In “Historians Taking Political Stands,” I recently took issue with an argument put forward by New York University’s Thomas Bender that professional historians have lost the general audience they used to enjoy by, in effect, becoming too professional, writing more and more specialized, arcane, and abstruse studies only for each other. Equally if not more to blame, I argued, is that the historians who do leave the campus bubble and enter the public arena are not only too political but too partisan, almost always on the “progressive” side of whatever issue they address. “When the public encounters historians these days,” I argued, “it is all too often in the form of politically correct scolds — in Op Eds, petitions, legal briefs — offering their scholarship as ammunition to progressives (and only progressives) in various cultural and partisan skirmishes.”
This view is confirmed, I think, by what they do not address — consider, for example, the deafening silence so far of the American Historical Association, the Organization of American Historians, the Society for the History of American Foreign Relations, et al. regarding Hillary Clinton’s maintaining unauthorized personal control over the electronic records of her tenure as Secretary of State. Many of them sued Henry Kissinger for far less an affront to the historical record.
Two days before Prof. Bender’s article on historians losing their public appeared, eminent Columbia University historian Eric Foner, winner of many prizes and past president of both the American Historical Association and the Organization of American Historians, published an opinion piece in the New York Times on “Why Reconstruction Matters” that, along with Prof. Foner’s other public engagement in teaching Reconstruction lessons, provides an excellent case study of the dangers of “skating on the thin ice” of enlisting history in the current political wars.
“Citizenship, rights, democracy,” Prof. Foner writes in the Times, “as long as these remain contested, so will the necessity of an accurate understanding of Reconstruction.” That is true, but the problem is that the current contest over “rights” — more specifically, over whether equality requires or prohibits race preference policies — increasingly distorts that “accurate understanding” rather than benefits from it.
It is clear where Prof. Foner stands on that question — solidly with today’s progressives who condemn, as he wrote in The Nation, “the conservative sophistry that, under the rallying cry of colorblindness,” opposes affirmative action. Foner’s unresolved dilemma — more like historiographical schizophrenia — is the impossibility of squaring his determination to defend racial preference policies in the present with his evident sympathy for the unsuccessful radicals and especially with the “accurate understanding” of Reconstruction that his professionalism requires.
There is no disagreement among historians today that Reconstruction was dominated by “moderate” Republicans, not by Radicals like Thaddeus Stevens in the House and Charles Sumner in the Senate who tried, but failed, to implement the old abolitionist vision of a colorblind society. In both the Civil Rights Act of 1866 and the 14th Amendment to which it led, the Radicals insisted on a clear, colorblind non-discrimination standard: “All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race." (Emphasis added) They failed each time because the ”moderates” insisted on the purposely vague “equal protection” standard specifically because they wanted to preserve what they and their constituents (and future judges) would regard as reasonable racial discrimination. Anyone doubting this short summary should see Andrew Kull’s masterful The Colorblind Constitution (Harvard, 1992).
Prof. Foner’s scholarship is of course sensitive to the Reconstruction conflicts between the old abolitionist Radicals and the dominant “moderates,” but his public pronouncements, especially in legal proceedings where history is enlisted in progressive causes, are much less so. Thus on the question of whether the Civil Rights Act of 1866 was aimed at discrimination by private parties as well as state agencies, Prof. Foner concluded that “the Civil Rights Act was primarily directed against public, not private, acts of injustice" (quoted here, note 66). However, along with other prominent historians he joined an amicus brief in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), that asserted that it ”will conclusively demonstrate that the Act was intended by its framers . . . to protect the civil rights of both blacks and whites, notwithstanding” whether the discriminator was public or private. (Quoted in a Yale Law Journal review, note 70) (For a classic example of massive contradictions between a historian’s professional work and trial testimony, see my discussion of Columbia Professor Alice Kessler-Harris’s twelve single spaced pages of contradictions in the last half of this post on the EEOC v. Sears case.)
In much of Prof. Foner’s narrative there is a wistful sadness that the abolitionist vision of a colorblind, non-discriminatory public policy was not achieved, that the only thing “tragic” about Reconstruction is that it did not go far enough, that it was flawed by the compromises with racism. For example, as he told a group of law students:
Read Stevens's speech, the last speech before the adoption by the House of the Fourteenth Amendment. It was a wonderful speech where he laid out the Radical vision of a perfect republic with no inequality of race, of caste, et cetera. Then he said, in essence, that dream has vanished. That's not what the Fourteenth Amendment is. It's imperfect. But I am supporting it. Why? Because it's a step in the right direction.
As our current conflict over racial preference policies heated up, however, Prof. Foner’s expressed views on the reasonableness and even desirability of racial classification and “race conscious” policies have moved farther and farther away from the Stevens-Sumner non-discrimination principle. Thus he prepared an expert report and testified in support of the University of Michigan’s camouflaged quota-like law school admission policy in Grutter and outright grant of 20 points to undergraduate minority applicants in Gratz.
In what is a virtual reductio ad absurdum of the abandonment of the Stevens-Sumner principle of non-discrimination, Foner joined 75 other historians who filed an amicus brief in the Schuette case (discussed here) actually arguing that the 14th Amendment bars the citizens of Michigan from amending their state constitution to prohibit state agencies from discriminating against or granting preferences to individuals based on race. (That whirring sound you hear is Stevens, Sumner, Wendell Phillips, and Frederick Douglass spinning in their graves.)
In short, in the fight over the form the 14th Amendment would take, the Radical Republicans who wanted a clear requirement of colorblindness were defeated by the "moderates' who wanted to protect the ability of governments to engage in discrimination, such as segregated schools and limitations on black voting, that they thought reasonable. The legal theory underlying Plessy v. Ferguson — that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional — actually reflected quite well the views of the “moderates” whose language was embodied in the Fourteenth Amendment.. Thus anyone who defends racial preferences today must reject Justice John Marshall Harlan's stirring comment in Plessy that “our Constitution is colorblind.” One of the oddest, saddest things about contemporary liberalism is that it has rejected the colorblind principle of its radical progenitors and stands on the shoulders, and repeats the arguments, of dead racists.
Ironically, however, the recent brouhaha over Religious Freedom Restoration Acts in Indiana and other states may produce a surprising and unexpected change. Although no one so far as I know has mentioned Thaddeus Stevens or Charles Sumner in this context, the argument that no discrimination of any kind against gays can be tolerated clearly brings their non-discrimination principle to the fore, supported by the argument that a baker or photographer refusing to serve a gay wedding is morally and legally indistinguishable from refusing to serve blacks at a lunch counter.
Apparently forgotten in the current rush to condemn the attempt to carve out an exception to anti-discrimination law for sincere religious opponents, however, is the exception made in passing civil rights legislation for “Mrs. Murphy’s boardinghouse” that allowed a small space for private discrimination. Given the Indiana fury, I suspect that now no sympathy would be shown to a current Mrs. Murphy who refused to rent to gay or lesbian couples.
Remaining to be seen is whether the apparently strong conviction that sexual identity should be treated just like race throughout anti-discrimination law will lead to preferential treatment based on sex or whether a newly triumphant non-discrimination principle will be applied equally across the board with no distinctions allowed based on race, ethnicity, gender, or sexual identity. Another intriguing possibility is that the courts or Congress — both of which, after all, have decided that “equal protection” does not prohibit discrimination based on race to promote “diversity” — will agree that “equal protection” prohibits discrimination based on sex, sexual preference, gender expression, etc., but carve out exceptions to protect sincere religious convictions.
I expect to see a new mining of Reconstruction history to find currently relevant nuggets, but based on recent history I don’t expect to see much disagreement among historians.
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John Rosenberg, a lapsed historian, blogs at DISCRIMINATIONS.
Image: "MarriageEquality65.SupremeCourt.WDC.28April2015" by Elvert Barnes // CC BY-SA
