X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The short ambit of February marked Black History Month. With the passing of Coretta Scott King and Rosa Parks, there were many people and moments to remember. Representative John Lewis, D-Ga., has said that young people who argue that America has not made progress on race have not walked in his shoes. Simply because there is much still to be done does not mean we have not made great strides, through great sacrifice. Yet there is much still to be done. And the work will be that much harder if our memories fade. History is the conscience for the rule of law. It is troubling, then, when we not only forget history but take steps to avoid it. In 1997, Congressman Tony Hall, D-Ohio, proposed a one-sentence resolution: “Resolved by the House of Representatives that the Congress apologizes to African-Americans whose ancestors suffered as slaves under the Constitution and the laws of the United States until 1865.” It was time to apologize for reducing a race of people to mere property who, as the U.S. Supreme Court in Dred Scott wrote, “had no rights or privileges but such as those . . . the government might choose to grant them.” Yet the resolution never even reached a vote. Interviewed by 60 Minutes in 2001, Hall noted that he never had received so much hate mail. Striking slavery references In January, the National Archives announced the approaching completion of a project to collect, restore and make more widely available the records of the Bureau of Refugees, Freedmen and Abandoned Lands-the “Freedmen’s Bureau.” The bureau played a major role in easing the transition of nearly 4 million slaves into freedom after the Civil War. Perhaps the bureau’s largest contribution was in helping to establish more than 4,200 schools for the race of freedmen. Slavery had entailed state laws often prohibiting the education of blacks, slave and free alike. Congress funded this project through the Freedmen’s Bureau Records Preservation Act of 2000. But there apparently was a quid pro quo. The draft bill contained findings about slavery that framed the bureau’s importance. For example, “From 1619 to 1800 more than 660,000 African men, women, and children were torn from their homelands . . . and herded onto ships for transport to North America as slaves.” According to a staffer knowledgeable about the bill, these findings had to be stricken to assure passage. In the affirmative action cases decided by the Supreme Court in 2003, none of the justices sought the original understanding of the Civil War-born text at issue. Gratz v. Bollinger and Grutter v. Bollinger addressed the University of Michigan’s admissions policies for its undergraduate and law schools, respectively. Michigan gave heightened attention to admitting qualified African-American, Hispanic and Native American applicants. It argued that a critical mass of such students would enrich the institution’s educational mission. The plaintiffs argued that the policies violated 42 U.S.C. 1981 and the equal protection clause. A narrow majority held that a diversity-oriented policy could satisfy strict scrutiny. And although the undergraduate school’s point-based program was not narrowly tailored to achieve diversity, the law school’s individualized review was. As for the original understanding of the underlying law, though, the court was silent. Even the court’s two avowed “originalists” wrote not a single word exploring an original understanding. In his book A Matter of Interpretation, Justice Antonin Scalia had written that he decides a denial of equal protection “on the basis of the ‘time-dated’ meaning of equal protection in 1868.” Yet, in Gratz and Grutter, he wrote nothing about the 39th Congress’ support for the educational mission of the Freedmen’s Bureau. Likewise, Justice Clarence Thomas applied no originalist analysis to the equal protection clause. The one justice who noted our long history of racial disadvantage was Justice Ruth Bader Ginsburg. Her references to slavery, however, did not lead to a robust originalist foundation for her separate opinions. History matters. If we allow ourselves to forget our unpleasant heritage of slavery, which produced constitutional amendments, then how will the legal importance of the civil rights movement endure? Allen Weinstein, archivist of the United States, recently observed, “It would be comforting-but inaccurate-to state that . . . the enormous and visible progress made by African Americans in this country in recent decades . . . has finally eliminated racism.” The vestiges and effects of racial subjugation remain, and to address them effectively we must face-not avoid-our history. Marvin H. Lett earned J.D. and LL.M. degrees from Harvard Law School, where his research addressed the 13th Amendment and originalism. He has taught legal writing at Howard University School of Law.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.