Race, Law & the Limits of Equality
From Bakke to Callais: A Constitutional Lineage
A Legal and Historical Analysis
May 2026
Written by Atty. Warren F. Muhammad
Introduction
One of the deepest tensions in American constitutional law concerns whether the government may use race as a tool to remedy harms that were themselves inflicted on a racial basis. Since the landmark 1978 Supreme Court decision in Regents of the University of California v. Bakke, this tension has generated a decades-long line of cases culminating in the April 2026 decision in Louisiana v. Callais, which dramatically narrowed the Voting Rights Act of 1965. To fully understand this legal trajectory, one must confront the historical context these decisions inhabit: centuries of state-sanctioned racial oppression against Native Americans, African Americans, Chinese immigrants, and Mexican Americans.
This analysis traces the legal lineage from Bakke to Callais, examines the historical injustices those decisions must be understood against, and explores the core constitutional contradiction at the heart of the Court's evolving jurisprudence.
Part I: The Historical Foundation
American law cannot be understood in isolation from the explicitly race-based system of hierarchy that the government constructed and enforced for centuries. This history was not incidental — it was structural and legal.
Native Americans: Genocide and Dispossession
Federal law was used as an instrument of dispossession and cultural destruction against Indigenous peoples. The Indian Removal Act of 1830 authorized the forced relocation of Southeastern nations, resulting in the Trail of Tears and the deaths of
thousands. The Dawes Act of 1887 stripped tribal nations of approximately 90 million acres through forced allotment, dismantling communal land ownership. Federal boarding school policies mandated the removal of Native children from their families with the explicit goal of cultural erasure. These were not private acts of prejudice — they were legislated, funded, and enforced by the United States government on explicitly racial and ethnic grounds.
African Americans: The Constitutional Sanction of Slavery
What makes the history of African American oppression uniquely foundational to this legal analysis is that slavery was not merely tolerated by the Constitution — it was affirmatively protected by it. The Framers, fully aware that slavery was incompatible with the Declaration of Independence’s assertion that “all men are created equal,” nonetheless embedded protections for the institution into the document itself in at least three distinct provisions.
The Three-Fifths Clause (Article I, Section 2)
Article I, Section 2 of the original Constitution provided that, for purposes of apportioning congressional representation and direct taxes, enslaved persons would be counted as three-fifths of a free person. The clause read: “Representatives and direct Taxes shall be apportioned among the several States … by adding to the whole Number of free Persons … three fifths of all other Persons.”
The Three-Fifths Clause had profound political consequences. It gave slaveholding states disproportionate representation in Congress and in the Electoral College, since enslaved people were counted toward representation but denied any political rights whatsoever. This structural advantage allowed Southern slaveholders to dominate the federal government for the first seven decades of the Republic. Eight of the first twelve U.S. presidents were slaveholders; the Speaker of the House was a slaveholder for 28 of the Constitution’s first 35 years. The clause did not merely acknowledge slavery — it amplified the political power of those who practiced it, at the direct expense of those who were enslaved.
The Slave Trade Clause (Article I, Section 9) — Constitutional Protection Until 1808
Article I, Section 9 prohibited Congress from abolishing the international slave trade before 1808: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” This was not a passive omission — it was an active constitutional guarantee to slaveholding states that the federal government could not interfere with the transatlantic slave trade for at least twenty years after ratification.
The provision was so important to slaveholding states that it was made unamendable during that period under Article V, which prohibited any amendment affecting this clause before 1808. The Constitution’s own amendment process was locked to protect the slave trade. Congress did abolish the international slave trade in 1808, the first year it was permitted to do so — but by then a self-sustaining domestic slave population had
been established, and the internal slave trade continued legally until the Thirteenth Amendment in 1865.
The Fugitive Slave Clause (Article IV, Section 2)
Article IV, Section 2 required that enslaved persons who escaped to free states be returned to their enslavers. This clause meant that free states were constitutionally compelled to participate in the enforcement of slavery. The Fugitive Slave Acts of 1793 and 1850 implemented this mandate, and the Supreme Court in Prigg v. Pennsylvania (1842) upheld the federal government’s power to override state laws that attempted to protect escaped enslaved persons.
Dred Scott v. Sandford (1857): The Judicial Apex of Constitutional Racism
The Supreme Court’s decision in Dred Scott v. Sandford (1857) represents the judicial system’s most explicit endorsement of racial hierarchy as a constitutional matter. Chief Justice Roger Taney held that African Americans — whether enslaved or free — were not and could never become citizens of the United States, and had “no rights which the white man was bound to respect.” The Court further held that Congress lacked power to prohibit slavery in the territories, invalidating the Missouri Compromise of 1820 and striking down a legislative attempt to limit slavery’s geographic spread.
Dred Scott was not a distortion of the constitutional text — it was, in significant measure, a faithful reading of a document deliberately structured to protect slavery. It took a Civil War and the Reconstruction Amendments — the Thirteenth (abolition), Fourteenth (equal protection and citizenship), and Fifteenth (voting rights) — to constitutionally repudiate what the original document had sanctioned.
African Americans: Slavery and Its Aftermath
For 246 years, African Americans were enslaved under a legal system that treated human beings as property transferable by race. The Thirteenth Amendment (1865) formally abolished slavery, but it was followed almost immediately by Black Codes that reimposed forced labor through vagrancy laws and convict leasing. The Supreme Court’s decision in Plessy v. Ferguson (1896) constitutionalized "separate but equal" segregation, which remained law for nearly 60 years. Even after Brown v. Board of Education (1954), African Americans were systematically excluded from the wealth-building programs of the New Deal and the GI Bill through facially neutral policies administered by segregated agencies.
Chinese Americans: Exclusion and Exploitation
Chinese immigrants were imported as exploited labor to build the transcontinental railroad, then made the sole ethnic group in American history to be explicitly banned from naturalization by name. The Chinese Exclusion Act of 1882 prohibited Chinese laborers from entering the United States and barred Chinese immigrants already here from becoming citizens. The Supreme Court upheld the Act’s constitutionality in Chae Chan Ping v. United States (1889). During World War II, Japanese Americans — but not German or Italian Americans — were subjected to mass incarceration, a policy
upheld in Korematsu v. United States (1944), a decision not formally repudiated by the Court until 2018.
Mexican Americans: Treaty Betrayal and Segregation
The Treaty of Guadalupe Hidalgo (1848) promised citizenship and land rights to Mexican nationals in territory acquired by the United States. Those protections were systematically ignored as Anglo settlers and courts stripped Mexican American landowners of their property. Mexican American children were subjected to formal school segregation — a practice struck down in Mendez v. Westminster (1947) — and in the 1950s, the federal government conducted “Operation Wetback,” a mass deportation campaign that forcibly removed over a million people, including many U.S. citizens.
Part II: Regents of the University of California v. Bakke (1978)
Against this backdrop, the University of California at Davis School of Medicine implemented a special admissions program reserving 16 of 100 seats for minority applicants. Allan Bakke, a white male who was twice denied admission despite higher grades and test scores than many admitted minority applicants, sued on the grounds that the quota system violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.
The Court's Fractured Ruling
The Court issued six separate opinions and produced two 5-4 majorities with opposing conclusions, unified only by Justice Lewis Powell’s controlling opinion. The Court held: (1) that the rigid racial quota system was unconstitutional and Bakke must be admitted; and (2) that race could still be considered as one of many holistic factors in admissions decisions, as the Equal Protection Clause does not mandate absolute color-blindness.
Justice Powell’s key contribution was the “diversity rationale” — that the state had a compelling interest in educational diversity rooted in the First Amendment, and that race could be one element in individualized consideration without becoming a determinative factor.
The Dissent's Historical Argument
Justice Thurgood Marshall’s dissent directly invoked the historical record. He argued that the Fourteenth Amendment was written precisely to remedy the condition of African Americans, and that a Constitution that for 200 years failed to prevent their oppression should not now be interpreted as a barrier to their relief. Justice Blackmun offered the formulation that has defined the debate ever since: “In order to get beyond racism, we must first take account of race. There is no other way.”
Part III: The Legal Lineage from Bakke to Callais
Bakke established the anti-classification principle — that racial classifications must be subject to strict scrutiny regardless of which racial group they burden or benefit. Subsequent decisions progressively tightened this principle.
Grutter v. Bollinger (2003)
The Court reaffirmed Powell’s diversity rationale, holding that the University of Michigan Law School’s holistic, race-conscious admissions program was constitutional. Justice O’Connor’s majority opinion notably predicted that race-conscious admissions would no longer be necessary within 25 years. The companion case, Gratz v. Bollinger (2003), struck down Michigan’s undergraduate point-based system as insufficiently individualized — a direct echo of Bakke’s prohibition on rigid quotas.
Shelby County v. Holder (2013)
The Court struck down the coverage formula of Section 4 of the Voting Rights Act, which had determined which jurisdictions with histories of racial discrimination in voting must obtain federal preclearance before changing their voting laws. Chief Justice Roberts’ majority held that the formula was outdated and violated principles of “equal sovereignty” among states. Critically, the decision did not formally repudiate the VRA’s constitutionality, but it rendered Section 5’s preclearance requirement inoperative — effectively gutting the Act’s core enforcement mechanism.
Students for Fair Admissions v. Harvard (2023)
The Court overruled Grutter entirely, holding that race-conscious university admissions programs at Harvard and UNC were unconstitutional. Chief Justice Roberts’ majority held that universities had failed to measure the benefits of diversity with sufficient clarity and that the programs lacked a logical endpoint, violating the Equal Protection Clause. Justice Jackson’s dissent argued that the majority’s colorblind framework “locks in” the inequality produced by centuries of race-conscious oppression.
Part IV: Louisiana v. Callais (April 29, 2026)
The most recent and consequential application of this lineage arrived on April 29, 2026. Louisiana, whose population is approximately one-third Black, had drawn a congressional map with only one majority-Black district out of six. After federal courts found this likely violated Section 2 of the Voting Rights Act — which prohibits racial discrimination in voting — Louisiana drew a remedial map with two majority-Black districts, leading to the election of Rep. Cleo Fields. A group of “non-African American” voters then sued, arguing that the remedial map itself constituted an unconstitutional racial gerrymander.
The 6-3 Decision
Justice Alito, writing for the six-justice conservative majority, held that compliance with Section 2 of the VRA could not justify Louisiana’s use of race in drawing the remedial map. The majority introduced a new, heightened standard: Section 2 now imposes
liability only when evidence supports a strong inference that a state intentionally drew districts to deprive minority voters of opportunity because of race. This shift from an outcomes-based to an intent-based standard dramatically raises the burden on plaintiffs challenging discriminatory maps.
Alito’s core reasoning — that Section 2 “was designed to enforce the Constitution, not collide with it” — is the direct descendant of the anti-classification logic first articulated in Bakke: that the Constitution’s prohibition on racial discrimination applies universally, and cannot be set aside even to remedy racial disadvantage.
The Dissent
Justice Kagan’s dissent, joined by Sotomayor and Jackson, argued that the decision eviscerated the Voting Rights Act’s core purpose and provided states with a roadmap for returning to pre-1965 discriminatory practices. The dissent emphasized that Congress reauthorized the VRA as recently as 2006 with overwhelming bipartisan majorities, and that the majority had substituted its own policy judgment for the expressed will of the legislature.
Part V: The Core Constitutional Contradiction
The historical record described in Part I and the legal trajectory described in Parts II through IV produce a fundamental tension that the Court has never squarely resolved:
• The government explicitly used race as a legal instrument to construct a hierarchy of privilege and deprivation over several centuries.
• The Equal Protection Clause of the Fourteenth Amendment was enacted specifically to remedy the condition of formerly enslaved people.
• The current Court’s majority interprets that same clause to prohibit race-conscious remedies for race-based harms, on the theory that the Constitution is colorblind.
• No comprehensive reparative framework — no reparations, no meaningful land restoration, no truth and reconciliation process — has been adopted at the federal level to address these accumulated harms.
The majority’s answer to this contradiction is procedural: the Equal Protection Clause protects individuals, not groups, and cannot be applied asymmetrically. The dissent’s answer is contextual and historical: colorblindness applied to a color-structured society does not produce neutrality — it perpetuates advantage.
The distinction the dissenters draw — and which critics of the Bakke line argue has been consistently obscured by the majority — is between racial classification as subordination and racial classification as remedy. Enslaving someone because of race and drawing a voting district to ensure the descendants of enslaved people have meaningful political representation are not morally equivalent acts, even if both involve race as a legal category. The current Court majority rejects this distinction; its critics argue that rejection is what makes the Court’s claimed neutrality illusory.
Conclusion
From Bakke in 1978 to Callais in 2026, the Supreme Court has progressively expanded the anti-classification principle into an instrument that restricts race-conscious remedies in education, voting, and redistricting. The logic is internally consistent: if the Constitution prohibits government from sorting people by race, it prohibits it categorically.
But whether that logic is adequate to the history it operates within is a question the Court has declined to answer. The genocides, enslavements, exclusions, and expulsions documented in Part I were not private wrongs. They were government-engineered, legally codified, and systematically enforced. A jurisprudence that invokes equality to foreclose remediation of those wrongs without grappling honestly with that history risks — in the words of Justice Blackmun — allowing “color blindness to become myopia.”
What remains unresolved in American law is whether constitutional equality means identical treatment regardless of history, or whether it demands proportionate redress of a hierarchy the law itself created. Callais is the latest, but almost certainly not the final, word on that question.
