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June 23, 2012


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Patrick S. O'Donnell

Hear, hear.


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.


Brando Simeo Starkey


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?

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