Black Folks to Plantations! Mexicans go Home!: The 14th Amendment under Siege

It appears the 14th Amendment to the US Constitution is under siege. On the day I prepared to discuss the drafting and eventual passing of the 14th Amendment in my legal history course on the Reconstruction era at University at Buffalo Law School, George Will’s column appeared in the Buffalo News paper. He was discussing Congressman Lamar Smith, chair of the House Judiciary Committee, and his goal to end birthright citizenship conferred by the 14th Amendment. His target – those born to undocumented (Read –Mexican) immigrants. Of course, Will has been on this crusade for a while, while others challenge the validity of the 14th Amendment as a whole. Days later, the paper reported on congressional candidate Jack Davis’ comments, suggesting that Latino farm workers be deported and replaced by African Americans from urban areas who, he suggests, could be bused to farm-country to pick the crops. I suspect these guys are all on the same race/class/ citizenship page and project. That is, a project inevitably involving material arrangements of class, labor and economics.

Of course the 14th Amendment is one of the Reconstruction Amendments (along with the 13th and 15th Amendments to the Constitution) that grew out of the Civil War and the Emancipation of enslaved blacks. With the first shot of the War, the enslaved people began to walk off the plantations. They understood, what it appears whites both in the North and South did not, that the War was centrally about slavery and that it would end slavery. The Emancipation Proclamation thus only ratified what the enslaved themselves had already started. But the process of putting the pieces of the union back together and incorporating these newly freed people into a polity that had reduced them to chattel – the job of Reconstruction – had just barely begun.

Black Citizenship In the context of the era of its ratification, the 14th Amendment was meant to provide equal protection of the laws to those previously enslaved; but it was not limited to them. In providing citizenship to those born in the United States, it responded to and overruled the Dred Scot case, which held that the slaves were not citizens and noted that blacks had borne “no rights that a white man was bound to respect.” But its talk of naturalization suggests, again, that it was not limited to the newly freed people. This language, as George Will correctly admits, was derived from the Civil Rights Act of 1866. And here’s the connection… or the rub, as it were: The Civil Rights Act of 1866 not only granted citizenship to people who had worked American land for over two centuries, but was also meant to ensure and protect their right to work free from force, violence, and discrimination in response to the racialized system of forced labor – slavery – but also in response to the Black Codes that several Southern states had then newly enacted. These Codes sought to re-impose slavery in new forms; such as in, forced apprenticeship of black children to white farms without their parents’ consent and vagrancy laws that criminalized blacks who refused to do plantation work allowing whites to hire these ‘criminals’ out as slaves again. In other words, the 14th Amendment, according to Eric Foner, the leading scholar on the Reconstruction era, was intended to give meaning to the 13th Amendment’s abolishment of slavery. He notes:

To Radicals, equality before the law was an expansive doctrine embracing early   every phase of public life. Moderates had in mind a narrower definition, focusing on those rights essential for blacks to enter the world of contract, to compete on equal terms as free laborers. The bill proposed, one Congressman declared ‘to secure to a poor, weak class of laborers the right to make contracts for their labor, the power to enforce the payment of their wages, and the means of holding and enjoying the proceeds of their toil.’ If states could deny blacks these rights another Republican remarked, ‘then I demand to know of what practical value is the amendment abolishing slavery.’ (Reconstruction: America’s unfinished Revolution  1863-1877 at 244).

Reconstruction initiated, as Foner notes, the promising but failed experiment of “interracial democracy.”

Plantations, Citizenship, and Human Trafficking…   As my racially diverse class so discussed the 14th Amendment, they seemed a bit surprised that the birthright so many of them take for granted was assured in and emerged from the cauldron, quest and temporary legitimation of black freedom from forced labor and abuse in 1866. What, nevertheless, they immediately grasped was the close intersection and overlap of race, class and citizenship and the similarity between the project of those seeking to maintain slavery and their eventual triumph in Jim Crow segregation and slavery in other forms – the negation of blacks’ citizenship rights – and those who seek to stigmatize, demonize and deny citizenship to those who all too often labor both voluntarily and by virtue of force on the 2 million American farms that exist today. Though some business folk push for a workable system of immigration regulation, others enjoy the leverage they gain from the criminalization of immigration and those real and perceived as undocumented because they are similarly racialized. The current stigma associated with being undocumented together with the fact that many US labor and employment laws do not apply to the undocumented has given wide unchecked power to a range of industries, but none more acutely so than the farming industry.

 Samuel Vincent Jones in his paper discussing the neglect of men and boys in analyses of human trafficking (forthcoming in Utah Law Review), notes that the “United States’ demand for farm labor exceeds that of any other country and that it is the third largest destination country for trafficked humans in the world. This form of modern-day slavery is on the rise,” broadly, he says, and the need for labor in the US “provides a huge incentive for human trafficking.” Jones argues, “that although the traditional narrative about human trafficking focuses on the trafficking and sexual exploitation of girls and women, boys and men constitute a significant percentage of those trafficked.” Sex trafficking of young boys, also a problem “feeds the high demand for child pornography in the United States, of which more than half, features boys, many of whom are subjected to various forms of sadism or masochism, including bondage, rape or torture.” But it is the high demand for labor, and in particular, farm labor in the US that renders males even more vulnerable. Unsurprisingly, 75 to 90 per cent of current farm workers are male and 75 per cent of these workers were born in Mexico. More than half of these are undocumented. In fact, Jones suggests that the number of Latin Americans working on US farms today nearly mirrors the number of African slaves working on US farms in the 1850’s. And an unknown but significant portion of them are forced to work on these farms – not just forced due to economic pressure and the reality or appearance of being undocumented (a problem in and of itself) but literally forced. He explains that their “continued labor and obedience are often maintained through deception, confinement using armed guards, psychological and physical abuse, or threats to them or their spouses and children.”

One wonders what it is about American farms that require these sorts of measures; and what kind of people enforce and manage them. Keith Griffler, a professor of African American Studies at Buffalo is currently writing a book about the political economy of Africa around the time when African Americans were supposedly freed in the New World and colonization of the rest of the world began. Entitled,  Common Bonds of the African World: Race and Class in the Age of the Transnational State,” he casually comments that the work on these large farms and plantations was and is so hard and is so underpaid while requiring such skill that anyone who has a choice in the matter would not likely work on them. Enter congressional candidate Jack Davis: His response, deport Mexicans, put African American’s out on those farms and pay them (!), they will work, he says. If this work pays, I suggest, we pay the people working on them right now! In fact we should all be insisting that they be paid the good and decent wages that they are seeking and deserve.

Get to Stepping…   As for African Americans working on those farms, Davis might be right that this generation of unemployed African American and other workers might do this work if the price is right. But I, for one, am not going to those same farms on which my people labored for more than two centuries, without pay, and for which we received not one dime nor even a little piece of that same land to call our own at the end of it all; circumstances from which we have not yet recovered nor been allowed to recover – and a testament to the shallowness of white American moral, racial and economic justice. (Neck jerking, head swinging). It took a war for us to gain our citizenship, and then in name only, for another century. And it appears that neither this type of farming nor certain segments of white folks have changed much. Now George Will is willing to even go so far as to deny citizenship to the children born on American soil of those off of whose labor he likely eats! He quaintly explains that the phrase “and subject to the jurisdiction thereof” in the sentence granting citizenship in the 14th Amendment has never been interpreted by the Supreme Court and should be interpreted to deny these folks. Oh really? I believe the Supreme Court did exactly that in the case of United States v. Wong Kim Ark (1898), a case decided right in the middle of the period of Chinese Exclusion! That is, when Congress despicably excluded the Chinese from this stolen land, even the Supreme Court was unwilling to strip the children born in the dominion of the United States to Chinese immigrants of their birthright! Will’s move is a new, all-time low.  My sentiment: pay farm workers (well), naturalize them, if they so desire, and protect them – we obviously need them and there does not seem to be an immigration problem in need of solution. And by the way, if their parents are not subject to a grant of sovereign immunity, the kids born Here are US citizens (!) just like it is and has always been for the favored preferred class of ( white) people in this ‘country of immigrants.’ This is consistent with the justice concerns and struggles embodied in current interpretations of the 14th Amendment. As for Davis, given that he seems so concerned about farm labor, let him and his ilk get to steppin’ and go pick some crops. And they should take George Will along with them.


About admutua

Professor of Law, University at Buffalo Law School
This entry was posted in Constitutional Law, economic and social rights, Labor, markets and group identity, Uncategorized and tagged , , , , , , , . Bookmark the permalink.

One Response to Black Folks to Plantations! Mexicans go Home!: The 14th Amendment under Siege

  1. Martha McCluskey says:

    Thanks for connecting the dots so well. On the 14th Amendment history, I wonder if these anti-birthright advocates share or promote Michelle Bachmann’s view that the founding fathers ended slavery? See
    Also, contrast the movement to restrict citizenship rights of low-income (no-income?) workers with the right-wing movement to expand the political rights of wealthy non-citizens, namely the right of wealthy non-citizens to buy elections. From Truthout: Someone is now bankrolling a lawsuit to undermine the longstanding ban on political contributions by non-U.S. citizens:

    [A] suit challenging the foreign contribution ban is being brought on behalf of a Canadian who wants to support President Obama’s 2012 reelection campaign and a dual Israeli-Canadian citizen who wants to contribute to Obama’s opponent and also to Sen. Tom Coburn (R-Okla.), to help prevent a “government-takeover of the health-care system in the United States,” according to the suit. It says both plaintiffs are legally authorized to live and work in the United States, but are not permanent residents.

    The fact that this lawsuit has been filed is not itself significant — anyone can file a lawsuit making whatever legal claim they would like. What is significant, however, is the fact that the case is being litigated by two high-dollar attorneys from a firm whose clients include some of the biggest corporate beneficiaries of the Citizens United decision — including Koch Industries and the U.S. Chamber of Commerce.

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