The Freedmen’s Bureau as a Precedent for Racial Classifications
One originalist argument in favor of allowing the government to engage in “race-conscious” policies is that the post-Civil War Freedmen’s Bureau was established to assist freedmen and refugees, the vast majority of whom were black, as Congress was well aware.
During oral argument on Monday, the plaintiff’s attorney replied, “The Freedmen’s Bureau for the most part did not draw any racial classifications. It was classifications on the basis of being a former slave or a refugee.” A law professor tweeted in response, “It’s one of the most ridiculous things I’ve heard in legal argument.”
And yet the distinction drawn by the attorney is not ridiculous at all. Imagine an Allied policy in 1946 to help former inmates of Nazi camps, 95% of whom were Jews. This is, on the one hand, “about” race (the Nazis having considered Jews an inferior race), i.e., race conscious. On the other hand, the policy does not single out Jews for assistance based on them being Jews, as such.
Such would be a clear precedent for the notion that you can give assistance to a group that suffered horrific discrimination, knowing that the group is overwhelmingly composed of Jews. It’s a much weaker precedent for the notion that the government can in the future, especially 160 years in
Article from Reason.com