13.
44 Reports of Freedmen's Bureau Commissioners and Laws in Relation to the Freedmen
found in Senate Exec. Docs., 39 Cong., 2 Sess., No. 6 (Serial 1276), pp. 9, 17, 18, 22, 23, 57, and
58 and in House Exec. Docs., 39 Cong., 2 Sess., No. 7 (Serial 1287), p. 5.

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men's Bureau Act of 1866 foreclosed this possibility. Again, the mod-
erate-conservative Republicans were too committed to property rights,
limited government, and federalism to countenance this kind of state
intervention.45 Extensive Freedmen's Bureau relief to white refugees
in 1865 was provided primarily because of the war's devastation, but
it may also be seen as an element in the early, abortive attempt to build
a Republican base in the South. Later, moderate Republicans repudi-
ated confiscation in order to reassure ex-Confederates that their rights
were secure.46
The bureau's main concern with regard to civil rights was to protect
loyalists and freedmen against state legal disabilities. Bureau agents
told the freedmen, "Until the enactment and enforcement of State laws
giving you full protection in person and property, impartial justice will
be secured to you by the strong arm of the national government."47
The bureau would not interfere "whenever any judicial officer of the
State arraigns and tries freedmen for alleged faults and shows by his
proceedings that he is disposed to deal as justly with this class of per-
sons as with white persons .... "48 Generally, bureau officers adopted
state laws as rules of adjudication, "except so far as those laws make
a distinction on account of color."49 In 1866 Louisiana admitted
blacks to the courts as plaintiffs and witnesses, so the bureau discon-
tinued its courts in that state. Alabama, on the other hand, continued to
make distinctions based on color, so Freedmen's Bureau courts con-
tinued there.50
The bureau usually interfered in state judicial proceedings only
when a state's laws expressed discrimination against blacks or Union-
ists, and the legal disabilities of blacks were easier to recognize be-
cause they were written into the black codes.5' Indeed, the freedmen
45 Richard F. Bensel, Yankee Leviathan: The Origins of Central State Authority in America,
1859-1877 (Cambridge, Eng., and other cities, 1990), 191 and 354.
46 Benedict, Compromise of Principle, 259-60; and Michael Perman, The Road to Redemp-
tion: Southern Politics, 1869-1879 (Chapel Hill and London, 1984).
47 Senate Exec. Docs., 39 Cong., 1 Sess., No. 27: Reports of Assistant Commissioners of the
Freedmen's Bureau, 1865-66, p. 5 (quotation); and Robert J. Kaczorowski, The Politics of Judi-
cial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876
(New York, 1985), 38;
48 House Exec. Docs., 39 Cong., 1 Sess., No. 70: Orders Issued by the Freedmen's Bureau,
1865-66 (1866) (Serial 1256), p. 21.
49 Ibid., 41 (quotation); and Senate Exec. Docs., 39 Cong., 2 Sess., No. 6: Reports of Freed-
men's Bureau Assistant Commissioners and Laws in Relation to the Freedmen, pp. 3-4.
1865-66, pp. 27 and 41.
51 Senate Exec. Docs., 39 Cong., 2 Sess., No. 6: Reports of Freedmen's Bureau Assistant
Commissioners and Laws in Relation to the Freedmen (1866), pp. 170-230, for Oliver 0.
Howard's useful compilation of southern black codes.

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themselves wished to be judged in state courts operating under

nondiscriminatory laws outside the jurisdiction of the Freedmen's Bu-
reau. In April 1866 a former slave said, "When the people of the State
of North Carolina will give up to allow us justice, that is, to give us an
equality of rights to protect us, we can get along without the bu-
reau . . . ." A few months later the assistant commissioner for North
Carolina, satisfied that the new state constitution provided for equali-
ty before the law, referred all cases to the civil authorities. In Florida
the new state constitution provided "that all the inhabitants of the state
shall enjoy the rights of person and property without distinction of
color," but the right of Florida blacks to bear arms continued to be
abridged. In October the bureau prevailed upon the governor and at-
torney general to enforce the constitutional guarantee, and "since then
the negroes have been unmolested in their possession of arms." Be-
yond new state constitutions was the protection of the Civil Rights
Act, but often this was not enough. The border states especially ig-
nored the act and violated the civil rights of the freedpeople. Maryland
refused to replace its old apprentice system, which imposed especial-
ly onerous conditions upon blacks. This sort of recalcitrance under-
scored the need for a permanent, national civil rights guarantee, in the
form of a constitutional amendment. 52
The administration of justice in the bureau was limited by inade-
quate resources and personnel and, most particularly, by presidential
obstruction. If a state's constitution and laws were formally neutral
with regard to race, the bureau was supposed to suspend its activity in
the area of criminal and civil justice. But in some instances bureau
agents, recognizing that the enactment of formally race-neutral law
did not of itself result in substantial racial justice, continued to work
on behalf of freedpeople after such laws were enacted. In other places,
the bureau paid little attention to the grievances of freedpeople despite
the continued operation of laws that made explicit racial distinctions.
On balance, however, the Freedmen's Bureau provided the best
chance for the freedpeople to obtain justice.53 Occasionally bureau of-
ficers went beyond merely enforcing the principle of "no distinction
of color" in criminal justice. In North Carolina, the bureau set aside
whipping as a legal punishment for larceny because it was a "relic of
52 House Exec. Docs., 39 Cong., 1 Sess., No 120: Message of President on Refugees, Freed-
men, and Abandoned Lands (1866) (Serial 1263), p. 41 (quotation); and Senate Exec. Docs., 39
Cong., 2 Sess., No. 6: Reports of Freedmen's Bureau Assistant Commissioners and Laws in Re-
lation to the Freedmen (1866), pp. 102, 43 (Florida), and 92 (Maryland).
53 Benedict, Compromise of Principle, 249-51; Kaczorowski, Politics of Judicial Interpreta-
tion, 36; and Foner, Reconstruction, 149-50.

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slavery," even though "the law which punishes larceny, it is true,

makes no distinction between whites and blacks."54 Generally, how-
ever, the Freedmen's Bureau acted to combat race-conscious state law
and its enforcement. Where state law excluded blacks or imposed sev-
erer pains and penalties upon them, the bureau enforced the law in a
racially neutral way until the law was changed or overridden by na-
tional civil rights legislation. The biased administration of formally
race-neutral law remained a problem, but in applying the rule of col-
or-blindness to state law, the bureau adopted what it believed was na-
tional policy devised by Congress.55 Bureau officials recognized that
their mission was not permanent. "Sooner or later the colored people
must be left to the control of the state authorities," an assistant com-
missioner noted.56
The determination of the bureau to return the freedpeople to the
control of state governments under the protection of color-blind state
constitutions would be one of the fatal limitations of Reconstruction
policy. This policy may be seen as an expedient answer to a vexing,
perennial constitutional problem: how, in a system of federalism and
limited central government, to protect minorities against the unequal
administration of formally neutral law.57 It is clear that the bureau was
in accord with the dominant Republican "idea of federalism which re-
garded states' rights and local self-government as the truest and most
effective expression of American nationality."58 The Freedmen's Bu-
reau experience is a reminder that federalism was at the center of the
problem of Reconstruction.59
Although the principal object of the postwar Freedmen's Bureau
was to provide facilities for blacks who were excluded from public ed-
ucation in southern states, it also extended its efforts into a program of
54 House Exec. Docs., 39 Cong., 1 Sess., No. 120: Message of President on Refugees, Freed-
men, and Abandoned Lands, p. 9. Whites convicted of larceny in Freedman's Bureau courts
could not be whipped, as Army courts martial proscribed whipping. Donald G. Nieman, To Set
the Law in Motion: The Freedmen's Bureau and the Legal Rights of Blacks, 1865-1868 (Mill-
wood, N.Y., 1979), 90-91.
55 Nieman, To Set the Law in Motion, 110 and 136; Nieman, Promises to Keep, 69; and Kac-
zorowski, Politics of Judicial Interpretation, 31-37.
Commissioners and Laws in Relation to the Freedmen (1866), p. 43.
57 Foner, Reconstruction, 149-50.
58 Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism in the Civ-
il War Era (New York and London, 1978), 140.
59 Maltz, Civil Rights, the Constitution, and Congress, 30; and Kaczorowski, Politics of Ju-
dicial Interpretation, xi.

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education for children of both races. Congressman Lovell H.

Rousseau of Kentucky reported that the Freedmen's Bureau permitted
black children to attend Charleston, South Carolina, city schools,
which the bureau administered. The city authorities had failed to make
any provision for the education of black children so the bureau had
taken over school administration, and the white people of Charleston
refused to send their children to the Freedmen's Bureau schools. "Un-
less they mix up white children with the black, the white children can
have no chance in these schools for instruction," Rousseau com-
plained.60 An 1865 Freedmen's Bureau report directed that "school
buildings should not be exclusively for freedmen; for any aid given to
educate the numerous poor white children of the south will be most
important, and conducive to the object our government has in view; I
mean the harmony, the elevation, and prosperity of our people."6' An
assistant commissioner's appeal to the Georgia clergy noted, "Al-
though my labors are directed, legitimately, to the education of freed-
men, they will not be confined exclusively to them, but will be so ex-
tended as to embrace all persons who may need, or can be benefited
by my influence ...." Likewise the bureau extended apprenticeship
laws to black children under the same terms as applied to white chil-
dren, without any of the laws' former restrictions or special burdens.
A report from Alabama in 1866 declared that bureau policy was to
welcome all pupils into its schools.62
As in the administration of criminal justice, most of the practical
benefit of Freedmen's Bureau education programs went to blacks be-
cause the states had previously made no provision for their education.
In both of these areas Congress and the Freedmen's Bureau were con-
cerned not so much with the quality or substance of the due process
guaranteed or the education provided as with the elimination of race
as a qualification or basis of classification.63 Lyman Trumbull made
60 Cong. Globe, 39 Cong., 1 Sess., Appendix, 71 (February 3, 1866).

61 House Exec. Docs., 39 Cong., 1 Sess., No. 11: Message from the President Transmitting
Report of Commissioner of Bureau of Refugees, Freedmen, and Abandoned Lands (1865) (Ser-
ial 1255), p. 34.
1865-66, p. 65; and Senate Exec. Docs., 39 Cong., 2 Sess., No. 6: Reports of Freedmen's Bureau
Assistant Commissioners and Laws in Relation to the Freedmen (1866), pp. 12 and 92; and Sen-
ate Misc. Docs., 40 Cong., 2 Sess., No. 24: Opinion of Maryland Attorney General (1868).
63 Earl Maltz, "Reconstruction without Revolution: Republican Civil Rights Theory in the
Era of the Fourteenth Amendment," Houston Law Review, XXIV (March 1987); Maltz, "The
Concept of Equal Protection of the Laws-A Historical Inquiry," San Diego Law Review, XXII
(May/June 1985); and Maltz, Civil Rights, the Constitution, and Congress, 157-58.

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this point in defending the Civil Rights Act of 1866. "It may be said
that it is for the benefit of the black man because he is now in some
instances discriminated against by State laws; but that is the case with
all remedial statutes. They are for the relief of the persons who need
the relief, not for the relief of those who have the right already; and
when those needing the relief obtain it, they stand upon the precise
footing of those who do not need the benefit of the law."64 When the
states had provided for the education of blacks, the bureau's work
would be done. A Freedmen's Bureau report in 1866 noted that no Ne-
gro school existed in the state of Texas before the bureau's arrival and
that "when the State of Texas decides to inaugurate and sustain a sys-
tem of public instruction for all, these schools can be transferred to
civil rule without suspension and without [sic] scarcely a shock."65
Congressman James J. Winans of Ohio offered an amendment to an
1870 bill to establish a federal Bureau of Education in place of the ex-
piring Freedmen's Bureau providing that leftover bureau money was
"to be expended exclusively in aiding existing institutions of learning
for the education of colored pupils, and in establishing and promoting
public schools among freedmen and refugees." This amendment,
which contained a race-conscious element, was defeated by a vote of
35 to 75. Instead, the bill left bureau funds to any southern state "as
shall have made provision for the education of their children without
distinction of color."66 Again, the remedy for racial discrimination was
not for Congress to step in with race-based remedial legislation, but
rather for Congress to encourage, or where necessary compel, the pas-
sage of color-blind state law.
The Republicans' purpose and object was to provide absolute
equality in a limited number of fundamental rights, and the moderate-
conservative Republicans who controlled Reconstruction lawmaking
held a limited view of the scope of civil rights. Though the concept of
civil rights was in flux and had expanded from the destruction of slav-
ery in the Thirteenth Amendment to the guarantee against discrimina-
tion in public accommodations in the Civil Rights Act of 1875, the
Republicans generally held to a concept of limited absolute equality.
The main issue of the years from 1863 through 1870 was whether vot-
64 Cong. Globe, 39 Cong., 1 Sess., 1758 (April 4, 1866).

Commissioners and Laws in Relation to the Freedmen (1866), pp. 148 and 150 (quotation).
66 Cong. Globe, 41 Cong., 2 Sess., 2295 (March 30, 1870), 2320 (March 31, 1870) (first qu
tation), and 2430-31 (April 5, 1870).

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ing was included in the civil rights agenda. Along with their reluc-
tance to press military rule and their regard for local self-government,
the concept of "limited absolute equality" as the basis of civil rights
shaped Republican legislation.67
One area in which the Freedmen's Bureau did not treat freedmen
equally, and did operate under a sort of racial classification, was in la-
bor relations. Even with the same right as white men to "make and en-
force contracts" guaranteed by the Freedmen's Bureau and civil rights
acts, the agents of the Freedmen's Bureau made contracts for the
freedmen, insisted that they be in writing and for no longer than one
year, and imposed special punishments for freedmen who abrogated
their contracts. Though such rules were not present in the Freedmen's
Bureau acts, the agents of the bureau applied them.68 Senator Thomas
A. Hendricks of Indiana, an opponent of the Freedmen's Bureau,
pointed out that legal equality was inconsistent with this practice. In
1864 he observed:
If a free white man of the North makes a contract to serve another for
a year, he has a right to make such a contract; but in his person he is not
enforced to remain in that servitude during the year; if he fails to re-
main the entire year he answers in the civil courts in damages. By this
provision [section 5 of H.R. 51], however, the slave is required to re-
main the year, and if he fails to do that duty it is the business of the su-
perintendent or overseer to call in the military force and make him
serve in person for the year.... He owns him personally for the year.
When discussing the 1866 act, Hendricks asked, "Where is the au-
thority for any officer of this Government to say that if a white man
does not serve out his contract for a year's service, somebody will put
him to work on the highways as a matter of punishment?"69
The bureau was aware of this anomaly, which was attributable to
the exigencies of the war's effects and the unsettled policy of early
67 Maltz, Civil Rights, the Constitution, and Congress, 157-58; William E. Nelson, The
Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Mass., and
London, 1988), 115-16 and 150-5 1; and Harold M. Hyman and William M. Wiecek, Equal Jus-
tice Under Law: Constitutional Development, 1835-1875 (New York and other cities, 1982),
393-400.
68 Compare, for example, the Freedmen's Bureau Acts of 1865 or 1866, which say nothing
about labor contracts, with the previous versions of H.R. 51, which include the restrictive con-
tract provisions. Foner, Reconstruction, 166-67; and Nieman, To Set the Law in Motion, 62-64
and 173-74, discuss the specific performance provisions enforced by the Freedmen's Bureau.
69 Cong. Globe, 38 Cong., 1 Sess., 2972 (June 16, 1864) and 39 Cong., 1 Sess., 3840 (July
16, 1866). See also Theodore B. Wilson, The Black Codes of the South (University, Ala., 1965),
83 and 142.

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Reconstruction. In a report from Alabama later in 1866 the bureau's

assistant commissioner admitted that the system of arranging labor
contracts for the freedmen was considered wrong but necessary be-
cause of the inexperience of the freedmen. It was also intended to be
temporary, until Congress acted definitely to secure the civil rights of
the freedmen. "This system of annual contracts was regarded as a
make-shift, which it was hoped would disappear as confidence should
grow out of experience on both sides, and leave to each the benefit of
an appeal at any time to competition."70 Officials of the bureau be-
lieved that racial distinctions-even so-called benign ones such as
these-were at odds with the bureau's mission and moved quickly to
end them; and the bureau issued a circular advocating "the broad de-
mocratic idea that there should be the same code of laws for all; that
every exceptional law or regulation for the black man is but a recog-
nition of the spirit of slavery."71 Republicans were generally wary of
the idea of special "guardianship" for the freedmen because they knew
that states like Maryland and Missouri would interpret such guardian-
ship in oppressive apprenticeship laws, which differed from the black
codes of the Confederate states only in degree.72
Congress organized the Freedmen's Bureau on the principle of
racial equality and inclusiveness, and the bureau usually carried out its
duties in light of that principle. As one scholar has observed, the bu-
reau acted in accord with northern public opinion, holding "that there
should be no halfway house to freedom" and rejecting paternalistic
measures that, while protecting blacks, would restrict their freedom.73
Constitutional scruples also played a part in limiting the bureau's ac-
tivities because the bureau was a temporary, expedient, war-related
agency, not initially intended to exist past the end of the war and,
when reauthorized, not to extend past the readmission of states to the
union. Achieving permanent freedom and equal citizenship for the ex-
slaves was the purpose of the Civil Rights Act of 1866 and the Four-
teenth Amendment. It has been argued that the racial exclusiveness of
the Freedmen's Bureau acts demonstrates that the framers of the Civ-
Commissioners and Laws in Relation to the Freedmen (1866), pp. 4-6 (quotation on p. 6).
1865-66, p. 395.
72 Belz, New Birth of Freedom, 41-47, 70-74, and 98-99.
73 Nieman, To Set the Law in Motion, 53.

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il Rights Act and the Fourteenth Amendment anticipated and initiated

racially preferential law.74 The Freedmen's Bureau legislation was
written and defended in a self-consciously color-blind manner, which
indicates that the Civil Rights Act and the Fourteenth Amendment
were also based on color-blind premises. The debates on the Civil
Rights Act and the Fourteenth Amendment demonstrate the racially
impartial purposes of Republican civil rights policy.
The language of the Civil Rights Act certainly gives no indication
of racial preference but is cast completely in terms of equal rights re-
gardless of color. Still, the same critics who saw racial bias in the
Freedmen's Bureau saw it in the Civil Rights Act. The most important
of these was Andrew Johnson, who vetoed the civil rights bill because,
among other reasons, "the distinction of race and color is, by the bill,
made to operate in favor of the colored and against the white race."
Garrett Davis made Johnson's case in the Senate, arguing that the lan-
guage of nondiscrimination "is used for a purpose; it is a sort of mask
to cover partially the true beneficiaries and objects of the measure, the
negro race and their aggrandizement."75 Lyman Trumbull denied these
charges just as he had in the Freedmen's Bureau debate. He told his
colleagues to dismiss Davis's "long harangue." "With what consisten-
cy and with what face," Trumbull asked, "can a Senator in his place
here say to the Senate and the country that this is a bill for the benefit
of black men exclusively . . . when the very object of the bill is to
break down all discrimination between black men and white men?"
Trumbull was equally exasperated with Johnson's implication. "Can
human ingenuity point out wherein that section discriminates in favor
of colored persons? . . . the very object and effect of the section is to
prevent discrimination, and language, it seems to me, could not more
plainly express that object and effect." He told Davis during the de-
bate, "This bill applies to white men as well as to black men."76
Freedmen's Bureau legislation was an important first step toward
defining postemancipation questions of citizenship, and this constitu-
tional question was considered further and more fully in the debate
over the Civil Rights Act of 1866. Managed in the House by James F.
74 Schnapper, "Affirmative Action," 784.

75 Senate Exec. Docs., 39 Cong., 1 Sess., No. 31: Veto Message (1866) (Serial 1238), p. 8;
and Cong. Globe, 39 Cong., 1 Sess., Appendix, 182 (April 4, 1866).
76 Cong. Globe, 39 Cong., 1 Sess., 599 (February 2, 1866) (first and third quotations) and
1758 (April 4, 1866) (second quotation).

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Wilson of Iowa, the bill's defenders stressed its limits. Minnesota con-
gressman William Windom declared:
This, I believe, is one of the first efforts made since the formation of
the Government to give practical effect to the principles of the Decla-
ration of Independence .... If there be any reasonable objection to the
bill, it is that it does not go far enough.... [in the] protection of polit-
ical rights .... Does it give to the loyal negro any preference over the
recent would-be-assassins of the nation? Not at all .... It merely pro-
vides safeguards to shield them from wrong and ... to protect them in
the enjoyment of that lowest right of human nature, the right to exist.77
The idea of equal citizenship, embodied in the Civil Rights Act,

was the solution to the question of how to secure the liberty of freed-
people. This solution also protected southern Unionists and settled the
legal status of the former Confederates. The Emancipation Proclama-
tion applied only to slaves; the Freedmen's Bureau, to freedpeople and
loyal white refugees. The Civil Rights Act and the Fourteenth Amend-
ment extended national protection to all persons or citizens. Represen-
tative John M. Broomall of Pennsylvania saw the Civil Rights Act in
this light. It would forgive the rebels while guaranteeing that the
Union's allies in the South would not be abandoned, "and in this I will
make no distinction of caste or color either among friends or foes."78
Although the northern Republicans had been shaping a new theory
of national citizenship without racial distinction since the beginning of
the war, equal citizenship as the central goal of civil rights policy was
no foregone conclusion in 1866.79 Just as Democrats in 1864 hoped
for an end to the war and the continuation of slavery, so in 1866 they
hoped for the continued validity of the Dred Scott decision and some
kind of quasi citizenship for the freedmen. Large segments of the De-
mocratic party envisioned the freedman in a status somewhere be-
tween that of alien and that of citizen. As far as they were concerned,
Dred Scott, with its declaration that blacks could not be citizens of the
United States, remained the law of the land. Alternatives to equal citi-
zenship were articulated by the black codes and by Congress. Repre-
sentative George R. Latham of West Virginia reminded his colleagues
that "the courts have uniformly decided that negroes are not citizens
under the Constitution." Clearly the Democrats hoped that emancipa-
tion would end only the master-slave relationship and would confer no
77 Ibid., 1159 (March 2, 1866).

78 Ibid., 1265 (March 8, 1866).
79 Belz, New Birth of Freedom, 25 and 163.

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civil rights on blacks. Garrett Davis argued that Congress could not
naturalize the former slaves, as only non-native-born persons could be
made citizens by Congress. In March 1866, when Johnson vetoed the
civil rights bill, he denied that Congress had the power to confer citi-
zenship and also questioned the fitness of the freedmen for citizen-
ship. According to the Democrats, emancipation did not change the
ruling in Dred Scott that blacks were neither citizens nor aliens. Con-
gressional Democrats meant to keep American citizenship as racially
exclusive as possible.80
Congressman Michael C. Kerr of Indiana argued that Congress had
no power, even by amending the Constitution, to prohibit states from
excluding or subordinating racial minorities. "The right to exclude
them or to limit them in civil or political rights and privileges is fun-
damental and necessary to the existence and safety of the State. It an-
tedates all constitutions. It is original in the State." Kerr had other mi-
norities in mind in addition to the freedmen-Mexicans and Asians
especially.81 The principle of equal citizenship-rather than being
made for the benefit of the freedmen only-clearly had implications
for all Americans. Senator Garrett Davis argued similarly that the
United States was founded as a white man's government, and "under
the power simply to amend the Constitution of the United States there
is no power to revolutionize it, to subvert it, or to change it from a re-
public to a monarchy, and these acts cannot be effected by any power
except the power of revolution." Senator Willard Saulsbury called the
Civil Rights Act revolutionary and unconstitutional and swore that no
judge in Delaware-not even a Republican judge-would enforce it.
The implementation of this theory could be seen in the black codes.
Senator Henry Wilson of Massachusetts said of the Civil Rights Act,
"This measure is called for because these reconstructed legislatures, in
defiance of the rights of the freedmen and the will of the nation em-
bodied in the Constitution, have enacted laws nearly as iniquitous as
the old slave codes."82 Congressional Republicans were responding to
a number of constitutional theories and citizenship programs, includ-
ing the Dred Scott doctrine, the black codes, and claims that the Dec-
80 Cong. Globe, 39 Cong., 1 Sess., 1295 (March 9, 1866), 523, 525, and 530 (Davis on nat-
uralization, January 31, 1866), 1679 (Johnson's veto message, March 27, 1866), and 504 and
507 (discussion of Dred Scott, January 30, 1866).
81 Ibid., 1268-69 (March 8, 1866); and Foner, Reconstruction, 313-14.
82 Cong. Globe, 39 Cong., 1 Sess., 530 (Davis, January 31, 1866), 1809 (Saulsbury, April 6,
1866), and 603 (Wilson, February 2, 1866).

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laration of Independence established a "white man's government."

With these alternatives before them, the policy of a national guarantee
of equal rights was truly revolutionary, as the old slaveholding class
had long recognized. It destroyed the claims of antebellum state sov-
ereignty to grant or withhold fundamental rights on the basis of race.
However inadequate it may seem by twentieth-century standards,
equality in fundamental rights was a significant step in Reconstruc-
tion.83
For most northern Republicans, racial inclusiveness was the answer
to the black codes. They believed that there should be one class of
American citizenship, without racial classification, whether malignant
or benign. Representative William Lawrence of Ohio said that the
Civil Rights Act, "which regards all men in their civil rights as equal
before the law, is not made for any class or creed, or race or color, but
in the great future that awaits us will, if it become a law, protect every
citizen, including the millions of people of foreign birth who will
flock to our shores to become citizens and to find here a land of liber-
ty and law." Similarly, Freedmen's Bureau officers understood that
racial inclusiveness characterized the law they operated under and act-
ed accordingly. Acting Inspector General F. D. Sewall reported ap-
provingly of bureau efforts to move freedpeople out of Army camps.
"The aggregation of the freedmen in camps, or colonies, especially
when supported by the government, tends to promote idleness and a
want of self-reliance, and to engender clanishness, and keep up an un-
necessary distinction between the two races of American citizens."84
Though the American legal community did not have a great deal of
experience in questions of citizenship and civil rights, the American
political tradition vehemently opposed class legislation or "favored
treatment, of similarly situated groups. To single out blacks for special
treatment after their transition from slavery to freedom would have
been contrary to predominant values of equal opportunity and self-re-
liance," one scholar has noted. Furthermore, he continued, "Black
Americans, then, were no more entitled to special treatment than 'in-
ferior' immigrants."85
83 Foner, Reconstruction, 257; Belz, New Birth of Freedom, 124, 133; and Andrew Kull, The
Color-Blind Constitution (Cambridge, Mass., and London, 1992), 20.
84 Cong. Globe, 39 Cong., 1 Sess., 1833 (April 7, 1866); and House Exec. Docs., 39 Cong.,
1 Sess., No 120: Message of President on Refugees, Freedmen, and Abandoned Lands, p. 34
(emphasis in original).
85 Kaczorowski, Politics of Judicial Interpretation, 223.

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The freedpeople themselves shared these values and provided the

strongest expression of the desire to eliminate racial classification
from American citizenship. The free blacks of the North had experi-
enced the effects of racial classifications and were determined to elim-
inate them. Appealing to the principles of the Declaration of Indepen-
dence, the freedmen insisted on nothing less and nothing more than
equality in individual rights. Many black Americans were eager to as-
sert the idea of equal citizenship without regard to color. Contrary to
the theory of Dred Scott, a Norfolk committee argued, "No sane per-
son will for a moment contend that color or birth are recognized by
the Constitution of the United States as a bar to the acquisition and en-
joyment of citizenship." Abolitionist Frederick Douglass repeatedly
made this point and warned against any race-based preferential treat-
ment. "What I ask for the negro is not benevolence, not pity, not sym-
pathy, but simply Justice." Ten years after the war he maintained, "We
utterly reject all invidious distinctions, whether in our favor or against
us, and ask only for a fair field and no favor." "At their most utopian,"
Eric Foner remarks, "blacks in Reconstruction envisioned a society
purged of all racial distinctions," and in public life "those who had so
long been proscribed because of color defined equality as color-
blind." Abjuring claims based on special treatment, a group of freed-
men petitioned Congress, "We would affirm that while we are primar-
ily moved to petition your honorable body because we are the imme-
diate subjects of injustice, we also feel a pride, as Americans, that our
government should stand consistent with its declared principles, and
an example before the world, that Ireland and all oppressed Europe
may in our country have hope."86 The freedmen made their appeal as
Americans and sought the removal of racial classification (to voting,
in this case) as consistent with American principles. They did not seek
special classification, which would be a temporary, expedient abroga-
tion of those principles, in order ultimately to confirm them.
86 "Address by a Committee of Norfolk Blacks," June 26, 1865, in C. Peter Ripley, et al.,
eds., The Black Abolitionist Papers (5 vols.; Chapel Hill, 1985-1992) V, 339; "What the Black
Man Wants," January 26, 1865, in John W. Blassingame and John R. McKivigan, eds., The Fred-
erick Douglass Papers (5 vols. to date; New Haven, 1979- ), Series One, Vol. IV, 59-69; "The
Color Question," ibid., 414-22; Foner, Reconstruction, 286-88 (quotation on p. 288); Donald G.
Nieman, "The Language of Liberation: African Americans and Equalitarian Constitutionalism,
1830-1950," in Nieman, ed., The Constitution, Law, and American Life: Critical Aspects of the
Nineteenth-Century Experience (Athens, Ga., and London, 1992), 67-90; and Senate Misc.
Docs., 40 Cong., 3 Sess., No. 44: Memorial of the Executive Committee of the Late National
Convention of the Colored Men of the Country, 1869 (Serial 1361).

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The Civil Rights Act of 1866 lends no support to the argument that
the Reconstruction Congresses planned for and implemented race-
conscious legislation in order to benefit persons because of their col-
or. The Fourteenth Amendment followed the Civil Rights Act and was
intended to make the provisions of that statute permanent. Racial clas-
sification built into law was precisely what the Republicans battled as
they progressed from emancipation and the Freedmen's Bureau to the
Civil Rights Act and the Fourteenth Amendment.87
The same Congress that enacted the Freedmen's Bureau bill also
wrote the Fourteenth Amendment, which largely constitutionalized the
Civil Rights Act of 1866; if that proves anything about the meaning of
the Fourteenth Amendment, it is that the amendment was intended to
establish racial equality in fundamental rights. Andrew Kull makes a
persuasive case that the Thirty-ninth Congress, in its consideration of
the Fourteenth Amendment, rejected the idea of a completely color-
blind Constitution when it chose vague "equal protection of the laws"
language instead of clear statements prohibiting racial classifications
in state legislation. Northern Republicans did this because they did not
want to disturb their own states' laws that permitted unequal suffrage
and segregation. This argument is a valuable reminder that Recon-
struction was limited and that the Republicans could pursue color-
blind equality only so far. However, as Kull points out, this train of
thought leaves color-blindness as one possible interpretation of the
Fourteenth Amendment, one articulated by Justice John Marshall Har-
lan in his Plessy v. Ferguson dissent. Keeping in mind that the con-
gressional Republicans were principally concerned with equality of
fundamental rights, which in 1866 did not appear to include voting,
integrated education, or equal access to public accommodations,
makes the argument for color-blindness even stronger.88
The attempt to use legislative history to support contemporary af-
firmative action programs is similar to two other attempts to make his-
tory serve constitutional advocacy. In the 1940s Justice Hugo L. Black
argued that the legislative history of the Fourteenth Amendment
87 Nelson, Fourteenth Amendment, 89 and 124.

88 Kull, Color-Blind Constitution, 66-69, 87-111, and 121. The changing scope of rights,
believe, explains the reasoning of the Supreme Court in Brown. The color-blind application of
the Fourteenth Amendment had expanded beyond the limited scope of Reconstruction rights and
into the areas of public education and public accommodations. Maltz, Civil Rights, the Constitu-
tion, and Congress; and Donald E. Lively, The Constitution and Race (New York, Westport,
Conn., and London, 1992), 56.

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showed that the original intent of its framers was to enforce Bill of
Rights protections against state governments. Professor Charles Fair-
man undertook an exhaustive review of the original understanding of
the idea that the Fourteenth Amendment "incorporated" the Bill of
Rights in the way Black said that it did and concluded that the amend-
ment's sponsors never advocated this idea in Congress, even when
specifically asked by other Republicans. Contemporary newspapers
did not mention this possible result, no campaign speeches in 1866 re-
ferred to the issue, and no state ratifying conventions addressed it. De-
spite the efforts of William W. Crosskey to defend Black against Fair-
man, it was clear that incorporation of the Bill of Rights did not pro-
ceed along the lines of original intent.89
Howard Jay Graham, writing at the same time as Crosskey and with
the same end in mind (vigorous national enforcement of Bill of Rights
guarantees) urged the abandonment of original intent in the effort to
incorporate the Bill of Rights. Crosskey's writings were a lawyer's
brief for the Federalists, Graham argued, and engaged in the same
anachronistic arguing as the enemies of Federalist constitutionalism.
Crosskey had failed to see that the Constitution was not an inert doc-
ument for lawyers but a living charter for Everyman. Crosskey had
shown, in spite of himself, the futility of original intent. Incorporation
did proceed despite original intent, by judicial construction that subor-
dinated "original intent" to the doctrine of the "living Constitution."90
Historians continue to argue over the incorporation issue, with a re-
cent defender of Black and Crosskey concluding that "the full incor-
poration theory, though not refuted, must be classified as not proven
beyond a reasonable doubt."91 Legislative history may be a useful first
step, but it usually does not prove dispositive in controversial consti-
tutional questions.
89 Justice Black's dissent in Adamson v. California, 332 U.S. 46 (1947) at 71. Charles Fair-
man, "Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Under-
standing," Stanford Law Review, II (December 1949), 5-139; and William W. Crosskey,
"Charles Fairman, 'Legislative History', and the Constitutional Limitations on State Authority,"
University of Chicago Law Review, XXII (Autumn 1954), 1-143.
90 Howard Jay Graham, Everyman's Constitution: Historical Essays on the Fourteenth
Amendment, the "Conspiracy Theory, " and American Constitutionalism (Madison, Wisc., 1968),
includes a reprint of his 1954 review of Crosskey's article, "Crosskey's Constitution: An Ar-
chaeological Blueprint," 345 and 365; and Richard C. Cortner, The Supreme Court and the Sec-
ond Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties (Madi-
son, Wisc., 1981).
91 Maltz, Civil Rights, the Constitution, and Congress, 117.

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Another celebrated attempt to bring legislative history and original

intent to the service of constitutional law occurred in the 1954 Brown
v. Board of Education case. In order to help bring about the end of
state-mandated segregation in education, Alfred H. Kelly prepared a
brief for the U.S. Supreme Court on behalf of the National Association
for the Advancement of Colored People arguing that the Fourteenth
Amendment clearly meant to forbid segregation. The original intent of
its authors had been set aside in the Plessy v. Ferguson "separate but
equal" dictum, Kelly argued, and the Court should return to the origi-
nal intent. Unfortunately for Kelly, the Court decided that the histori-
cal record was too vague to determine the question of original intent
one way or the other and went on to strike down segregation on
grounds other than original intent. The Court's judgment that the his-
torical record was unclear was more accurate than Kelly's argument
that the historical record clearly showed an original intent against seg-
regated public education, as Kelly well knew. He later admitted that
he had "manipulated history in the best tradition of American advoca-
cy, carefully marshaling every scrap of evidence in favor of the de-
sired interpretation and just as carefully doctoring all the evidence to
the contrary, either by suppressing it when that seemed plausible, or
by distorting it when suppression was not possible." Kelly knew that,
as in the incorporation effort, the historical record and legislative his-
tory would not help reach the desired result. The Court, too, recog-
nized this and based its decision on other grounds.92
In 1955 Alexander M. Bickel wrote an article that attempted to ex-
tricate Kelly from the desegregation case as Graham extricated
Crosskey from the incorporation case. In "The Original Understand-
ing and the Segregation Decision," Bickel came to the conclusion that
legislative history is an inadequate tool of constitutional law.93 He saw
that the moderate Republicans were the controlling intelligence in
drafting Reconstruction legislation and that they did not envision an
end to all racial distinctions. But, Bickel went on, this intent is only
half of the question, the other being: what did they see as the long-
term prospects or tendency of their action? In casting the Fourteenth
Amendment in language capable of growth, they permitted future gen-
92 Alfred H. Kelly, "Clio and the Court: An Illicit Love Affair," in Philip B. Kurland, ed.,
Supreme Court Review (Chicago and London, 1965), 119 and 144 (quotation).
93 Harvard Law Review, LXIX (November 1955), 1-65.

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erations to fulfill the potential of the Constitution. Racial equality was

clearly the tendency of Reconstruction legislation, and that spirit,
rather than what the legislators themselves were able to accomplish,
should guide twentieth-century Americans. Bickel argued that the con-
stitutionalist should neither slavishly adhere to legislative history nor
easily disregard it. Legislative history and original intent were the nec-
essary first links in the chain of constitutional construction.
In neither of these cases did resort to a strict legislative history or
the original understanding achieve the desired result-incorporation
of Bill of Rights guarantees against state power and desegregation.
What of affirmative action? The general principle guiding the spon-
sors of Reconstruction legislation was that of equality in fundamental
rights, based on the principle that "all men are created equal." But
while the tendency of Reconstruction legislation was clearly toward a
color-blind rule of law in America, it did not uproot all racial classifi-
cations. A strict adherence to the original intent of the Civil Rights Act
and Fourteenth Amendment would lend more support to Raoul Berg-
er's conclusions: that they did not prohibit segregation, private acts of
discrimination, racial disfranchisement, or abridgments by the states
of the Bill of Rights. Again, a strict legislative history of the Four-
teenth Amendment would not sustain Brown or the principles of the
Civil Rights Act of 1964. In fact, the strict "original intent" reading of
the Reconstruction era would show that not all racial classifications
were prohibited-as congressional debate about segregation, misce-
genation, and private discrimination shows. It is not unreasonable to
conclude, then, that the Reconstruction Congress might have allowed
race-conscious remedial legislation with preference for blacks, since it
countenanced the anti-black variety, particularly in labor relations. But
in fact it did not, and it let stand some race-based state legislation that
was inimical to blacks. In short, evidence presented above indicates
that a strict legislative history of the Fourteenth Amendment would
have to conclude that racial neutrality was the goal of the Reconstruc-
tion Congress, although there were some exceptions. The exceptions
to this rule did not, in Congressman Nelson Taylor's phrase, "overleap
the mark," but fell short of it. There was no benign classification in fa-
vor of blacks, only residual racial classifications that worked against
them.
The Freedmen's Bureau, Civil Rights Act, and Fourteenth Amend-
ment all established a racially neutral standard of American citizen-

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ship. Their practical effect, no doubt, was to assist the freedpeople, but
the concern of Congress was to establish a color-blind equality in fun-
damental rights. Any deviations from this principle, such as those in
the administration of the Freedmen's Bureau, were temporary conces-
sions to the exigencies of the moment. While the Reconstruction leg-
islators fell short of a thoroughgoing color-blindness, they gave scope
for and encouraged what might be called a color-blind aspiration in
the U.S. Constitution.94
94 Herman Belz, "The Constitution and Reconstruction," in Eric Anderson and Alfred A.
Moss Jr., eds., The Facts of Reconstruction: Essays in Honor of John Hope Franklin (Baton
Rouge and London, 1991), 189-217 and 216.

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Racial Classification and Reconstruction Legislation

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Racial Classifications and Reconstruction Legislation

Author(s): Paul Moreno

Stable URL: https://www.jstor.org/stable/2211578

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THE AMERICAN LEGAL AND CONSTITUTIONAL REGIME ADJUSTED

MR. MORENO is an assistant professor of history at St. Thomas Aquinas

THE JOURNAL OF SOUTHERN HISTORY

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common American citizenship. Finally, the bureau was established by

4 Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Re-

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of newly freed slaves. The War Department created the American

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7Congressional Globe, 38 Cong., 1 Sess., 572 (February 10, 1864).

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were the object of the legislation. While relief measures were to be as

13 Ibid., 38 Cong., 2 Sess., 563 (February 2, 1865).

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Objections to H.R. 51, because of its neglect of loyal white

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1865, rapidly changing circumstances indicated that a revised Freed-

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Because of this racial classification many depositors did not receive

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land within the insurrectionary states as shall have been aban-

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ample, Congressman Nelson Taylor of New York, referring to the sec-

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28 Ibid., 654 (February 5, 1866).

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31 Ibid., 603 (February 2, 1866).

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34 Ibid., 516 (January 30, 1866).

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the Freedmen's Bureau a legal basis for operation in peacetime since

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"common schools among freedmen and refugees," but this language

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The reports of the bureau show a consistent adherence to the racial-

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themselves wished to be judged in state courts operating under

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slavery," even though "the law which punishes larceny, it is true,

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education for children of both races. Congressman Lovell H.

60 Cong. Globe, 39 Cong., 1 Sess., Appendix, 71 (February 3, 1866).

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64 Cong. Globe, 39 Cong., 1 Sess., 1758 (April 4, 1866).

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Reconstruction. In a report from Alabama later in 1866 the bureau's

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il Rights Act and the Fourteenth Amendment anticipated and initiated

74 Schnapper, "Affirmative Action," 784.

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The idea of equal citizenship, embodied in the Civil Rights Act,

77 Ibid., 1159 (March 2, 1866).

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laration of Independence established a "white man's government."

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