In 1965, Herbert Marcuse published Repressive Tolerance and argued that genuine freedom requires discriminating in favor of the Left and against the Right. The essay was provocative, explicit, and widely read on American campuses. Most of its readers understood it as political philosophy — a theoretical argument, not a policy prescription.
But Marcuse's conceptual structure — the idea that neutrality is a form of oppression, that equal treatment perpetuates unequal outcomes, and that correcting historical injustice requires systematically differential treatment — migrated from political theory into American law. Nowhere is that migration more visible, or more constitutionally contested, than in the decades-long battle over race-conscious redistricting.
The Ideology: From Tolerance to Equity
Marcuse's central move was to reframe neutral rules as substantively biased. Abstract tolerance — treating all viewpoints equally — is, in his account, actually "repressive" because it legitimizes a status quo built on exploitation. True liberation requires something different: "intolerance against movements from the Right and toleration of movements from the Left."
The political translation of this framework is equity. Not equality — meaning equal rules applied without regard to group identity — but equity, meaning differential treatment calibrated to produce equal outcomes for historically disadvantaged groups. Equity, in the modern progressive usage, is liberating tolerance applied to institutions.
The question the Constitution poses is whether equity — systematic differential treatment based on race — is compatible with the guarantee of equal protection. The Fourteenth Amendment says something quite specific.
The Fourteenth Amendment: Equal Protection
Section 1 of the Fourteenth Amendment contains two closely related commands: the Due Process Clause and the Equal Protection Clause. The Equal Protection Clause says: "No State shall... deny to any person within its jurisdiction the equal protection of the laws."
The language is striking in its universality. It does not say "equal protection for formerly enslaved persons." It does not say "equal protection for racial minorities." It says any person. The drafters of the Fourteenth Amendment, fresh from the catastrophe of the Civil War, chose language broad enough to protect everyone — precisely because they understood that racial classifications in law, once permitted, have no principled stopping point.
Justice John Marshall Harlan's famous dissent in Plessy v. Ferguson (1896) put it plainly: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." For most of the twentieth century, this colorblind reading was the aspiration. The question of whether it is a constitutional command or merely an aspiration is at the center of the redistricting debate.
The Voting Rights Act and Section 2
The Voting Rights Act of 1965 was enacted under the authority of the Fifteenth Amendment, which prohibits denying the right to vote on account of race.
Section 2 of the VRA — not to be confused with Section 2 of the Fourteenth Amendment — prohibits voting practices that result in the denial or abridgement of the right to vote on account of race. As amended in 1982, it adopted a "results test": a violation occurs if the electoral process is "not equally open to participation" by members of a protected class in that members "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."
In Thornburg v. Gingles (1986), the Supreme Court established the three-part test for proving a Section 2 vote dilution claim: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) white voters vote "sufficiently as a bloc" to defeat the minority group's preferred candidate absent a specially drawn district.
When all three conditions are met, states are required — under VRA Section 2 — to draw a "majority-minority district": a congressional or legislative district in which members of a racial minority constitute a majority of voters. The purpose is to ensure that minority communities can elect a representative of their choice.
Race-Conscious Redistricting: The Constitutional Tension
Here is where the Marcusean structure enters law directly. The logic of majority-minority districts is: equal treatment (drawing race-neutral maps) produces unequal outcomes (minority communities are "cracked" across districts, diluting their voting power). Therefore, corrective differential treatment (drawing districts specifically to create minority majorities) is required to achieve genuine equality. Neutral process produces biased results; biased process corrects for biased history.
This is equity reasoning. And it rests on exactly the same logical structure as Marcuse's liberating tolerance.
The constitutional problem is that the Equal Protection Clause, as the Supreme Court has held since Shaw v. Reno (1993), subjects race-based redistricting to strict scrutiny — the most demanding standard in constitutional law. A state may classify by race only if it has a compelling interest and its racial classification is narrowly tailored to serve that interest.
The Court has held that complying with VRA Section 2 is a compelling interest. But it has also held that race cannot be the predominant factor in drawing a district — that if racial goals override traditional redistricting principles (compactness, contiguity, political subdivisions), the district violates equal protection.
The tension is structural: VRA Section 2 sometimes requires drawing race-conscious districts, while the Equal Protection Clause subjects those same districts to strict scrutiny. Navigating between these requirements has generated decades of litigation with no stable resolution.
Allen v. Milligan and the Ongoing Battle
In Allen v. Milligan (2023), the Supreme Court held 5–4 that Alabama's congressional map violated VRA Section 2 by failing to create a second majority-Black congressional district. Chief Justice Roberts joined the four liberal justices, applying the Gingles framework and reaffirming that VRA Section 2 remains in force.
Justice Thomas dissented, arguing that the Gingles framework produces "a system of racial proportionality" incompatible with equal protection. In Thomas's view, the VRA cannot constitutionally require race-conscious redistricting because the Constitution demands colorblind government. His dissent invoked a principle he has advanced across multiple cases: the Equal Protection Clause "prohibits all racial discrimination by government" — not just discrimination against minorities, but discrimination by government, including discrimination favoring minorities.
The redistricting landscape continued to evolve after Allen v. Milligan. State legislatures redrew maps under court orders; new challenges followed. The fundamental question — whether VRA Section 2's results test can coexist with the colorblind constitution — remains unresolved.
Section 2 of the Fourteenth Amendment: The Unenforced Clause
The provision that is almost entirely forgotten but constitutionally fascinating. Section 2 of the Fourteenth Amendment — distinct from the Equal Protection Clause in Section 1 — deals with congressional apportionment. It provides that if a state denies the right to vote to any male citizen over 21, its basis of representation in Congress shall be proportionally reduced.
Section 2 was the Reconstruction Congress's first attempt to protect Black voting rights. It was designed as a structural incentive: if you exclude Black voters from the ballot, you lose House seats proportional to the excluded population. The Radical Republicans who drafted it hoped it would pressure Southern states to enfranchise freed slaves without requiring a direct mandate.
It never worked. Southern states accepted the loss of representation rather than enfranchise Black citizens. Section 2 has never been enforced by Congress or litigated to a definitive Supreme Court ruling. The Fifteenth Amendment (1870) superseded its purpose by directly prohibiting race-based denial of voting rights.
But Section 2's structure is instructive for the broader debate. It was a proportionality mechanism — representation scaled to actual enfranchisement. It acknowledged that political outcomes should reflect the actual population of voters. This is a different principle from VRA Section 2's results test, but both share the premise that formal equality of rules is insufficient when historical exclusion has produced structural inequality.
The Constitutional Answer
The deepest tension in this area of law is between two genuine values, both rooted in the founding. The first is colorblind equality under law — the principle that the government may not classify or treat citizens differently based on race. The second is the Reconstruction amendments' specific purpose of dismantling the racial caste system and ensuring that formerly enslaved people became full participants in democratic life.
Marcuse would have said these values are irreconcilable, and that choosing colorblind rules over remedial race-consciousness is choosing the oppressor's side. But the constitutional tradition offers a different answer: both values are real, both must be respected, and the resolution requires fidelity to text and history rather than ideological preference.
The Fourteenth Amendment's Equal Protection Clause commands equal treatment of all persons. The Fifteenth Amendment commands that voting rights not be denied on racial grounds. The VRA translates those commands into enforceable law. The constitutional limits on race-conscious remedies reflect the Court's judgment that racial classification — however benevolent its intent — is inherently dangerous in a government that claims equal protection as its promise.
Justice Thomas has been the most consistent voice for the colorblind reading, arguing that any government racial classification — remedial or otherwise — violates equal protection. His position is not, as critics sometimes suggest, indifference to racial inequality. It is a principled reading of the Constitution's text, combined with a deep suspicion of government's ability to classify benevolently. The history of racial classification in America gives that suspicion considerable force.
The Marcusean answer — that differential treatment in favor of historically oppressed groups is just, and that objecting to it is itself a form of oppression — is ideologically coherent but constitutionally untenable. The Constitution does not divide Americans into oppressor and oppressed classes entitled to different legal treatment. It guarantees equal protection to all persons. That universality is not a bug; it is the founding commitment that makes the constitutional order possible.
What to Watch
The redistricting debate in 2026 is active on multiple fronts:
- Proportionality vs. opportunity: courts continue to wrestle with whether VRA Section 2 requires racial proportionality in representation or only an equal opportunity to participate
- Racial vs. partisan gerrymandering: after Rucho v. Common Cause (2019) held that federal courts cannot adjudicate partisan gerrymandering claims, the question of whether racial and partisan motives can be disentangled remains contested
- Section 2 viability: the 5–4 decision in Allen v. Milligan preserved VRA Section 2 by a single vote; future cases and Court composition will determine whether that holding holds
- Section 2 of the 14th Amendment: academic proposals to enforce the apportionment reduction mechanism against states that suppress minority voting have gained attention, though no court has adopted this theory
The thread running through all of these disputes — from Marcuse's study to the redistricting courtroom — is the same question: does equal protection mean equal rules, or does it mean equalized outcomes? The Constitution's answer, at its clearest, is the former. The ongoing fight is about whether that answer will hold.