A COLOR BLIND CONSTITUTION: Keywords: Louisiana vs Callais, Supreme Court decision, redistricting, racial bias, Civil Rights, voting rights, Justice Clarence Thomas, Justice John Marshall Harlan, segregation, Dixiecrats, LBJ

Demonstrators in front of the Supreme Court protesting against the Supreme Court's decision

A COLOR BLIND CONSTITUTION,

IT WAS ABOUT TIME!!!!

A meditation about the Callais Landmark Case

by Xuan Quen Santos

 

                It was about time! The Supreme Court of the United States of America, on Wednesday 29 of 2026, ended the era of compensatory discrimination that favors minority groups that have continued to play victims of the era of legal slavery that ended in 1870. It will be known as the “Louisiana vs Callais” landmark case.

                The approval of the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution was a significant event in the Reconstruction era following the Civil War. They became law between 1865 and 1870. They are known as “The Reconstruction Amendments”. They abolished slavery, established birthright citizenship for the children of slaves born in the United States and prohibited racial discrimination in voting. They were followed by the Civil Rights Act of 1875. After a few years, the Democratic Party in the deep south perverted the constitutional corrections  which led to the era of Jim Crow and legal segregation. Its effects in the economy of the south from suppressing great numbers of its human capital were clear for decades. As the country moved forward, the Deep South remained poor and backward. The southern Democratic Party members began to be identified as Dixiecrats by using voter suppression to retain political control.

                For decades, the radical wing of the Republican Party promoted changes in the area that is now known as Civil Rights. The Dixiecrats who had control of the Supreme Court during the post-Civil War, opposed any corrective legislation. In fact, they allowed the institutionalization of discrimination by race with the approval of another Louisiana related decision known as the infamous case of “Plessy v. Ferguson” (1896) that legalized racial segregation.  A test case involving the seating on passenger railroad cars was used to set the policy. From then on, the Dixiecrats ruled in the south by systemic racist violations of the basic rights of nearly half of their citizens for another half a century.

                After the timid desegregation of the armed forces during WW II, under the leadership of the victorious Supreme Commander of the Allied Forces, and  recently elected Republican President Eisenhower, the Supreme Court  declared racial segregation in public schools unconstitutional in the case of “Brown v. Board of Education” (1954).  It was followed by the Civil Rights Act of 1957.  To enforce it, the Federal government had to send armed military support to open the schools. The Democratic Party called for its first “resistance” movement by the people of the south, obviously, they meant the “white” people.  A long decade of “forced integration” of the school systems followed, accompanied by an ever increasing wave of political violence. During this period, the Republican Party continued to promote comprehensive legislation during the Kennedy years. It was always blocked by the Democratic Party, among them members of the KKK in Congress, and the Texan Vice-President Lyndon Johnson. Until recently, famous filibusters of that era had the record for the longest speeches. But then, circumstances changed. After a number of prominent political assassinations, among them MLK’s, added to the anti-Vietnam war public sentiment, and very likely internal opinion polls, LBJ was convinced he would not be elected to the presidency. Instead, he took the wind out of the Republican sails and negotiated the approval of the Civil Rights Acts of 1964 and 1968.

                Simultaneously, LBJ launched “the War on Poverty”. The new policy package resulted from his calculation that the elimination of segregation would increase the number of new black voters in the south that would soon vote Republican. At the same time, many white Democratic Party members  were expected to leave because of the concessions made to black communities. The War on Poverty ended up creating 226 legal dispositions aimed at black voters with new programs of assistance and entitlements. This created what some African-American scholars have labeled “the new urban plantations” of black voters. It worked. Gradually, the Democratic Party harvested majority black voters that have become their key voting bloc. The future of those voting blocs that have become dependents on government programs that keeps them in poverty is what is at stake. In more recent years, “affirmative action” and DEI policies clearly promoted racial quotas to privilege “protected classes”, mainly based on race and ethnicity.

Exaggerations and politically biased headlines will be abundant 

                The case in question of “Louisiana v. Callais” struck down a congressional map that a group of non-black voters denounced as unconstitutional racial gerrymandering. By a vote of 6-3, the justices left in place a ruling by a lower federal court that barred the state from using the map, which had created a second majority-Black district as its intent.

                Justice Alito delivered the opinion of the Court, in which Justices Roberts, Gorsuch, Kavanaugh and Barret joined. Justice Thomas filed a concurring opinion. In opposition, Justices Kagan, Sotomayor and Jackson dissented.

                The opinion of the Supreme Court states:  “ Section 2 of the Voting Rights Act of 1965, 52 U. S. C. section10301 et seq., was designed to enforce the Constitution— not collide with it. Unfortunately, lower courts have sometimes applied this Court’s section 2 precedents in a way that forces States to engage in the very race-based discrimination that the Constitution forbids.”

                The concurring opinion of Justice Clarence Thomas is memorable. He is not just of African-American descent, he is only the second black jurist to integrate the court in its history. More significant than that is his personal history. From a humble Georgia family of the coast with origins in slaves brought from West Africa, he was brought up by his working mother and grandparents. As a child, he went through periods of homelessness and instability. He was raised with the values of hard work and high aspirations; he excelled in academics and professionally. He is an “originalist”, a true believer in the letter, spirit and background of our original framework. He is a conservative. His opinion is historic.

I join the Court’s opinion in full.  This Court should never have interpreted Section 2 of the Voting Rights Act of 1965 to effectively give racial groups “an entitlement to roughly proportional representation.” By doing so, the Court led legislatures and courts to “systematically divide the country into electoral districts along racial lines”. “Blacks were drawn into ‘black districts’ and given ‘black representatives’; Hispanics were drawn into Hispanic districts and given ‘Hispanic representatives’; and so on.”  That interpretation rendered Section 2 “repugnant to any nation that strives for the ideal of a color-blind Constitution.” Today’s decision should largely put an end to this “disastrous misadventure” in voting-rights jurisprudence.

            What struck me was Justice Thomas' use of the phrase “a color-blind Constitution”. It has a long history by itself, very much a key in the discussion of this case by the Supreme Court.

Well prepared and well financed protests. Who is behind them?

            The 1896 U. S. Supreme Court case of “Plessy v. Ferguson” has been recognized as one of its darkest moments. The Court approved the principle of separate but equal that legalized color segregation in the southern states. The one courageous dissenter against the decision was Kentuckian, Associate Justice John Marshall Harlan (1833-1911), a former slave owner himself.

            The decision of the Court was in reference to the constitutionality of a Louisiana law that allowed the railroads using inter-state lines to segregate people by the color of their skin and creating separate seating sections. These are the key words of Harlan’s dissent:

            "In the eyes of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here”…“Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”…  “The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds."

                Harlan also warned that the decision would poison relations between the races and destroy the possibilities of harmony.

                "What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation."

                His opinion has been labeled “The Great Dissent”. It proved prophetic but it also opened the way for the Civil Rights movement. After writing dissents that defended the rights of black citizens violated as Plessy did, he was attacked by many politicians and editors. Many black personalities expressed appreciation and offered encouragement, including the most visible black leader of the day, Frederick Douglass, with whom Harlan maintained warm relations for more than two decades.

                In 1908, the Court upheld Kentucky's infamous Day Law, which banned integrated education in private schools. The law was aimed at Berea College, which had been integrated since its opening in 1866. In that dissent, Harlan asked:

                "Have we become so inoculated with prejudice of race that an American Government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races?"

                Many have speculated about Harlan’s change of heart. In his early days as a lawyer and politician, he had defended the “odious institution”. His father was a prominent politician in Kentucky who owned slaves for his household. Then, most of the slave states seceded and the Civil War ensued. Kentucky was one of a few states that remained loyal to the union. After the war, slavery in the law became a thing of the past. The old parties that had supported it disappeared, but in the south it just changed name. Harlan became a Republican and an ardent defender of the efforts being made to eradicate the legacy of slavery.  There was a reason, a personal reason.  The power of the rules of family, an ancient Law, trumps any legislation of man. The Harlan family secret prevailed.

                Justice Harlan had a slave half-brother named Robert, who was treated discreetly as a member of the family. Their father had tried, unsuccessfully, to send Robert to school along with his other children. He ended up going to a private school for mixed-bloods. Robert lived most of his life in Ohio and did very well, but in the early 1860's with help from the family, he moved to England, to escape the increasing racial tension before the war broke. He returned after the war to recover what he could from the economic catastrophe that followed. Justice Harlan was very much aware of the obstacles racism had created for his brother and for the family to do right. Those family situations were never discussed in public back then, but we can do it now. The terrorism that the Ku Klux Klan and similar groups inflicted upon blacks and abolitionists in Kentucky immediately following the war also pushed Harlan toward the Republicans. Harlan became a good friend of the U. S. Attorney for Kentucky Benjamin Bristow, who prosecuted the white terrorists of the KKK for their campaign of terror by arson, beatings, and murders. Bristow was one of the Republican radicals and a mentor to Harlan.

                If the Constitution is color blind, so must all laws under it. How many times have you had to fill a bureaucratic form that requires you to declare your race, ethnicity or color for no related purpose? Is it for the purpose of gerrymandering? Is it to create privileges for some groups at the expense of the rest? Is it to continue red-lining? Who  is in favor of classifying people by the color of their skin? If you are in favor, black or white, aren’t you a racist, regardless of your intentions or the real color of your skin?

A HARLAN CONSTITUTIONAL AMENDMENT

                The Callais decision of the Supreme Court will be the beginning of many reversals and changes. We can get to the point and make it faster. The time has come to give real meaning to Justice Harlan’s statement about how it is that the Constitution is color blind.  It should take the form of an addition to the Bill of Rights by inserting a new item to the First Amendment. It should read as the other parts do, as a clear prohibition to the Federal government about collecting information about the citizen’s race, color or ethnicity, and the prohibition to legislate using those categories to create differences under the law.

 

A note to my frequent readers. This meditation is a response to the Louisiana vs Callais landmark case of the Supreme Court of the United States. Most of the text that was motivated by Justice Harlan’s phrase about a color-blind Constitution was already published in my 2021 book THE AMERICAN WAY: HARMONY IN DIVERSITY (332 pages). I called then for the elimination of all legislation that discriminates on the basis of race or ethnicity, among many other topics of current political interest. If you would like to receive a copy, free of charge, postage included, send me a request with your postal address to XQS2021@gmail.com