by Ticharwa Masimba

Introduction

Something strange is happening to civil rights law inside the U.S., and the strangeness should not be dismissed.

The Voting Rights Act is being gutted, not by politicians arguing that black votes shouldn’t count, but by Supreme Court majorities invoking the Equal Protection Clause, the same constitutional principle the Civil Rights Movement used to challenge segregation. The Civil Rights Act’s enforcement mechanisms are being stripped out, not by legislators arguing that racial discrimination is acceptable, but through executive orders with titles like “Restoring Equality of Opportunity and Meritocracy” and “Ending Illegal Discrimination.” The language of civil rights is being used to dismantle civil rights enforcement. The movement’s own vocabulary has been turned against it.

Most commentary calls this backlash, defining it as a reversal, a regression, a return to something older. That framing isn’t exactly wrong, but it misses something. Backlash describes pressure coming from outside a system, pushing it back toward a prior state. What’s actually happening is a cycle that is consistent with the system’s own internal logic. To understand that logic, you need a different frame.

The System Doesn’t Just Resist Change. It Absorbs It.

Start with a basic observation about how structural domination works. Unlike mere inequality, a social order characterized by structural domination requires the extraction of value from one group for the benefit of another. The full apparatus of the state, including its courts, police, legislative bodies, and administrative agencies, is organized to govern the dominant group and manage the dominated group. Critically, this state apparatus functions as a foreign force over the dominated population: it does not represent their interests, did not emerge from their consent, and is not accountable to them even when it formally includes them. They live under its jurisdiction as subjects of a power structured around their subordination, not participants in a polity structured around their representation.

This domination is reproduced through four interconnected mechanisms.¹ First is foreign domination: a state apparatus structurally external to the dominated population’s interests and continuity. Second is control over the forces and sources of production — land, capital, resources, infrastructure, and the means by which wealth and social power are generated and distributed. Third is forced devaluation: the systematic reduction of the dominated population’s labor, life, and social value in ways that make extraction possible and profitable. Fourth is full commodification: the extension of extraction beyond labor alone into the conditions of life themselves, where housing, movement, health, education, care, and social existence become organized around accumulation.

The state apparatus enforces and reproduces these relations. Sometimes the dominant group uses it to resist reform. Other times, it uses it to initiate reform. In both cases, the objective is to preserve the underlying structure of domination and extraction. Over time, institutions develop sophisticated mechanisms for absorbing pressure, redirecting it, and reproducing the structural relation through the very reforms that were supposed to disrupt it.

Utilizing the Colonial Mode of Production (CMP) analysis, political analysts identify this phenomenon as “conservation under reform.”² Like the Law of Conservation of Energy in physics, this principle suggests that the underlying relationship of domination and extraction is conserved, despite reforms initiated from below and precisely because of those initiated from above. This occurs in a few identifiable ways.

The simplest is direct displacement. A specific mechanism of extraction or domination gets targeted and constrained. Extraction or domination reappears somewhere the state apparatus doesn’t reach. Poll taxes were banned; at-large voting systems diluted black voting power instead. Race-based bars on employment were prohibited; facially neutral hiring criteria such as tests, credentials, and physical standards produced the same outcomes through different means. The mechanism changes. The structural relations of dominator and dominated persist. Control over the forces and sources of production and over who has access to them remains concentrated in the same hands.

More sophisticated is reform capture. What happens to the dominated group’s hard-won reforms as those reforms move through institutions controlled by the dominant group? The reform passes, yet it remains starved of funding, stripped of enforcement mechanisms, and abandoned to agencies with no intention of aggressive implementation. It emerges from the institutional process redirected. The law says one thing. The state apparatus that implements it does another.

Direct displacement and reform capture are both reactive; they are responses to reform pressures that have already produced a result. But the most powerful form of conservation is anticipatory. Call it preemptive conservation: a reform is initiated, not by the dominated group, but by the dominant group itself, using its own institutional channels, at the moment when movement pressure has become strong enough that a threatening reform is inevitable, but before that pressure has developed the organizational capacity to demand structural change. The dominant group moves first. It offers a managed version of reform, on its own terms, that narrowly addresses the harm generating the most pressure. The underlying structural relation, based on foreign domination of a population whose labor and life remain forcibly devalued and fully commodified, and whose access to the forces and sources of production remains blocked, is preserved. And the prior reform now becomes the evidence deployed against the movement’s next demand: the system has proven it can self-correct, so arguments that structural change is necessary face a higher burden of proof.

The Voting Rights Act: Managed Dismantling

Preclearance: Dismantling Preventive Enforcement

The preclearance requirement of the VRA was structurally significant in a way that distinguished it from most civil rights legislation. It didn’t just prohibit discriminatory voting practices after the fact. It required jurisdictions with histories of discrimination to obtain federal approval before implementing new voting rules. Rather than waiting for victims to challenge each new exclusion through litigation, it targeted the state apparatus’s capacity to generate new forms of disenfranchisement.

The conservative legal movement spent fifty years building the argument to dismantle it, arguing that the VRA had succeeded so thoroughly that its special provisions were no longer necessary. Discrimination, they claimed, was now largely a matter of history. To continue treating certain states as presumptively suspect was itself a form of inequality. The VRA had done its work. Now, in the name of the equality it supposedly produced, it needed to be retired.

In 2013, Shelby County v. Holder struck down the preclearance formula. The majority didn’t argue discrimination no longer existed. They argued that the formula identifying which jurisdictions needed oversight was outdated. The law remained on the books. The enforcement mechanism was gone. Within hours, several states moved to implement voting restrictions they had previously been blocked from enacting. The exclusion reappeared in the form of redistricting, voter ID requirements, polling place closures, and registration purges. This is direct displacement: the mechanism changes, the structural relation reproduces itself.

Equal Protection: Redrawing Congressional Maps

Section 2’s right to challenge discriminatory maps in court became the last major enforcement tool. Then that too was targeted. On April 29, 2026, the Supreme Court’s decision in Callais cleared the way for Louisiana and other states to engage in vote dilution by striking down a majority-black congressional district. The legal argument doing this work is equal protection. Creating a district that enables black voters to elect a representative of their choice was recast as unconstitutional racial discrimination. The language of the Civil Rights Movement was now being used against the Civil Rights Movement.

The 1982 amendments to Section 2 had produced real gains. Where only 18 black people served in Congress in 1979-1981, by 2025-2027 there were 65 black representatives and five black senators. That progress is now the justification for eliminating the protections that produced it. The system self-corrected. The tools of self-correction are therefore discriminatory. They can go.

The Civil Rights Act: Redefining the Law to Gut the Law

The same logic operates on the Civil Rights Act, but with a more elegant mechanism: rather than declaring the law obsolete, the current project redefines what it prohibits and uses that redefinition to eliminate the enforcement tools that gave it structural reach.

Disparate Impact

The hinge is something called disparate impact liability. When the Civil Rights Act passed in 1964, courts interpreted it to prohibit only intentional discrimination. This left the structural relation almost entirely intact. Employers who controlled access to the forces and sources of production — to jobs, wages, the means of economic survival — could adopt facially neutral criteria that produced the same racial outcomes without visible racial intent. You didn’t need to say “no black applicants.” You just required a high school diploma in a county where black schools had been systematically underfunded for generations. The forced devaluation of black labor continued through mechanisms the law couldn’t see.

In 1971, Griggs v. Duke Power Co. closed that gap, holding that employment criteria producing racially disparate outcomes had to be justified as genuinely related to job performance, regardless of intent. For fifty years, this was the enforcement tool that gave the Civil Rights Act structural teeth: the mechanism that addressed the continuous regeneration of racial hierarchy through nominally neutral criteria.

Discriminatory Intent

The April 2025 executive order “Restoring Equality of Opportunity and Meritocracy” eliminates disparate impact liability to the maximum degree possible, revoking DOJ regulations implementing Title VI and directing the Attorney General to repeal disparate impact standards across all federal agencies. The Civil Rights Act is not repealed. The prohibition on racial discrimination remains in force. What has been removed is the enforcement mechanism that made the prohibition meaningful in practice: the ability to challenge policies that produce discriminatory outcomes even without documented discriminatory intent. The state apparatus now requires proving a kind of discrimination that sophisticated institutions almost never produce in documented form. The forced devaluation of black labor doesn’t require a signed memo. It runs through the structures that determine who owns, who manages, and who serves.

The law remains. Its structural reach is gone.

What if the Acts Themselves Were the Preemptive Move?

Here is where the analysis has to go further, because the revolutionary and radical sectors of the black freedom struggle raised exactly this question, not in retrospect, but in real time, while the legislation was being negotiated. The argument wasn’t marginal. It was being made precisely and loudly by the people inside the movement who understood what was being traded away.

Malcom X: The Ballot or the Bullet

Malcolm X’s “The Ballot or the Bullet,” delivered in April 1964 as the Civil Rights Act was being debated, was not an argument that the legislation was insufficient or would eventually be rolled back. It was an argument that formal legal equality — the right to vote, the right to sit at a lunch counter — left the structural relation completely intact. Political inclusion without national liberation meant the black population would be formally admitted to a system organized around their continued subordination. The dominant group retained control over the forces and sources of production. The state apparatus remained foreign to the dominated population’s interests. The vote gave you access to a colonial machine that someone else controlled.

Fannie Lou Hamer: Two Seats Ain’t Enough

The sharpest concrete test came at the 1964 Democratic National Convention, where the Mississippi Freedom Democratic Party (MFDP) challenged the credentials of Mississippi’s all-white delegation. The MFDP had done everything the formal democratic process required — organized under genuinely dangerous conditions, registered voters, run candidates, and arrived with a legitimate procedural claim. Lyndon Johnson, through Hubert Humphrey, offered a compromise: two symbolic at-large seats, no voting power, a promise that future conventions would be integrated. The MFDP, led by Fannie Lou Hamer, rejected it. Hamer described the logic with precision: the compromise was designed not to include black political power but to prevent the conditions under which black political power could actually develop.

That episode has the complete signature of preemptive conservation. It was institutionally managed and publicly credited. The Democratic Party demonstrated its willingness to reform. It addressed the narrow visible harm — the exclusion of black delegates — while preserving the structural relation, which was about who controlled the party apparatus, the nominations, the policy agenda, the state apparatus. It was followed by conditions in which the MFDP’s more radical challenge became politically harder to mount, because the party could now point to its demonstrated good faith.

Derrick Bell: The Limits of Converging Interests

One theoretically developed version of this argument came from legal scholar Derrick Bell, whose interest convergence thesis (1980) rejected the idea that blacks in the U.S. achieve progress when sufficient pressure is made from below. He instead held that they achieve significant racial gains only when those advances align with the interests of white elites. Bell’s specific argument about Brown v. Board of Education (1954) was that the decision was enabled by Cold War conditions: U.S. apartheid had become an international liability that the Soviet Union was exploiting among newly decolonizing countries in Africa and Asia. The federal government needed a justification. When that convergence ended — when the justification had been claimed, when the Cold War rationale faded — enforcement followed it into decline.

The same structure applies to the Civil Rights Act and VRA. Birmingham and Selma were international crises. U.S. colonial apartheid, broadcast on television, was damaging the settler population’s self-presentation to the world at precisely the moment its foreign policy depended on presenting itself as leader of the “free world.” The reforms were enabled by that convergence. They addressed the surface manifestations, including fire hoses, literacy tests, and lunch counter segregation, that were generating the most damaging global images. They left untouched what actually structured the dominated population’s subordination: control over the forces and sources of production, the property relations, the patterns of capital ownership, and the systematic forced devaluation of black life and labor that those patterns required and reproduced.

Dr. King: The Need for a Radical Redistribution of Power

King said this directly in 1967, in what may be the clearest statement of the preemptive conservation critique from inside the movement’s mainstream: “The reforms we have achieved so far have cost the nation nothing. Desegregation of lunch counters cost nothing. The right to vote cost nothing economically. But now we are dealing with issues that cannot be solved without the nation spending billions of dollars and undergoing a radical redistribution of economic power.”

The March on Washington in 1963 was not primarily a march for the Civil Rights Act. Its full name was the March on Washington for Jobs and Freedom. The economic demands, including guaranteed employment, fair wages, and access to the sources of production and capital, were the structural core. They were also the demands that disappeared from the political agenda after the legislation passed. The reforms that were granted were exactly the ones that cost nothing structurally: they reorganized the surface of domination without touching the economic base in which it was rooted. The reforms that targeted the relation itself, including the Poor People’s Campaign, the economic bill of rights, and the demand for redistribution of the productive apparatus, never happened.

Acts Designed to Contain Transformation

What this means is uncomfortable: the current dismantling of the VRA and CRA is not simply conservation operating on the achievements of the Civil Rights Movement. It is a second-order move. The preemptive reforms, the Acts themselves, absorbed the movement’s momentum, produced real but limited gains, and established a justification the system would spend the next sixty years deploying against deeper structural demands. Now that the political conditions requiring the justification have changed, the justification itself can be eliminated. And its elimination can be framed in the civil rights vocabulary the justification itself established.

The equal protection argument that dismantled the VRA is coherent within the legal framework the Civil Rights Movement built. That is not an accident. It is how absorbed reform works.

Two Strategies, One Structure

It’s important to be honest about what the radical and revolutionary critique got right and what it didn’t fully resolve, because the tension between the two strategies inside the black freedom struggle was real and remains unresolved.

Revolution Without Reform

The radical wing was analytically correct: the CRA and VRA preserved the structural relation. Formal legal equality without genuine power over the forces and sources of production and the state apparatus left the relations of domination and extraction intact. The reforms would be used against more substantive demands. All of that has proven true.

The state apparatus murdered Malcolm X, Martin Luther King Jr., and Fred Hampton. It imprisoned, surveilled, and systematically destroyed the organizational capacity of the Panthers and allied formations through a coordinated federal campaign of infiltration, fabricated evidence, and targeted killing, known collectively as COINTELPRO. The radical wing did not simply fail to build sufficient power; it was hunted.

With the murder and imprisonment of the revolutionary and radical sector of the black freedom struggle, the movement has continued to reject the path of managed reform. That rejection remains analytically correct. But refusing the managed reform does not automatically produce the more disruptive reform. SNCC rejected the reformist framework, the MFDP rejected the two seats,  and the Black Panther Party largely rejected the civil rights law as sufficient terrain. These were coherent positions that did not, on their own, translate into structural disruption. The result, in the absence of the organizational capacity that state violence had destroyed, was isolation.

Reform Without Revolution

Meanwhile, those limited gains were not nothing. The people who voted under the VRA and are now being disenfranchised because it was gutted are materially worse off. Workers who had disparate impact claims that are now foreclosed, and whose only legal recourse against the forced devaluation of their labor has been removed, were not served by a framework that stopped at saying the system would absorb the reform anyway. The fact that the VRA was preemptive doesn’t make its dismantling costless. Both things are true simultaneously.

The trap the framework illuminates is not “reformism vs. revolution” as competing strategic options. It is a structural feature of how the state apparatus processes both. Reforms that target surface harms are absorbed; the structural relation migrates into another domain of life. Refusals of managed reform, without the organizational capacity to force structural disruption, produce isolation. The system is not primarily threatened by either the reformist or the radical strategy in isolation. What it cannot easily absorb is a movement that does both simultaneously: one that fights for the restoration of the VRA while refusing to accept that restoring the VRA is what the fight is about.

The Question the Current Moment Forces

What is actually being contested right now is not whether formal legal equality should be preserved or dismantled. That is the terrain the white power structure has chosen, and it is terrain it controls. It controls the courts, the executive enforcement apparatus, the legislative calendar. On that terrain, the fight is over whether to restore the managed reform or accept its elimination.

The Danger of Managed Reform

The deeper question — the one the revolutionary tradition asked and the current moment makes newly urgent — is what formal legal equality was always insufficient to do, and what would it mean to name that insufficiency publicly while also fighting for the formal protections. In other words, we must explain why the Civil Rights and Voting Rights Acts were necessary, yet predictably insufficient from the start without a deeper, structural struggle over who controls the state apparatus, who controls the sources of production, and whether the forced devaluation and full commodification of black life and labor can be ended by formal inclusion alone.

The dangerous move, from the perspective of conservation under reform, is exactly the move that has largely been made: accepting a debate framed entirely around whether the reform should be maintained, rather than asking what the reforms always failed to guarantee. A movement that can only defend the VRA, and cannot simultaneously explain why black voters’ political power has remained constrained even when the VRA was intact — because the state apparatus remained structurally external to their interests, because the forces and sources of production remained outside their control — has handed the dominant group the terms of the argument. It can now claim that eliminating the VRA restores colorblind equality, and the response is limited to defending a law that was itself a preemptive response to demands it was designed to frustrate.

Reforms That Preserve and Reforms That Disrupt

The political theorists working in this tradition suggest that the difference between reforms that disrupt structural relations and reforms that preserve them is largely a question of what they target. Reforms aimed narrowly at specific visible harms are manageable: address the harm, celebrate the reform, and preserve the structure. Reforms aimed at the structural relation itself, including foreign domination of a population whose labor and life are commodified and devalued, and concentrated control over the forces and sources of production, are much harder to preempt.

What that means concretely is something the revolutionary tradition has said in many forms. A movement that can clearly name what it is actually fighting for is much harder to absorb into the existing order. That means fighting not merely for the right to vote within a system organized around your subordination, but for real power over the conditions of your life and labor.

A movement organized around that kind of demand is difficult to manage because the system has no partial or symbolic version of it to offer. By contrast, a movement that only fights for formal inclusion within the existing system can often be absorbed precisely because inclusion can be granted without fundamentally transforming the underlying relations of power.
Tactical Victory and Strategic Defeat

The VRA is not being dismantled because the Civil Rights Movement failed. It is being dismantled because it succeeded. It succeeded through equal protection arguments, through the language of colorblindness, through the movement’s own legalistic vocabulary. Yet it succeeded in precisely the ways the revolutionary tradition warned would be insufficient. From the outset, both Acts were watered-down compromises designed to evade deeper structural change — leaving untouched the foreign domination of the state apparatus, the concentrated control of production, and the systematic devaluation and commodification of black life and labor that gave the structure its economic foundation. This gap allowed the white power structure to neutralize what it could not defeat. This legal protection is now being revoked because it was shaped from the beginning around the short-term interests of a sector of the ruling class, and is no longer needed. Ironically, the very argument used to revoke it is the one the movement taught the country to make.

Understanding that is not a reason for despair. It is a precondition for thinking clearly about what the fight is actually for.

Footnotes

¹ The “Four F’s” refer to the core mechanisms identified by the Colonial Mode of Production: foreign domination, control over the forces and sources of production, forced devaluation, and full commodification. Together, they describe a structural relation in which a dominated population’s political authority, productive capacity, social value, and conditions of life are subordinated to external control and organized for extraction and accumulation.

² “Conservation under reform” uses conservation analogically rather than literally. The claim is not that social relations obey physical laws, but that systems of domination often preserve underlying structural relations by reorganizing the mechanisms through which extraction and control operate.