Originalism and the Colorblind Constitution

2. Other Laws Let me now discuss various laws that do not focus on previous condition of servitude but instead appear to classify based on race. Jed Rubenfeld's influential discussion, as well as those of other scholars, focuses on five principal sets of laws. (118) One 1866 law donated federally owned land in the District of Columbia "for the sole use of schools for colored children." (119) A second 1866 act is said to have appropriated funds for the relief of destitute colored women and children. (120) A third 1867 law provided for money for destitute "colored" persons within the District of Columbia. (121) A fourth 1866 law required military chaplains appointed for black troops to provide them with basic educational instruction. (122) Finally, Congress adopted special rules and procedures for the payment of "colored" servicemen in the Union Army. (123) While the critics claim that these five laws confer race-based benefits on blacks, and at first glance they appear to do so, upon examination it is not at all clear that they do. The first two laws do not provide any evidence of providing special race-based benefits to blacks. The third and fourth laws can be reasonably interpreted as not providing such benefits. The fifth law does appear to provide race-based benefits, but it may do so under significantly narrower grounds than the critics suggest. First, while Rubenfeld presents the law that donated federal owned land in the District of Columbia "for the sole use of schools for colored children" as a special benefit to blacks, this appears to be a misinterpretation. (124) Prior to 1862, public schools in the District were limited to white children. (125) In 1862, Congress initiated a separate school system for "colored" children. Under a system of separate but equal, each of the school systems should have received equal funding. (126) The law that Rubenfeld identifies contributed land to the public schools for black children. (127) This contribution, therefore, cannot be considered in isolation from the other more general funding provided to the two school systems. One can consider this contribution as a special benefit to blacks only if funding for black schools exceeded on a per capita basis the funding for white schools. Based on the operation of segregated schools generally, this seems quite unlikely. Moreover, the contribution of land for black public schools is entirely understandable without assuming additional contributions to black schools. If white schools had been operating in the past, then it would not be necessary to provide land for those schools, since they would have already been built. But black schools, which were just being started, would require additional capital contributions to be erected. (128) Second, Rubenfeld's discussion of the appropriation of funds for the relief of destitute colored women and children also appears to be misleading. The 1866 law appropriated funds for the National Association for the Relief of Destitute Colored Women and Children. (129) The private association had received a charter from the Congress in 1863. (130) The Association, which was initially located in Georgetown in the confiscated estate of a Confederate officer and provided food and shelter, had been established because of concerns about the plight of former slaves. (131) Fugitive slaves largely from Virginia, who were known as contrabands, had entered the District of Columbia and taken up residences in shantytowns and makeshift camps. (132) One source estimates that perhaps a third of the contrabands in the District died between 1862 and 1866. (133) The National Association in 1863 became a home "for sixty-four former slaves, most of them children." (134) In this case, the funding of the National Association, without more, would be unlikely to constitute the conferral of race-based benefits. The funding of a private organization is not state discrimination unless the state's decision to fund it is based on a discriminatory intent. …