Congress embodied a variety of motivations in passing the Civil War Amendments. See Brown v. Board of Education, 347 U.S. 483, 489 (1954) ("The most avid proponents … undoubtedly intended them to remove all legal distinctions… Their opponents, just as certainly were antagonistic to both the letter and the spirit"). Economic reparations for formerly enslaved Africans were discussed, but "a strong consensus developed among moderates and conservatives favoring equal protection of the law for all men." Douglas L. Colbert, Liberating the Thirteenth Amendment, 30 Harv. C.R.-C.L. L. Rev. 1, 12 (1995).

Some federal attempts were made to provide economic reparation to formerly enslaved Africans. On January 16, 1865, General Sherman issued Field Order 15 that provided, among other things, up to forty acres of "tillable ground" to "respectable negroes, heads of families." Commission for Positive Education, The Forty Acres Documents: What Did the United States Really Promise the People Freed From Slavery? 52 (1994). However, consistent with the perspective that Congress preferred viewing the passage of the Civil War Amendments as reparations for the previously enslaved Africans and their descendants, in the Freedmen's Bureau Acts Congress provided land for a price to "loyal refugees" and thus the land was no longer free. 13 Stat. 507, 508-509 (1865). The Second Freedmen's Bureau Act revoked General Sherman's grant of up to forty acres and required validation of claims in order to purchase up to twenty acres of land. 14 Stat. 173, 175-176 (1866).

In the 1890s, the Ex-Slave Mutual Relief, Bounty and & Pension Association was formed. Under the leadership of Callie House and Rev. Isaiah Dickerson, this organization rallied the support of approximately 600,000 "ex-slaves" and their descendants to lobby Congress for the passage of legislation such as Senate Bill 4718, that called for a pension for "ex-slaves" and their descendants. This effort was unsuccessful, as were attempts to obtain material reparations through litigation in the early 1900s and in 1995. See Cato v. United States, 70 F.3d 1103 (9 Cir. 1995).

The century following the Civil War is known as "Jim Crow." During Jim Crow, African Americans were excluded by government action from full participation in the social, political and economic institutions of the United States. C. Vann Woodward, The Strange Career of Jim Crow (1955). The cruel legacies of Jim Crow in education are very clear at the University of Michigan as well as throughout the United States. This historical record compels the demand for reparations, continued today by N'COBRA and NCBL, as well as other groups. Adjoa A. Aiyetoro, The National Coalition of Blacks for Reparations in America: Its Creation and Contribution to the Reparations Movement, in Should America Pay?: Slavery and the Raging Debate Over Reparations 209-210 (Ray Winbush, ed. 2003).

Education is a significant issue within the reparations movement for African Americans in the United States. Some legislative bodies have passed reparations legislation that focuses on the importance of education, recognizing that education is a major arena of discrimination, and therefore a focus of remedy. Affirmative action in education is securely founded on principles of redress and reparation.


For a fleeting moment immediately following the Civil War, the prospects for formerly enslaved Africans and other persons of color appeared bright. The Thirteenth Amendment abolished chattel slavery in all its forms. The Fourteenth Amendment transformed formerly enslaved Africans into citizens, and guaranteed due process and equal protection. The Fifteenth Amendment then extended the voting franchise to African American men. Large numbers voted in subsequent elections, and many held elective office in state governments and Congress. John Hope Franklin & Alfred A. Moss, Jr., From Slavery To Freedom: A History of African Americans 238-246 (7 ed. 1994).

The mood of tolerance and reparation for the devastation of slavery did not long endure. Before the adoption of the Fourteenth Amendment in 1866, several States created ‘Black Codes' to perpetuate and enforce white supremacy, "to keep the colored race in a condition, practically, of servitude." Civil Rights Cases, 109 U.S. 3, 43 (1883) (Harlan, J., dissenting opinion). The Fourteenth Amendment was designed "[t]o meet this new peril to the black race, that the purposes of the nation might not be doubted or defeated." Civil Rights Cases, 109 U.S., at 43 (Harlan, J., dissenting opinion). As white supremacy became more entrenched, African Americans were disenfranchised economically and politically. See, e.g., Hunter v. Underwood, 471 U.S. 222, 229 (1985) (Rehnquist, J.) ("the Alabama Constitutional Convention of 1901 was part of a movement that swept the post-Reconstruction South to disenfranchise blacks…to establish white supremacy"); Leon F. Litwack, Trouble In Mind: Black Southerners In the Age of Jim Crow (1998). Nor were the efforts to maintain white supremacy limited to the turn of the last century. In Louisiana v. United States, 380 U.S. 145 (1965), Justice Black described the continuing ingenuity of the State of Louisiana in denying the voting franchise to African American citizens. The process began when the Louisiana Constitution of 1898 implemented a ‘grandfather clause,' Louisiana v. United States, 380 U.S., at 147-148, and continued in an unbroken string of devious innovation into the 1950's, when a "legislative committee to preserve white supremacy" was activated. Id., at 149. Finally, in 1965, this Court found Louisiana's voting practices to violate the Fifteenth Amendment. Louisiana v. United States, 380 U.S., at 153.

White supremacy as an official ideology could not have survived a robust interpretation of the Civil War Amendments in favor of African Americans. The Court eventually agreed with this interpretation nearly a century later. See Jones v. Mayer Co., 392 U.S. 409 (1968); Loving v. Virginia, 388 U.S. 1 (1967); United States v. Mississippi, 380 U.S. 128 (1965); Louisiana v. United States, 380 U.S. 145 (1965); Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964); Brown v. Board of Education, 347 U.S. 483 (1954). In the intervening nine or ten decades, the Civil War Amendments suffered retrenchment to the detriment of African Americans, supporting the myth of white supremacy and African American inferiority. White supremacy flourished under the banners of states' rights, limitations on federal power, narrow readings of the Constitutional text, and ‘color blind' jurisprudence.

In United States v. Cruikshank, 92 U.S. 542 (1875), the Court dismissed indictments brought under the Enforcement Act of 1870, 16 Stat. 140. With gruesome facts, the defendants had been found guilty in the Circuit Court for the District of Louisiana of depriving Constitutional and other rights due to "citizens of the United States, of African descent and persons of color." United States v. Cruikshank, 92 U.S., at 548. In a federalism discourse on the near-exclusive authority of states to define and protect the lives of citizens found therein, Chief Justice Waite shortened the reach of the Fourteenth Amendment, Id., at 554-555, and dismissed the indictments. Id., at 556-57, 559.

In The Civil Rights Cases, 109 U.S. 3 (1883), the Court found unconstitutional provisions of the Civil Rights Act of 1875, which prohibited racial discrimination in certain public accommodations. 18 Stat. 335. The Court found that these forms of discrimination were not "badges or incidents of slavery" prohibited under the Thirteenth Amendment and required a showing of state action before proceeding under the Fourteenth Amendment. The Civil Rights Cases, 109 U.S., at 24-26. Absent the requisite discriminatory state action, the statute was ruled unconstitutional in the sense that the Constitution did not authorize Congress to exercise power to regulate these forms of discrimination. Ibid. Eighty-one years later, Congress revisited the issue with the Civil Rights Act of 1964, upheld by the Court reading the identical texts of the Constitution. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (applying a commerce clause analysis).

In a group of cases decided in a single Term, the Court employed its ‘color blind' jurisprudence while ignoring the racially disparate effects, examining state laws which excluded African Americans from juries. Each case involved appeals of African Americans accused of murdering whites. Strauder v. West Virginia, 100 U.S. 303 (1878); Virginia v. Rives, 100 U.S. 313 (1879); see also Ex Parte State of Virginia, 100 U.S. 339 (1878). The Court allowed facially ‘color blind' statutes to stand, while striking down blunter attempts to keep African Americans out of jury pools. In Strauder v. West Virginia, 100 U.S., at 310, a state law clearly excluding African Americans from jury pools was found to have violated the Equal Protection Clause of the Fourteenth Amendment. However in Virginia v. Rives, 100 U.S., at 321-323, a more sophisticated, facially ‘color blind' Virginia juror selection system was upheld, even though it had the effect of excluding all African Americans. The drafting lesson was not lost on the States, which soon designed ‘color blind' statutes with clear discriminatory intent and effect. Just such a juror qualification law was upheld in Gibson v. Mississippi, 162 U.S. 565 (1896), involving a provision under the infamously racist Mississippi Constitution of 1890. The ‘color blind' language of Gibson sounds compelling: "the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race," Gibson v. Mississippi, 162 U.S., at 591 quoted in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995) (O'Connor, J.) quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Nevertheless, the petitioner was identified as a "Negro of the African descent and color black," Gibson v. Mississippi, 162 U.S., at 567 and the murder victim was "a white man." Id., at 569. In the era of Jim Crow, the wisdom of a ‘color blind' approach was lost on the millions condemned to oppression. See Leon F. Litwack, Been In the Storm So Long: The Aftermath of Slavery (1979).

Similar ‘color blind' language can be found in a line of unfortunate cases praising the Civil War Amendments while gutting their protections. See The Civil Rights Cases, 109 U.S. 3, 24 (1883) ("The thirteenth amendment has respect, not to distinctions of race, or class, or color, but to slavery. The fourteenth amendment extends its protection to races and classes, and prohibits any state legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.") (finding the Civil Rights Act of 1875 unsupported by the Civil War Amendments); Plessy v. Ferguson, 163 U.S. 537, 544 (1896) ("The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law") (permitting "equal, but separate" public accommodation on Louisiana railroads); Corrigan v. Buckley, 271 U.S. 323, 331 (1926) ("all persons and citizens shall have equal right with white citizens to make contracts and acquire property") (dismissing case for want of jurisdiction, permitting enforcement of racially restrictive real estate covenants); and Hirabayash v. United States, 320 U.S. 81, 100 (1943) ("Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people") (upholding wartime curfew restrictions upon persons of Japanese ancestry) quoted in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, at 214 (1995) (O'Connor, J.). In Hodges v. United States, 203 U.S. 1, 16-17 (1906), no Constitutional infirmity was found against a private conspiracy to forcibly prevent African American citizens from working, solely on the basis of their race and color. The ‘color blind' analysis of the Court stated:

"While the inciting cause of the [Thirteenth] Amendment was the emancipation of the colored race, yet it is not an attempt to commit that race to the care of the nation. It is the denunciation of a condition, and not a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof." Hodges v. United States, 203 U.S., at 16-17.

These cases are the oration of Brutus, praising the one he has slain; they were the federal pillars of white supremacy for nearly a century, shamelessly professing ‘color blind' equality while turning a blind eye to the harsh reality of life as an African American during Jim Crow.


Not every Justice uniformly supported a shameless version of ‘color blind' jurisprudence. A few lone voices of dissent may be heard during Jim Crow, most notably the pen of Justice Harlan. Modern proponents of ‘color blind' jurisprudence are fond of quoting Justice Harlan's dissent in Plessy v. Ferguson without noting his clear purpose to protect and uplift African Americans. See, e.g., Berea College v. Kentucky, 211 U.S. 45, 67 (1908) (Harlan, J., dissenting) (the Kentucky statute is "an arbitrary invasion of the rights of liberty and property guaranteed by the 14 Amendment against hostile state action") (majority upholds a Kentucky statute which forbids Berea College from teaching white and black students together); Hodges v. U.S., 203 U.S. 1, 37 (1906) (Harlan, J., dissenting) ("The interpretation now placed on the 13 Amendment is, I think, entirely too narrow, and is hostile to the freedom established by the Supreme Law of this land") (majority denies federal jurisdiction to allegations of conspiracy to deny blacks the right to contract and seek employment); Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J., dissenting) ("Our constitution is color blind … it is therefore to be regretted … for a state to regulate the enjoyment of citizens of their civil rights solely upon the basis of race … the judgment this day rendered will, in time, prove to be quite as pernicious as … the Dred Scott Case") (majority affirms ‘equal, but separate' common carrier transportation in Louisiana as permissible under the Thirteenth and Fourteenth Amendments); but see Gibson v. Mississippi, 162 U.S. 565 (1896) (Harlan, J.).

In his dissent in The Civil Rights Cases, 109 U.S. 3, at 26, Justice Harlan attempted to focus the Court's attention upon the "substance and spirit of the recent amendments of the constitution," as well as the Civil Rights Act of 1866, now codified at 42 U.S.C. § 1981. He insisted that the Thirteenth Amendment should be read to give Congress the power "to the extent at least of protecting the race, so liberated, against discrimination, in respect of legal rights belonging to freemen, where such discrimination is based upon race." Id., at 37. The legacies of slavery did not disappear upon emancipation, but "such discrimination is a badge of servitude, the imposition of which congress may prevent under its power, through appropriate legislation, to enforce the thirteenth amendment." Id., at 43.

The Justices in The Civil Rights Cases would support Respondents in the cases before this Court today. The Court struck down the Civil Rights Act of 1875 essentially on federalism grounds - that such power to remedy private discrimination had not been granted to Congress and thus was reserved to the States, but noting with approval that States themselves could prohibit such discrimination. The Civil Rights Cases, 109 U.S., at 25. If the State of Michigan had passed a Michigan Civil Rights Act in 1875, the Court would have upheld it as a State power not forbidden under the Thirteenth and Fourteenth Amendments. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261 (1964) ("[T]he Court in the Civil Rights Cases … noted with approval the laws of ‘all of the states' prohibiting discrimination."). This present Supreme Court should do no worse.