Justice Thomas and Frederick Douglass

Justice Thomas starts off his Grutter dissent with this quote from a Frederick Douglass speech. 

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury.

Here, Thomas appropriates these words of a venerable leader to argue that he, like Douglass, opposes affirmative action in higher education.

There are a few problems. 

First, Douglass was a great champion of the Freedman’s Bureau Act which actually did help black people on the basis of race in various ways, most successfully in building schools for freedmen. But that’s a relatively small problem. 

A bigger problem is that Thomas leaves out this crucial portion of the quote:

Let him alone. If you see him on his way to school, let him alone, don't disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him alone, don't disturb him! If you see him going into a work-shop, just let him alone, -- your interference is doing him positive injury.

That is, Douglass was not telling whites not to assist blacks, but instead not to harm them.  Douglass, a well-read and intelligent man, understood the zeitgeist of his time.  Something akin to affirmative action in higher education was not on the table in 1865, the year the speech was made.  The white masses were not itching to redistribute the benefits of American democracy.  It’s nonsensical, then, to argue that Douglass was imploring whites to not enact policies similar to that of University of Michigan when whites of that era never were predisposed to do as such.  Who argues against a position that no one is taking?  Rather, Douglass appreciated that whites, particularly in the South, were willing to disfranchise, discriminate against, threaten and even kill scores of blacks to maintain white supremacy. 

The biggest problem , however, is that Douglass mentions the sort of policies that he deemed to be causing blacks “positive injury,” former Massachusetts Governor General Nathaniel Banks’ black labor policy.  Once Gen. Banks assumed control of Louisiana he instituted a black labor policy in January of 1863.  According to the plan, “Blacks, unless they had a job in town, must work on a plantation. They could choose their own employers but were required to sign a contract and work for one year with whomever they signed....  Other benefits included rations, medical treatment, schooling for their children, quarters, fuel, and a garden plot of at least one acre. Furthermore, the regulations outlawed physical abuse of any kind and established the work period as dawn to dusk."  Banks’ policy was instituted as some sort of paternalistic effort to prepare ex-slaves for freedom.  The plan, in other words, was implemented with supposedly beneficial purposes for blacks.  It is completely unreasonable to compare the Banks plan to University of Michigan’s admissions policies.

My problem with Thomas’ citing of Douglass is that it’s completely ahistorical and perhaps disingenuous.  If Thomas thinks that affirmative action is a bad idea, that’s fine.  But don’t take a quote completely out of its historical context, exclude important parts of that quote, and distort the memory of a man who can no longer speak for himself.  What was done here is almost as bad as those conservatives who similarly turn Martin Luther King Jr. into some anti-affirmative action superhero.

 

Comments

[Patrick S. O'Donnell]

Hear, hear.

[DrGrishka]

Was Freedman's Bureau acting on the basis of race or on the basis of prior status (that of a slave)? If the latter, that is different and consistent with Scalia/Thomas view of affirmative action (where boosting an individual who was previously discriminated against is permissible).

[Jonathan H. Adler]

DrGrishka is correct. The Freedmen's Bureau Act, by its express terms, authorized assistance for "loyal refugees and freedmen," and is therefore more equivalent to a need-based or status-based affirmative action program than a race-based affirmative action program. One can find the text of the act at the link below.

JHA

http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2282&chapter=216250&layout=html&Itemid=27

[Brando Simeo Starkey]

Jonathan,

The Freedmen's Bureau, in operation, helped blacks who were free before the civil war. In March of 1867, for instance, Congress appropriated money "for the relief of freedmen or destitute colored people in the District of Columbia, the same to be expended under the direction of the commissioner of the bureau of the freedmen and refugees." Free blacks were educated in the schools the Bureau created. The Bureau handled various financial claims of black Union soldiers from the North. So the Bureau did indeed help blacks regardless of their previous condition of servitude.

But this is a red herring. Whether Justice Thomas would find the Bureau constitutional is quite irrelevant. The reason why I mentioned the Freedmen's Bureau is because Justice Thomas uses the Douglass' quote to suggest that the leader rejected government intervention on behalf of black people. The suggestion is categorically false.

[Orin Kerr]

I was interested in this passage in Douglass's speech right after the one that Brando emphasizes:

*******
Let [the negro] fall if he cannot stand alone! If the negro cannot live by the line of eternal justice, so beautifully pictured to you in the illustration used by Mr. Phillips, the fault will not be yours, it will be his who made the negro, and established that line for his government. (Applause.) Let him live or die by that. If you will only untie his hands, and give him a chance, I think he will live.
*******

It's entirely possible I'm just missing the context, and if so I hope others will help me understand this, but why isn't that quote pretty much the interpretation that Justice Thomas was offering?