Citizens to Come: Building Beyond the 14th Amendment

Separation

On the 150th anniversary of the 14th Amendment we are called upon to celebrate a revolution, the affirmation in written law of values often claimed to be American: diversity; pluralism; the guatrantee of life, liberty, and property. But we do so in the shadow of ever-present and overbearing threats to those values: the president of the United States has enacted policies first separating immigrant children from their asylum-seeking parents as a deterrent to crossing the border, then enabling the Department of Homeland Security to detain those children and their families indefinitely.

Hearing the cries of children in detention facilities, it is hard not to draw the analogy to the auction block. For, as sociologist Orlando Patterson has taught us, one of the cornerstones of slavery across various societies was “natal alienation”—the breaking of familial ties that resulted in what he called “social death.”¹ The history of separating parents from their children in the United States is not one of mere political expediency, then, but of calculated terror. It is hard not to hear (but also to hear) the words of abolitionist poets like Frances Ellen Watkins Harper who, lacking audio recording technology, used poetry to give voice to those families the slave trade ripped apart. “Heard you that shriek?” she asked, in her poem “The Slave Mother,” “It rose / So wildly on the air, / It seem’d as if a burden’d heart / Was breaking in despair.”²

Part of the work of the Reconstruction Amendments, including the 14th, was to mend those families after emancipation, to reunite them under the banner of shared citizenship, or jus soli (“right of the soil”). How, then, do all of us who live on this soil in the time between the promise of citizenship and its fulfillment listen to the 21st-century “shriek” of separation? How do we sound the celebratory bells of this unrealized anniversary? It is worth looking back at an earlier anniversary of the 14th Amendment as we confront the rich and sometimes problematic legacy of natal citizenship in our present.

 

A Pageant for Citizenship

In 1917, living in New York as editor of the NAACP’s The Crisis magazine, W. E. B. Du Bois wrote letters to Charles S. Whitman, governor of New York, and E. A. Johnson, the recently elected first African American member of the state legislature, to propose a statewide celebration of the 14th Amendment on its 50th anniversary (in the year that also marked the 50th anniversary of his own birth).³ Du Bois recognized that a federal celebration was “unthinkable” under the current administration, but he saw the governor as sympathetic to African Americans. He hoped, therefore, that New York State might dedicate its name and some funding to the cause. The idea, Du Bois pointed out, was particularly timely in light of the recent contributions of black soldiers as the United States entered World War I, and the need to recognize their full citizenship as a result.

Du Bois had produced a similar pageant in honor of the anniversary of the 13th Amendment (granting emancipation). The Star of Ethiopia staged black history in epic proportions for black and white audiences, using black music, dance, and costumes to inspire a movement for freedom and uplift; the pageant was performed (and received with great acclaim) in New York, Philadelphia, and Washington, DC, from 1913 to 1916.⁴

current conditions require broadening the category of citizenship to include those who have been named “alien.”

Unfortunately, the citizenship pageant that Du Bois proposed to Johnson and Whitman a few years later as a celebration of the 14th Amendment never saw the light. While Johnson expressed general support for the idea of a “holiday” in honor of black citizenship, Whitman replied to Du Bois through an emissary, who explained that the governor could not support a pageant on behalf of negro citizenship, that the uses of budget appropriations were limited, and that Du Bois would need to appeal to the legislature to approve such a commitment.

More broadly, it would seem that the time was not yet right for celebrating the birthright amendment that 50 years earlier had granted black Americans citizenship on the basis of jus soli, the law of the very soil that Du Bois had described in Souls of Black Folk as at once saturated with the country’s violent history and fertile with its promise. Du Bois’s writings and correspondence during this period and for decades to follow indicate that the promise of citizenship guaranteed by the 14th Amendment was unstable from the start, poorly enforced at best and deliberately undermined at worst, and might be insufficient for the population of the United States.

Du Bois was a staunch advocate for the full realization of the amendment. In his 1906 “Address to the Country” at the second meeting of the Niagara Movement, his broad and lofty calls for full freedom and recognition were matched by the practical demand for congressional enforcement of the amendment’s second provision: “We want the Constitution of the country enforced. We want Congress to take charge of Congressional elections. We want the Fourteenth amendment carried out to the letter and every State disfranchised in Congress which attempts to disfranchise its rightful voters.”⁵

For Du Bois, the 13th, 14th, and 15th Amendments were of a piece: freedom required full citizenship, which depended, in turn, on the franchise. But in the early 20th century the connection between freedom and rights remained only partly realized in legislation and social and economic practice. Du Bois and his colleagues in the NAACP waged an ongoing campaign through the courts and the media to uphold the embattled Reconstruction Amendments, calling upon the nation to stabilize and strengthen that connection. In 1947, when Du Bois lectured for the National Lawyers’ Guild, he identified the 14th Amendment as part of a “revolution” uncoupling racial justifications from slavery and inequality and marked the ongoing struggle to maintain the ideals of true freedom against discrimination and antiblack violence.⁶

Efforts to uphold the amendment’s equal protection clause bore fruit in the 1954 Brown v. Board of Education Supreme Court decision; however, Du Bois died in 1963, without seeing the 1964 national Civil Rights Act come to pass. Today, 150 years after the passage of the 14th Amendment, as the US Supreme Court upholds the right of states to purge voters from its records, Du Bois’s call remains unanswered.

The pageantry of citizenship Du Bois imagined was never staged, and perhaps has never been staged, if we understand its vision to have been “the Constitution … enforced” and “the Fourteenth amendment carried out to the letter.” In the 20th and early 21st centuries, some of our most necessary national performances have instead marked the ways citizenship falls short of freedom for black Americans: Therese Patricia Okoumou climbing to sit beneath the foot of the Statue of Liberty on July 4, 2018; Colin Kaepernick taking a knee on the soil to claim his belonging on it in 2016; Barack Obama releasing his “long form” birth certificate in 2011; Rene Marie singing the lyrics of “Lift Every Voice and Sing” to the music of “The Star-Spangled Banner” at the Denver State of the City address in 2008; Lorraine Hansberry walking out of her meeting with then Attorney General Bobby Kennedy in 1963.

To today’s immigrant communities, the 14th Amendment is necessary but often insufficient.

In this spirit, Du Bois expatriated to Ghana in 1961 to live out his final years, disillusioned with the idea of citizenship as the bulwark of freedom. On the eve of his departure Du Bois dedicated a poem to Kwame Nkrumah, praising the pan-African movement. In “Ghana Calls” (1960) he describes his younger self as “at home with strangers,” his skin and hair as “alien.” Rendering himself foreign, Du Bois rendered insubstantial the dream of American soil underfoot; the soil Europeans had made into their “refuge” remained “a fetid swamp.”⁷

Such performances draw attention to the role of black Americans in defining and framing citizenship. They also highlight how the application of the constitutional amendment guaranteeing citizenship on the basis of birth has always been insufficient, in need of constant reinforcement and expansion. The instability of citizenship as a category—its status as a “fiction” in African American life, to cite historian Carter G. Woodson’s rather more cynical 1921 reflection on the 50th anniversary of the Reconstruction Amendments, an account of the courts’ failure to apply and uphold them—reminds us of the need to attend to other ways of imagining and making freedom.⁸ Robin D. G. Kelley in Freedom Dreams notes that tension between “black claims to full citizenship and full remuneration for our contribution to the nation,” on the one hand, and “dreams of black self-determination,” on the other, haunted black freedom movements before, during, and after Reconstruction.⁹

How is it possible to maintain, amplify, and repeat Du Bois’s frustrated insistence on the rights of citizenship while also pursuing dreams of a radical freedom that extends beyond the borders of the nation-state? If debates over who is American in the 21st century seem riddled with contradiction and conflict, they are not without precedent. Black radical thought has been and remains a significant arena for wrestling with this dilemma, and provides one foundation for thinking through the status of US citizenship in relationship to freedom at present. So too, a new generation of writers, activists, and artists with precarious status in the United States must now coin a language for navigating the paradoxes of American freedom.

 

Jus Soli

In August 2015, then presidential candidate Donald J. Trump proposed to “end birthright citizenship” for the children of immigrants he and other Republicans termed “anchor babies,” echoing the conservative argument that the 14th Amendment was not intended for use beyond the specific context of black emancipation, and therefore that its core ethical commitment to the protection of “life, liberty, [and] property” does not hold in cases of voluntary migration from other nation states.

Emerging from the particular history of the enslavement of African Americans, jus soli is an unusual basis for the granting of citizenship more broadly. The United States is one of very few countries in the so-called developed world to offer the “right of the soil” to children of undocumented immigrants born on its soil; others instead grant naturalization variously on the basis of heredity, proven family ties, and special skills. In this sense, one of our most progressive immigration laws owes its existence to the peculiar and violent history of the abduction, forced migration, and enslavement of Africans and their descendants, and to African Americans’ legal and political response to that history.

To today’s immigrant communities, the 14th Amendment is necessary but often insufficient. As historian Martha S. Jones has argued, these communities share many characteristics with African Americans who were newly emancipated after the Civil War: they have built multigenerational communities in this country and have been essential to US agriculture, industry, and the economy. Their claims to be part of the fabric of American society are profound and wide-ranging. But, says Jones, far from protecting the rights of undocumented immigrants and institutionalizing extant communities, the 14th Amendment as implemented in current immigration policy, “with no path to citizenship for unauthorized immigrants, … instead becomes a generational scythe.”¹⁰

is it possible to insist on the rights of citizenship while also pursuing dreams of a radical freedom that extends beyond the borders of the nation state?

A devastating irony of this turn of events is that a law whose effects included reunifying and legitimizing families previously separated by slavery now sometimes serves the opposite end in immigrant families. But the right of soil remains our singular heritage and a powerful antidote to the rhetoric of racial supremacy that has at times accompanied immigration policies based on heredity and skill (often one at the exclusion of the other). This right is no less powerful for its contradictions and conflict. The 14th Amendment was an affirmative and corrective response to the history of family separation and white supremacy that oppressed large swaths of the population and excluded them from civic belonging and human rights. The long history of alienating black people in America necessitated a law to grant citizenship to those people explicitly.

Today, similar conditions require broadening and expanding the category of citizenship to include those who have been named “alien,” a process that began but must not end with the 14th Amendment. Many immigrant justice groups remind us that citizenship itself remains insufficient as a basis for care and connection; they urge us to find other structures of belonging, community, and mutual protection under the heading of sanctuary.

 

The Pageant to Come

Contemporary writers, from the Oglala Lakota poet Layli Long Soldier to Kenyan-born Somali British poet Warsan Shire to the Jamaican-born US poet Claudia Rankine, continue to find language and form to express the precarity of soil as the sole basis of status or belonging. They use the poetic line to draw the instability of the political line: the border, the fence, the wall that divides soil from soil, birthright from right. In their works, citizenship is often the necessary but insufficient guarantor of rights Du Bois pursued.

In his affecting collection Unaccompanied, Javier Zamora describes his long journey from El Salvador to the United States at the age of nine in order to reunite with his parents, who had fled in the aftermath of the US-sponsored civil war in their home country. To document the experience of being undocumented, for Zamora, is to render “papers” suspect as the basis of human tenderness, shelter, and nourishment. In the poem “Citizenship,” the young speaker at the US–Mexico border wonders how people across the border—homeless US citizens—can be so hungry they would cross into Mexico for food. The poem concludes,

we didn’t know how they had ended up that way

on that side

 

we didn’t know how we had ended up here

we didn’t know but we understood why they walk

 

the opposite direction to buy food on this side

this side we all know is hunger¹¹

Coming late in the book, the poem stands out as the first in Unaccompanied without any punctuation (more such poems follow as the speaker comes closer to crossing into the United States, including the lengthy concluding poem in which he reunites with his parents, “June 10, 1999”). Line breaks rather than syntax divide space and time, suspending any certainty about the difference between “that side” and “this side.” Hunger becomes “this side we all know,” the common ground—the jus soli—of the boy and the people he watches.

For those who have lived all along on that unstable common ground, in the gap between the promise and the fulfillment of the 14th Amendment, this hunger defines the United States of America. The 150th anniversary pageant for the 14th Amendment must display not the abundance of freedom but the hunger for it, the hope and desire born on this side of the soil, or born on that side.

 

This article was commissioned by Ben Platt and Imani Radney.