Wajahat Ali
VIDEO:
July 1, 2026
#SupremeCourt
Is birthright citizenship the Supreme Court's next major constitutional battle? Waj is joined by legal analyst Elie Mystal to examine the legal arguments surrounding the 14th Amendment, recent Supreme Court decisions, and what future rulings could mean for citizenship, executive power, and constitutional law. In this episode, they discuss:
• The constitutional basis for birthright citizenship
• Recent Supreme Court rulings and legal trends
• Executive power and immigration
• The future of the 14th Amendment
• What these developments could mean for the United States
Watch now and join the conversation.
#SupremeCourt
Birthright Citizenship Lives to Die Another Day
The Supreme Court’s decision upholding birthright citizenship is a victory that may contain the seeds of a future defeat.
PHOTO: Supporters of birthright citizenship rally outside the US Supreme Court on April 1, 2026. (Mehmet Eser / Anadolu via Getty Images)
The battle over birthright citizenship is over. The war against birthright citizenship is just beginning.
That is the essential lesson of today’s Supreme Court ruling in Trump v. Barbara, the case involving Donald Trump’s Executive Order No. 14160, which denied citizenship to children born to temporary immigrants and children whose parents are in the country without authorization.
The ruling is a victory, to the extent that upholding a bedrock principle hard-coded into the Constitution for more than 150 years is what passes for a “win” these days. But the ruling was far closer than it should have been. There were a number of dissents, and when you read those dissents, the ruling looks less like the final word and more like the prologue to what will be a long and ugly attempt to write xenophobia and bigotry back into the Constitution.
The case hinged on two objections to Trump’s executive order: that it violated federal statute and that it violated the Citizenship Clause of the 14th Amendment.
On the statutory claim, Trump lost 6–3. Chief Justice John Roberts wrote for the majority, and his 30-page opinion (in a ruling that clocked in at 194 pages) was almost perfunctory. At the risk of oversimplifying it, Roberts said that birthright citizenship (as enshrined both in federal law and the Constitution) means what we’ve always thought it meant: that all children born here are citizens here. He was joined by justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, and Amy Coney Barret. He was also joined, in part, by alleged attempted rapist Brett Kavanaugh.
Kavanaugh only joined Roberts’s interpretation of federal law. On the more important constitutional question—whether the Citizenship Clause of the 14th Amendment demands that all persons born in the United States are citizens—Kavanaugh split off, making the vote 5–t4. In a concurrence, he said that the Citizenship Clause does not apply to children whose parents are living here in violation of US law. His view was echoed by dissents from justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.
The fact that the foundational principle of American citizenship, something said clearly and plainly in the Constitution, survived by only the slimmest of majorities over the strenuous objections of two-thirds of the Republican supermajority should not be cause for celebration. It is a cause for deep concern. Trump tried to change the definition of citizenship by executive fiat in clear opposition to the text of the 14th Amendment, and he almost got away with it. This time. And we know there will almost certainly be a next time; the Supreme Court loves to give Trump multiple bites at the apple whenever he is trying to graft bigotry onto the Constitution.
As has happened in the past, the dissents laid out the road map for how Trump or future bigots might get around the Citizenship Clause. Trump tried to take out both children of people with temporary status (like people on work visas) and children of people without proper status (like people who have overstayed travel visas or crossed the border in secret), and that appears to have been his mistake. The dissenters have different arguments for why the children of people who have temporary status should be denied rights than for why children whose parents are out of status (or never had status) should be denied those rights. It’s possible, even likely, that if Trump attacks these two groups separately, he’ll squeak his way to five votes on one or both fronts.
Clarence Thomas’s wild dissent is the one that most directly took on the issue of the children of people here temporarily. The thrust of his argument is that temporary visitors are not properly “domiciled” in the United States, and thus their children cannot be citizens. What does “domiciled” mean? Well, according to noted dictionary-enthusiast Thomas, it doesn’t mean what Merriam-Webster says it means. Instead, Thomas claims that people are “domiciled” where they’re from, not where they live. Thomas says that such immigrants still “owe allegiance” to their home countries. Indeed, no matter how long a noncitizen lives in the United States, Thomas says, they are always domiciled somewhere else.
Thomas’s interpretation makes no logical sense, and most people will be able to see how obtuse his argument is if they just consider their own lives. Most likely, you do not live in the same house you grew up in. Many of you don’t live in the same state you grew up in. And some of you might only be living where you are on a temporary basis—maybe, you know, you rent. Maybe you’re only there for a job and plan to leave the moment a better employment opportunity comes along. Maybe you’re like me and consider your entire miserable habitation “temporary” until the glorious day you have enough money and few enough children to move to Hawaii.
Are you not “domiciled” where you live? Of course you are domiciled where you live, work, and raise your family. And the same must be true of immigrants. A person from, say, Mexico, living in Arizona pursuant to a valid work visa must be domiciled in Arizona and can’t possibly be understood to be domiciled anywhere else.
Trump could not convince Roberts and Barrett to adopt Thomas’s stunted and logically unworkable view of domicile, but future administrations might. If future federal legislation defines domicile incredibly narrowly—you’re only domiciled in the US if you own property here, for instance—it could be used to restrict the scope of birthright citizenship, and Thomas’s dissent will have prepared the way.
As for the children of people who are undocumented, the dissenters had to come up with a different way to deny them rights. The “domiciled” issue doesn’t work here. That’s because there are many people who came to the US without proper authorization but have every intention to stay. These are not people who are “just visiting”; they are people who have built their whole lives here—and, more important, their children know no other country than this one. What to do with them?
Thomas and Alito, of course, argue that we should kick these children out. Their parents came here without documentation and, well, sucks to suck. But Kavanaugh’s concurrence provides the more likely roadmap to attack them—because he agrees with Thomas that such children should not have a constitutional right to citizenship. Kavanaugh, with access to the special Ouija board that allows Republicans to commune with people who have been dead for hundreds of years, claims that the authors of the 14th Amendment never intended for the children of undocumented people to be granted citizenship. He says that those authors “could not have fully anticipated” the current era’s “significant illegal immigration”—and that the influx of immigrants without proper authorization has so significantly changed the legal landscape since 1868 (when the 14th Amendment was ratified) and 1898 (when the Supreme Court last upheld the promise of birthright citizenship) that a new exception to the 14th Amendment must be recognized. That exception should exclude from citizenship the children of undocumented immigrants.
Kavanaugh’s contention that people of earlier generations did not understand the dangers of granting citizenship to the children of certain immigrants is easily one of the dumbest things written by a Supreme Court justice, and I just read Clarence Thomas’s dissent in this case. The 1870s was a period of massive immigration to the United States, mainly of northern European white people fleeing famine. The 1890s, when the last birthright case was decided, was smack-dab in the middle of the “great arrival,” the period when America was buffeted by a wave of immigrants from eastern and especially southern Europe (including, eventually, Sam Alito’s forebears). Indeed, the xenophobes of that time were so concerned about immigration that they passed various laws excluding certain people from the country (like the Chinese Exclusion Act of 1882). The generation of people who ratified birthright citizenship and upheld it at the Supreme Court were well aware of immigration, and many of them disliked it (at least as it pertained to non-white people). They had every opportunity to create a special exception to deny citizenship to the children of people who weren’t authorized to come here—and yet they didn’t.
Still, that misreading of history doesn’t stop Kavanaugh from offering a solution to an invented problem: Kavanaugh says that all Trump has to do is change the federal law granting birthright citizenship, and the 14th Amendment’s protection of birthright citizenship magically disappears. He writes: “An exception for those born in the United States to foreign parents unlawfully or temporarily in the country is consistent…with the Fourteenth Amendment.”
Roberts and Amy Coney Barrett (who did not write) rejected Kavanaugh’s view. But resting an entire conception of human rights on the narrow shoulders of one or two Republican justices is a mistake this country has made before.
From where I sit, birthright citizenship is now poised to replace abortion as the litmus test for future Republican judicial appointments, with Barbara replacing Roe as the case Republicans insist must be overturned.
For a generation, the drive to overturn Roe v. Wade was the calling card of every Republican Senate or presidential candidate who told their voters they must be elected so they could appoint and confirm Republican justices. But the Republicans have won on abortion. They are the dog that caught the car. In the years since Dobbs v. Jackson Women’s Health, Republicans have been kind of flailing around, searching for their next Supreme Court wedge issue. The most likely issue for them to pivot to was thought to be LGBTQ+ rights, but it doesn’t quite work for Republicans because they’re already winning. They already have all the justices they need to smash LGBTQ+ rights (and, indeed, in a different decision today, the Republican justices continued their crusade to erase trans people from legal existence).
Unlike on LGBTQ+ issues, the Republicans lost on birthright. But they can tell their people that they’re only “one vote away.” They can tell them they just need one more mouthbreathing xenophobic justice who will allow them functionally revoke the first part of the 14th Amendment.
Democrats, meanwhile, are likely to treat this bare win in Barbara just like they treated Roe: as a settled victory that requires no more legislation or defense. They are likely to throw Barbara back in the face of court reformers—as if a 5-4 ruling that the 14th Amendment means what it says is some kind of enduring victory—and media pundits are likely to use Barbara as an example of the court “standing up to Trump,” even though the dissents literally told Trump what to do next to accomplish his unconstitutional goals.
We can already see this playing out. Earlier today, Senate minority leader Chuck Schumer was claiming victory, declaring in a statement: “No matter how much President Trump tries to steal citizenship from people…the Supreme Court confirmed today that those born in America are American.” My brother, read the dissents please. They don’t say “no matter how much Trump tries,” they say “Trump should try again.”
Republicans will use Barbara as a rallying cry, Democrats will use it as an excuse to do nothing.
It took Republicans 49 years to overturn Roe. If Democrats refuse to treat court reform as the number-one priority, Barbara won’t last nearly as long. This is not the last time birthright citizenship will rest on a knife’s edge, and next time it might well fall under the axe.
As long as Republicans are allowed to control the Supreme Court, every human right enjoyed by any American is temporary. That is the moral of Trump v. Barbara.
ABOUT THE AUTHOR:
July 1, 2026
Letters from an American
June 30, 2026 Trump signed an executive order, on his first day in office, declaring that there was no birthright citizenship, The ACLU and others sued the administration, The Fourteenth Amendment established birthright citizenship, After the Civil War former Confederates denied Black Southerners basic rights, The Republican Congress passed a civil rights bill in 1866 but President Andrew Johnson vetoed it, When Congress wrote the 14th Amendment, it acknowledged that the Constitution had already established citizenship for all persons born or naturalized in the US, The 14th Amendment was challenged in the late 19th century, but the Supreme Court upheld it in 1898, After that, It seemed the law was settled, After Trump issued his executive order, judges all sided against him, and today the current court upheld birthright citizenship, But many have said that the Supreme Court should never have even taken the case, And four of the nine current Supreme Court justices appear to be willing to rewrite the Constitution, MAGA is pressing the administration to step up immigration enforcement in response.
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In Issue No. 11, Hammer & Hope turns a critical eye on the United States’ 250th birthday. Robin D. G. Kelley examines Black radicals’ relationship to the Declaration of Independence. Nancy MacLean shows how the Trump administration’s racist crusade is designed to tear down the last vestiges of the civil rights movement’s signal achievement: the Civil Rights Act of 1964. And Brian Jones explains that the teaching of Black history is “a record of struggles to achieve genuine equality and justice” — and so a fundamental threat not only to the current administration but to any authoritarian project.
These stories and others represent our mission to bring our readers the best thinking and writing from the left. If you believe in this work and want to help pay the writers, editors, and artists who make it possible, become a member today.
As the world receives its first trillionaire — a white man born in South Africa who amplified calls for a pogrom against immigrants in Belfast the same week as his company’s IPO — our current oligarchy feels much like a realization of the contradiction that defined America’s birth. We are besieged by a ruling class focused on maintaining white power.
And they are using every tool at their disposal to try to do so. They want the antidiscrimination measures of the past 60 years shredded. They want an end to Black voting rights. They want an end to abortion and women’s control of their own bodies. They want an end to immigration. They want war and bloodshed. They revel in racism. They are the culmination of 250 years of white supremacy and violence.
They represent one tradition in the United States. But there is another, found in 250 years of resistance, rebellion, and refusal. One that continues today — because it must. And why? Frederick Douglass made it plain: “There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.
“Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.”
In this issue Robin D. G. Kelley gives voice to Black women and men revolutionaries like David Walker, who asked white readers in his 1829 pamphlet, Appeal to the Colored Citizens of the World: “Do you understand your own language? Hear your language, proclaimed to the world, July 4th, 1776. … Compare your own language … extracted from your Declaration of Independence, with your cruelties and murders inflicted by your cruel and unmerciful fathers and yourselves on our fathers and on us — men who have never given your fathers or you the least provocation!!!!!!” He urged white people to read the text with greater care, especially the passage asserting that it is both the right and the duty of oppressed people “to throw off such government, and to provide new guards for their future security.”
For centuries communities have been organizing to safeguard themselves from authoritarian control and violence. That work continues today, even without the celebration it is due. The true inheritance of this 250-year experiment is the unwavering will of the people.
Our thanks to the people and organizations who made it possible for us to publish Issue No. 11:
Billy Brennan, Dana Castillo, Erin Crum, Vicky Fontenelle, Jaime Fuller, Kris Leja, Will Tavlin, Eamon Whalen, Allyson Winburn, Critical Minded, and the Economic Hardship Reporting Project.
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https://hammerandhope.org/article/robin-kelley-black-radicals-declaration-independence
No. 11
Summer 2026
“Do You Understand Your Own Language?”
Black radicals read the Declaration of Independence.
Robin D. G. Kelley
Billie Carter-Rankin for Hammer & Hope. Photographs via Library of Congress.
“We the darker ones come even now not altogether empty-handed: there are to-day no truer exponents of the pure human spirit of the Declaration of Independence than the American Negroes.”
–W. E. B. Du Bois, The Souls of Black Folk (1903)
Every so-called Independence Day I made my kids listen to passages from Frederick Douglass’s famous jeremiad “What to the Slave Is the Fourth of July?” Standing before a gathering organized by the Rochester Ladies’ Anti-Slavery Society on July 5, 1852, Douglass declared the nation’s celebration “a sham … [a] mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.” I wasn’t alone. I knew of Black families for whom the reading of Douglass’s address was as much a part of the Fourth of July festivities as barbecue and fireworks.
As we approach the U.S. semiquincentennial, Douglass’s speech is in constant rotation, one track in a cacophony of political noise extending from Trump’s 1776 Commission and his Freedom 250 initiative to Ken Burns’s long-awaited 12-hour documentary The American Revolution. Writers, judges, legal scholars, journalists, pundits, and celebrities hoping to cash in on the nation’s 250th birthday are making podcasts and pumping out books about the Declaration of Independence and 1776, adding to the thousands of volumes gathering dust in our libraries and filling the remainder bins of most corporate bookstores.
Revisiting “What to the Slave Is the Fourth of July?” underscores the need for a critical and informed response to the spectacle barreling toward us, whether it is coming from MAGA propagandists or patriotic liberals who still believe we are on the path toward a more perfect union. Black studies has long challenged right-wing and liberal mythmaking, even at the expense of criticizing our own heroic icons. For example, Douglass’s fury over the hypocrisy of the Declaration is accompanied by a vigorous defense of the U.S. Constitution as “a GLORIOUS LIBERTY DOCUMENT” thoroughly opposed to slavery. His insistence that slavery was unconstitutional and contrary to natural law misjudged the foundational role of enslavement, racism, and dispossession in the birth of the Republic — what the late philosopher Charles W. Mills called “the Racial Contract.”
The Declaration of Independence, however, is another matter. In 2014, Gerald Horne challenged established U.S. historians with the publication of The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America, which argues that the colonies declared independence in order to maintain and expand slavery as Britain was moving inexorably toward abolition. The colonists may have believed this when, in 1772, Lord Mansfield, chief justice of the Court of King’s Bench, ruled in favor of James Somerset, a fugitive who escaped his putative “master,” James Steuart, while on British soil. After he was recaptured, abolitionists appealed to the high court for his freedom. Mansfield’s ruling did not abolish slavery, nor was it his intention to do so. His decision centered on whether or not Steuart had the legal authority to forcibly seize him on English soil absent a “positive” parliamentary law legalizing slavery. Yet the Somerset ruling did not free all enslaved people in England. American slaveholders’ fear that Mansfield’s ruling would apply to the colonies turned out to be premature. The British crown’s ongoing investment in the slave economy was evident in its decision to occupy Saint-Domingue (Haiti) from 1793 to 1798, where it attempted to restore slavery after Revolutionary France had abolished it, not to mention the fact that slavery persisted in the British Empire until 1834 — facts Horne knows all too well. Still, I read Horne’s subtle interpretation of the American Revolution as less a counterrevolution than a struggle between factions of the same class over who would benefit from the spoils of slavery, slave-produced commerce, and Indigenous dispossession.
The Declaration’s significance extends far beyond the aims of the American Revolution or an expression of American nationalism. For Black thinkers, captive and fugitive, it was a referendum on the definition of the human, a rhetorical weapon against America’s conceits of liberty and democracy, and an exhortation on the right to rebel. Black people did not need a document to justify revolt, but it came in handy. It is most powerful when the people it was never meant to represent grab hold of its language and toss it back like an undetonated grenade, whether those hands belong to Denmark Vesey, Nat Turner, Maria Stewart, Dr. Martin Luther King Jr., or Ho Chi Minh of Vietnam. For these and other reasons, the Declaration should be read as a core text in Black studies.
My first encounter with a Black studies interrogation of the Declaration and the American Revolution was 45 years ago, when as an undergraduate I read Felix Nwabueze Okoye’s provocative essay “Chattel Slavery as the Nightmare of the American Revolutionaries.” The Nigerian-born Okoye, a noted Africanist and inaugural chair of the department of African and African American studies at SUNY Brockport, wanted to understand why the patriots persistently used the language of slavery to describe their condition. Writing in the wake of the U.S. Bicentennial, Okoye contended that white settler fear of being reduced to chattel slaves was the catalyst for the American Revolution. He takes to task every historian of the American Revolution for failing to see that the pamphlets, broadsides, and oratory did not refer to political or metaphorical slavery but dreaded the prospect of actual bondage. “What they feared,” Okoye wrote, “was ‘unmerited slavery,’ a slavery that was passed on to one’s descendants. What they detested was ‘ignominious slavery,’ a slavery that aroused feelings of shame in the breast of the oppressed. What they scorned was ‘abject slavery,’ a slavery that deprived its victims of all rights, a slavery whose elements were ‘cruel bondage and insults.’” In other words, servile status was reserved for Africans, not white men.
The propagandists of the new Republic generally camouflaged the effect of their proximity to the existing slave regime by invoking analogies to lord-vassal relations in England or relations between dominant and subordinate nations within Europe — anyplace but North America and the Caribbean. It was enough to persuade subsequent historians that chattel slavery had nothing to do with their fight. Their anxieties were not always contained, however. Okoye quoted Richard Wells of Philadelphia, who in 1775 explained his opposition to England’s 1766 Declaratory Act (also known as the American Colonies Act), which asserted the Crown and the British Parliament’s absolute authority over the colonies, by pointing out, “[W]hat security have we, that they will not one day portion amongst themselves, our fair inheritances, and force us into their new claimed fields, like Guinea slaves to till the soil?”
Ironically, this seemingly irrational fear of white Britons becoming slaves partly drove legal arguments in the Somerset case. One of James Somerset’s attorneys, Francis Hargrave, warned the court that a ruling in favor of James Steuart would mean slavery “may be lawfully imported into this country, at the discretion of every individual foreign and native. It will come not only from our own colonies, and those of other European nations; but … from every part of the world, where it still continues to torment and dishonour the human species. It will be transmitted to us in all its various forms, in all the gradations of inventive cruelty; and by an universal reception of slavery, this country, so famous for publick liberty, will become the chief seat of private tyranny.” Slavery haunts not only the colonists but the residents of the metropole, extending beyond the Africans recognized for their “slavish servitude” to others, perhaps even freeborn Englishmen. As the legal historian Michael Meranze perceptively observes, Hargraves is here considering “not only the liberty of Somerset, but also the liberty of all those around him — whether enslaved or not. Slavery in this telling will infect any constitutional order in which it is placed — infect it with tyranny that is.”
For Okoye, the “nightmare” of being reduced to chattel, i.e., Negroes, represented the settler unconscious. He anticipated the work of whiteness studies, especially David R. Roediger’s landmark 1991 work The Wages of Whiteness: Race and the Making of the American Working Class, one of the few texts of its time to cite Okoye. Yet Okoye was interested less in whiteness than in taking historians to task for failing to center slavery in studies of the American Revolution and asking why the revolution had not generated a more robust abolitionist impulse. While he was well aware of the few 18th-century white abolitionists, such as Samuel Hopkins, David Cooper, Anthony Benezet, and John Woolman, who excoriated racism and genuinely believed the Declaration’s assertion that “all men are created equal,” he concluded that merely recognizing African humanity and the inhumanity of slavery was not enough. “The true friend of the slave,” Okoye wrote, “would not only call upon his master to emancipate him but would also urge the man in chains to murder his oppressor and reclaim his freedom.”
David Walker, the militant Black abolitionist intellectual, made the same observation a century and a half earlier in his 1829 pamphlet, Appeal to the Colored Citizens of the World. Turning his attention to white readers, he asked: “Do you understand your own language? Hear your language, proclaimed to the world, July 4th, 1776. … Compare your own language … extracted from your Declaration of Independence, with your cruelties and murders inflicted by your cruel and unmerciful fathers and yourselves on our fathers and on us — men who have never given your fathers or you the least provocation!!!!!!” He urged white people to read the text with greater care, especially the passage asserting that it is both the right and duty of oppressed people “to throw off such government, and to provide new guards for their future security.” He then warned that those who think Black people “will never throw off your murderous government” ought to think again. Violent insurrection is inevitable, he predicted, and anyone familiar with the Declaration should already know that.
Thomas Jefferson, the Declaration’s principal author, as well as its signatories must have known this, at least at the level of the unconscious. The problem of slavery lay just beneath the surface of the Declaration, buried in such a way that its seams remained visible in the document’s final draft. Echoing the rhetoric of Common Sense by Thomas Paine, published seven months earlier, the Declaration charges King George III with fomenting insurrections by “merciless Indian Savages” and enslaved Africans — the latter by recruiting slaves to fight for the British in exchange for their freedom. He was referring to the proclamation issued in 1775 by Lord Dunmore, the royal governor of Virginia, offering freedom to African captives willing to fight for the British. Paine himself, though often touted as an abolitionist, had nothing to say about Black freedom in Common Sense. Instead he presented Africans as merely a threat to white liberty. An earlier draft of the Declaration repeated Paine’s charges, accusing the “Christian King” of foisting slavery onto the colonists, of “suppressing every legislative attempt to prohibit or restrain” the slave trade, and “exciting [the enslaved] to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded them: thus paying off former crimes committed against the Liberties of one people, with crimes which he urges them to commit against the lives of another.” To call this Jefferson’s “antislavery” passage is misleading. It rebukes the Crown’s absolute power and claims the moral high ground for the colonists without ever calling for the abolition of slavery. And why should it? About three-fourths of the 56 signatories owned slaves, including its author. Still, Jefferson’s vivid description of the slave trade as a “cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere” was too much for the South Carolina and Georgia delegates, as well as Northerners invested in the trade in humans and slave-produced commerce. Jefferson later reflected in his Autobiography, “Our northern brethren also I believe felt a little tender under those censures; for tho’ their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others.”
Jefferson’s deleted paragraph nonetheless exposed yet another dimension of the settler unconscious, the nightmare that would haunt the American Republic to this very day. They were not only afraid of becoming slaves, they were terrified of succumbing to Black revolt, of being slain by their property. Even the final draft of the document contains its share of Freudian projections. The Declaration’s description of oppressions under the British mirrors the rebels’ treatment of Africans and Indigenous people. Consider the line about King George waging war on the colonists: “He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.”
Roughly 20,000 enslaved Africans fought for the British in exchange for their liberty, but countless others regarded the Declaration of Independence as a general call for emancipation. Black people weren’t naïve — they knew the “men” whose rights for whom the text spoke did not include them. But that did not stop them from proclaiming their unalienable right to liberty. Slaveholders, rebel leaders, and local officials were deluged with petitions for manumission based on the language of the Declaration. In 1777, a free Black man named Prince Hall and seven others petitioned the Massachusetts government on behalf of “a great number of Blacks detained in a state of Slavery in the Bowels of a free & christian Country” for their release from bondage. The petitioners cited their “Natural and Unalienable Right to that freedom … Bestowed equally on all mankind, and which they have Never forfeited by any Compact or Agreement whatever.” They were not only claiming enslaved people’s natural right to freedom but also charging their Christian owners and the state with a crime. Africans, the petition argued, “were Unjustly Dragged, by the hand of cruel Power,” and stolen from a “populous, pleasant and plentiful Country and in Violation of Laws of Nature and of Nation and in defiance of all the tender feelings of humanity brought either to be sold like Beasts of Burthen & like them Condemned to Slavery for Life.” In contrast to Paine, who declared in Common Sense that “Africa is in a state of barbarism,” Hall and his fellow petitioners asserted their humanity, vindicated their native land, and asserted the moral superiority of their own freedom claims over settlers who hold their people in bondage. The petitioners expressed their “Astonishments that It has Never Been Considered that Every Principle from which America has Acted in the Course of their unhappy Difficulties with Great Britain, Pleads Stronger than a thousand arguments in favor of your Petitioners.”
Freedom suits came from Black women as well, disrupting both racial and gendered assumptions as to who is entitled to rights and liberty. “Men” in the Declaration is not a universal, gender-neutral category. Jefferson and his fellow signatories embraced parochialism; African women demanded universalism. Emblematic of Black women’s revolutionary universalism is Mum Bett (or Mumbet), a captive of Colonel John Ashley, a slaveholder in Sheffield, Mass. In 1780, she decided to sue for her freedom and that of all enslaved people in the state, insisting that she had an inherent right to freedom and Massachusetts never legalized slavery. Some accounts report that she walked five miles from Ashley’s place to the home of Theodore Sedgwick, a prominent lawyer and slaveholder himself, and asked him to take her case, after hearing the new state constitution read aloud. It is no small irony that both Ashley and Sedgwick helped draft the Sheffield Declaration of 1773, also known as “Sheffield Resolves,” widely understood to be a model for the Declaration of Independence. Its first resolution states: “Mankind in a state of nature are equal, free, and independent of each other, and have a right to the undisturbed enjoyment of their lives, their liberty and property.” Sedgwick and a lawyer named Tapping Reeve agreed to represent Bett and an enslaved man named Brom in 1781 and won. Upon obtaining her freedom, Mum Bett changed her name to Elizabeth Freeman.
These petitioners not only exposed the revolutionary ideals’ narrow parochialism; they pushed at the limits of the Enlightenment’s understanding of the human, defined, in the words of the scholar, novelist, and playwright Sylvia Wynter, as “European Man.” Wynter, along with Cedric Robinson, Edward Said, Aimé Césaire, and others, has long argued that the Negro, the Savage, and the Oriental were inventions. The modern world was built on such fabrications, and the exclusionary definition of the human designating racial groups as uncivilized and lacking the capacity for liberty not only justified enslavement but also obscured the violence of dispossession. Under settler colonialism’s herrenvolk democracy, freedom belonged to white men, liberty meant the right to own and dispose of property — including property in humans — and while the revolutionary cry for equality partly leveled class distinctions, it reinforced racial distinctions. Equality in this instance meant not being a slave.
Eighteenth-century Black thinkers understood their place in the nascent racial regime, but they refused to accept it. Instead they attributed their exclusion to cruelty, avarice, hypocrisy, and the white elite’s limited capacity for reason. In a letter published in the Connecticut Gazette on March 11, 1774, the poet Phillis Wheatley told the Rev. Samson Occom, a member of the Mohegan Nation, that all people are not only born free but are born with a “Love of Freedom.” She found slaveholders fighting for freedom to be a “strange Absurdity”: “How well the Cry for Liberty, and the reverse Disposition for the exercise of oppressive Power over others agree, I humbly think it does not require the Penetration of a Philosopher to determine.” And yet it has taken a virtual army of philosophers to evade.
These manumission petitions and Black antislavery jeremiads not only refuse such philosophical evasions but also represent a radical critique of “natural rights” discourse in this period that ought to be read alongside Hugo Grotius, Thomas Hobbes, and John Locke. Arguably the sharpest and most sustained critique came from Quobna Ottobah Cugoano’s 1787 text Thoughts and Sentiments on the Evil of Slavery. Born in West Africa around 1757, Cugoano was kidnapped in 1770 and transported to Grenada. He was eventually purchased by a British plantation owner who took him to England in 1772 — the same year as the Mansfield decision — where he was freed in unknown circumstances. His book argued that slavery is contrary not only to natural and divine law but also to civil society, since the kidnapping and selling of human beings is an act of theft — the theft of liberty. But he didn’t stop there. According to the Black studies scholar Anthony Bogues, Cugoano made a persuasive case that slavery, as well as colonialism, also violates reason. Refuting claims that Africans were inferior to Europeans and naturally servile, he argued that Africans were “born as free, and are brought up with as great a predilection for their own country, freedom and liberty, as the sons and daughters of fair Britain.” He saw no separation among natural liberty, civil liberty, and political liberty, making slavery in any form incompatible with civilized society. In short, contrary to the Enlightenment thinkers of his day, Cugoano concluded that natural right meant, as Bogues explains, “the right of the individual to be free and equal, not in relationship to government but in relationship to other human beings.”
Thirty-two years after the publication of Thoughts and Sentiments on the Evil of Slavery, the Rev. Jacob Gruber, a Methodist minister, stood trial for inciting the enslaved to mutiny with his sermon at a camp meeting in Maryland. More than 3,000 congregants, including about 400 Black people, most of them enslaved, gathered to listen to Gruber preach from Proverbs 14:34, “Righteousness exalteth a nation, but sin is a reproach to any people.” According to one witness, the minister denounced slavery as a “national sin” and called attention to “a great inconsistency in holding the Declaration of Independence in one hand and a bloody whip in the other, and the blood streaming from a negro’s back, literally cut to pieces.” At Gruber’s trial, one of his attorneys delivered a brilliant opening statement on freedom of speech and the Methodists’ obligation to oppose slavery. He also turned to the Declaration of Independence to criticize human bondage, which he argued had been imposed on the American people by the British “while we were yet in a state of colonial vassalage.” Slavery, the lawyer told the court, was “a blot on our national character, and every real lover of freedom, confidently hopes that it will be effectually, though it must be gradually, wiped away. … And until it shall be accomplished: until the time shall come when we can point without a blush, to the language held in the Declaration of Independence, every friend of humanity will seek to lighten the galling chain of slavery, and better, to the utmost of his power, the wretched condition of the slave.” Gruber was acquitted of all charges.
The lawyer’s name was Roger B. Taney. He went on to become chief justice of the Supreme Court and the author of the majority opinion in Dred Scott v. Sandford (1857). By then, he no longer envisioned slavery’s inevitable demise. On the contrary, his ruling legalized slavery everywhere and declared Black people had never been citizens of the U.S. and possessed no rights whatsoever. As evidence, he cited, among other things, the Declaration of Independence. According to Taney, “the men who framed this declaration were great men — high in literary acquirements, high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them.”
David Walker disagreed. He exhorted Americans to “understand your own language,” to recognize how its radical call for equal rights and rebellion could blow up in their faces. Taney, by contrast, conspired with the original signatories to occlude the Declaration’s faint antislavery echoes.
It didn’t work. Two years later, the abolitionist John Brown rewrote the Declaration to create an unambiguous abolitionist document. Dated July 4, 1859, “A Declaration of Liberty by the Representatives of the Slave Population of the United States of America” replicates the original Declaration’s opening lines before turning to America’s crimes:
The history of Slavery in the United States, is a history of injustice & Cruelties inflicted upon the Slave in every conceivable way, & in barbarity not surpassed by the most Savage Tribes. It is the embodiment of all that is Evil, and ruinous to a Nation; and subversive of all Good. …
[The government has] refused to grant Petitions presented by numerous & respectable Citizens, asking redress of grievances imposed upon us, demanding our Liberty & natural rights. With Contempt they Spurn our humble petitions; and have failed to pass Laws for our relief. … They have abdicated government among us, by declaring us out of their protection, and waging a worse than cruel war upon us continually.
“A Declaration of Liberty” and Brown’s “Provisional Constitution and Ordinance for the People of the United States” were direct refutations of Taney’s opinion, which had proved to Brown that the federal government sanctioned and sustained the institution of slavery. Slavery was a national crime, and the federal government was slavery’s prime source of authority and protection — hence Brown’s decision to attack the federal armory and arsenal at Harpers Ferry, Va. He and his small army of 16 white men and five Black men — Osborne Perry Anderson, John Anthony Copeland Jr., Shields Green, Dangerfield Newby, and Lewis Sheridan Leary — took on the federal government and the Southern planter class in what seemed like a foolhardy attempt to free four million Black people held in bondage. They were defeated, with 10 killed in the attack and Brown and six of his men captured and executed, but within two years the nation was at war over the fate of slavery. Walker’s prediction was fulfilled.
The end of chattel slavery did not diminish the significance of the Declaration for Black movements and letters. Its principles of consent of the governed and the right of the people to alter or abolish “destructive” governments took on even greater importance as African Americans fought disenfranchisement, segregation, and state violence. When Huey P. Newton and Bobby Seale drafted the Black Panther Party’s Ten Point Program in 1966, they chose to end point 10, demanding “land, bread, housing, education, clothing, justice, and peace” and recognizing Black people in the United States as colonial subjects, with the first two paragraphs of the Declaration of Independence verbatim.
Tellingly, as the uses of the Declaration shifted more toward democracy and the right to revolt with the advance of the 20th century, Black leaders seemed to embrace the document’s original gender conventions. Men, in other words, meant men. The same year the Black Panthers were formed, a group of Black clergy influenced by Black Power and Black liberation theology, launched the National Committee of Negro Churchmen (later the National Committee of Black Churchmen, or NCBC). Four years later, in July 1970, the NCBC issued its “Black Declaration of Independence,” which appeared as a full-page ad in The New York Times. The document echoes the language of the original Declaration but quickly pivots to addressing the unique history and status of African Americans. It affirms the equality of “men” but adds that “when this equality and these rights are deliberately and consistently refused, withheld or abnegated,” the people are duty-bound to rise up in rebellion: “it is the Right of the Minorities to use every necessary and accessible means to protest and to disrupt the machinery of Oppression.” Its list of abuses includes racism, economic exploitation, inadequate education, housing, denial of political representation, unremitting police violence, the militarized occupation of black communities “without the consent of our People,” and being subject to compulsory military draft “to bear arms against their black, brown and yellow Brothers, to be the Executioners of these Friends and Brethren, or to fall themselves by their Hands.”
So whose Fourth of July is it, really? If the long movement for Black freedom claimed the Declaration and its various revisions as weapons, inspirations, a North Star, a nightmare, then the Fourth of July is ours, too. But not to commemorate a nation’s birthday, and certainly not to celebrate the “birth of freedom.”
ABOUT THE AUTHOR:
Robin D. G. Kelley is a professor of American history at UCLA and the author of Hammer and Hoe: Alabama Communists During the Great Depression, Freedom Dreams: The Black Radical Imagination, and other books.
Hammer & Hope is free to read. Sign up for our mailing list, follow us on Instagram, and click here to download this article.
https://hammerandhope.org/article/civil-rights-movement-economic-justiceNo. 11
Summer 2026
The Forgotten History of the Civil Rights Movement’s Fight for Economic Justice
By turning DEI into a slur, Trump and MAGA want to erase the radical promise of the movement that won civil rights.
by Nancy MacLean
Hammer & Hope
Number 11
Summer 2026
When Joe Biden signed a bill making Juneteenth a federal holiday in 2021, the decision stirred mixed emotions among Black Americans. On the one hand, the nation was finally acknowledging the end of slavery as a crucial moment of revolutionary rebirth in U.S. history. On the other hand, a cherished ritual in many Black communities was suddenly everybody’s business — and plenty of racist coworkers and neighbors who would never get invited to the cookout now got a day off. At that very moment, however, the right-wing assault that would go into overdrive during Donald Trump’s second presidency was threatening all of Black history in Republican-controlled legislatures around the country. “In the boundless satire that is the United States of America,” Jesse Hagopian wrote in Teach Truth: The Struggle for Antiracist Education, “Juneteenth — the oldest commemoration of the ending of slavery — became a federal holiday at the same time legislators were making it [illegal] to teach about the origins of the commemoration in many states, including in Texas, where the holiday originates.”
For much of the United States’s 250 years, Black history and the broader field of Black studies of which it is a cornerstone have endured and thrived outside of mainstream attention, studied more often in unofficial, grassroots spaces. But Black scholars and activists have long labored to change that, to secure official space, with impressive results. As a field of research, study, and teaching, Black history has captured more institutional resources than ever before in U.S. history.
Yet our progress is now under systematic, nationwide assault. Why? The truth is that telling Black history is dangerous — and therefore the battle to tell it will always be important. Right-wing extremists cannot tolerate even the most mild, patriotic expressions of Black history because their project is about restoring the pre-civil-rights-era status quo in which white supremacy ruled. Any facts to the contrary need to be erased. But liberals, too, fear Black history when it opens the door to a deeper critique of U.S. society. To acknowledge the validity of Black historical perspectives is to accept the possibility that the U.S. might not be the greatest nation ever, that its white male founders didn’t honor the principle that all men are created equal, and that creating a better future for all of humanity will require taking a hard look at inequality and injustice in the past and present.
The bans and restrictions on teaching that affect nearly half of K–12 students today are nothing new for the United States. They have a long lineage, going back all the way to the colonial period, when legislators reacted to uprisings of enslaved peoples in nearly identical ways. The first time that a colony passed a law to criminalize literacy, for example, was 1740, following the Stono Rebellion in South Carolina. The uprising had been led by an enslaved Central African person known as Jemmy or Cato, who came from Angola or Congo, where he likely learned to read Portuguese. Over the next 100 years, all the Southern states followed suit. Teaching Black people to read or write was punishable by fines, whippings, and imprisonment. It’s not hard to draw a line from these anti-literacy laws to the anti–Black history laws spreading nationwide today.
Thus, for most of U.S. history, teaching Black history happened in the shadows. By the early 20th century, chiefly through the efforts of Black scholars and activists, it began to come into the light, slowly leading to greater institutional resources and visibility. But progress did not come evenly, nor without negative consequences at each step forward.
The dual centennial celebrations this year of the Schomburg Center for Research in Black Culture and of Black History Month illustrate this arc toward capturing greater institutional resources. Unlike most major New York City cultural organizations, the Schomburg Center is not named for someone fantastically wealthy, but rather for an Afro-Puerto Rican activist, scholar, and bibliophile whose career began, by necessity, outside of formal academic institutions. Arturo Alfonso Schomburg and most of his collaborators lacked scholarly degrees, titles, and positions, but they nevertheless nurtured a vibrant intellectual culture, centered around Afro-diasporic history and culture. Schomburg was a prodigious collector of rare books, manuscripts, images, artworks, and other “vindicating evidences” of Black people’s contributions to global culture. He was able to collect so voluminously on his modest wages (his day job was in the mailroom of a bank) because such materials were not valued in society at large. Scholars of Black history would travel from far and wide to Schomburg’s humble Brooklyn rowhouse, where he served as reference librarian, helping researchers navigate the stacks of thousands of items piled in rooms and hallways. He was the collector and the catalog — only he knew what was where.
All of this is heroic and commendable, but Schomburg eventually recognized the limits of his endeavor. In 1926, the New York Public Library, with assistance from the Carnegie Corporation, purchased Schomburg’s collection for $10,000. The purchase set the library’s 135th Street branch on the path to becoming the world-renowned research library that it is today. In a very practical sense, because the Schomburg Center can control temperature and humidity in a way that Arturo Schomburg could not, the institution made it possible for all of us, 100 years later, to continue to read and use his collection. Schomburg the activist scholar purposely brought his work “indoors,” so to speak, and in doing so dramatically increased its impact.
Likewise, Carter G. Woodson, who initiated Negro History Week 100 years ago in February 1926 (aligned with the birthdays of Abraham Lincoln and Frederick Douglass), aimed to promote its institutional adoption as widely as possible. The title of Jarvis R. Givens’s book about Woodson, Fugitive Pedagogy, is a helpful reminder, though, that much of that work was first nurtured in unofficial ways and spaces. Woodson communicated with networks of Black teachers nationwide, regularly mailing them materials to support the teaching of Black history, including timelines, essays, and posters to hang up in their classrooms. Even in segregated, Black-run schools, lessons on the Haitian Revolution or Reconstruction had to be taught with the door closed in many places, out of sight and earshot of white authorities. Black history was truly contraband, as the appropriate title of a recent collection of Black studies scholarship puts it.
Over the decades, Negro History Week spread; in some places, Black educators expanded it to include activities for the whole month of February. Woodson might have been astonished to see a president of the United States, Gerald Ford, officially recognize Black History Month in 1976, giving Woodson’s grassroots initiative the highest possible form of institutional validation. Honoring Black history became an annual national ritual — but not without costs. No longer the lone province of expert, fugitive educators steeped in the traditions, quantity sometimes replaced quality.
After the Supreme Court declared segregated schooling unconstitutional in Brown v. Board of Education, white officials decided that tens of thousands of Black teachers and principals were now superfluous — some 38,000 Black educators were fired in just 10 years. So when the importance of Black history was officially recognized by the federal government, the very people (particularly Black women) most qualified to teach it had long been dislodged from their profession. In recent nationwide surveys, educators in the overwhelmingly white teaching force have admitted that they are ill-equipped to teach Black history topics such as Reconstruction. Authors, educators, and publishers are working mightily to try to fill the gaps, creating the kinds of resources that Woodson’s grassroots networks once regularly relied on producing themselves.
In higher education, the pioneering scholar-activists who laid the foundation of Black history were, for most of the 20th century, mostly shut out. Woodson and W. E. B. Du Bois earned PhDs and could teach in historically black colleges and universities (HBCUs), but they were often barred from publishing in mainstream academic journals, denied access to fellowships and other professional opportunities, and even, in some cases, prevented from accessing archives. By necessity, they worked in the margins, building their own institutions, sustained by the communities that cared the most about their work. This foundational work was often led by Black women. Two recent biographies — Noliwe Rooks’s of Mary McLeod Bethune and Ashley D. Farmer’s of Audley “Queen Mother” Moore — show the wide political range of Black educator-activist institution building. Hubert Harrison, an early 20th-century working-class intellectual and socialist based in Harlem who is the subject of a new biography by Brian Kwoba, likewise had little opportunity to bring his work “indoors” to mainstream academic institutions. He mostly taught outdoors — literally — on the streets of Harlem, regularly drawing crowds of hundreds of listeners.
The mid-20th-century expansion of higher education and the successes of the civil rights movement changed this dynamic. A new generation of scholars — including many non-Black ones — looked back to the work of figures like Du Bois with interest. Who got to be a scholar changed, too. Military spending fueled the growth of postsecondary opportunities, and hundreds of thousands of working-class youth jumped at the chance to be students. A significant number also became political activists, on campus and off. Black students played a leading role in this activism, whether in HBCUs or in the predominantly white institutions that they were entering for the first time. Their demands for Black studies in the post–civil rights period changed higher education and opened the door to rethinking curricula across the board, ultimately paving the way for ethnic studies, women’s studies, and, later, queer studies.
Once again, Black history came quite a bit more “indoors,” capturing greater institutional resources and status. After years of shutting out Black studies, especially in predominantly white institutions, universities switched gears and embraced it, though cautiously. Postsecondary education was transformed from a rarefied elite institution to one more people could access. As the U.S. abandoned Southern-style segregation — while carefully preserving its Northern relative — its universities were central to developing ideas about how U.S. society could “manage difference” in the postcolonial, post–Jim Crow world. As historian Roderick Ferguson wrote, for a time, Black studies and other similar disciplines actually became a new source of legitimization for higher education. This created an opening for insurgent student movements to capture institutional resources, further expand curricula and literary canons, and make space for those who had previously been marginalized.
But as Imani Perry reminds us, victory and defeat can coexist and often do. Black studies blossomed as a field in the decades surrounding the turn of the 21st century, producing award-winning, groundbreaking scholarship. But higher education overall has been undermined during the era of neoliberalism, struggling under the weight of the accelerating casualization of academic labor, devaluation of humanistic knowledge production in general, declining public investment, and rising costs borne disproportionately by working people. This toxic combination has diminished opportunities for Black people — and everyone else — to participate in academia. What little space and resources there were for Black studies are now shrinking, not expanding.
There is a political dynamic at work as well. The speed with which universities and other institutions abandoned “diversity” and any commitment to antiracist education in the face of Trump administration attacks shows just how shallow those commitments were in the first place. Even before Trump’s second term, there was a spreading consensus among the highest ranks of higher ed, as in corporate boardrooms and the political class, that it was time for a course correction: The George Floyd uprisings of 2020 and the pro-Palestine student encampments of 2024 had gone “too far” and needed to be rooted out. Diversity, equity, and inclusion initiatives were already pared back at postsecondary institutions, along with freedom of speech, intellectual freedom, and faculty governance. The Trump administration’s threats have been a useful cover for an agenda already being implemented.
The bans on teaching directed at K–12 classrooms represent a similar “correction” in primary and secondary education as well. The texts of the bills rammed through state legislatures target “critical race theory” and other academic concepts with language so broad that teachers don’t really know where the line is and which book, activity, or classroom discussion could constitute a violation.
There are many good reasons slaveholders, white supremacists, Confederates, Christian nationalists, and other authoritarians have feared Black history through to the present day. Reactionaries of all stripes share a commitment to hierarchy as an ideal, especially racial hierarchy. They don’t believe that all people are created equal or deserve legal and political equality. That’s why they cannot tolerate liberal multiculturalism or mild celebrations of Black history, even when stripped of its radical content. To the right-wing extremists, teaching Black history is itself “racist,” with educators supposedly reversing the racial hierarchy to put Black people on a pedestal and denigrate white people. But as anyone who has stood in front of a blackboard knows, teaching Black history is nothing of the sort. It is, at its core, a record of struggles to achieve genuine equality and justice.
There can be no denying the scope and the dangers of this assault on Black history. But one unintended consequence may be a strengthening of the grassroots, fugitive channels of education that made it possible to bring our history “indoors” in the first place. On a Zoom call earlier this year organized by the Zinn Education Project and led by Jesse Hagopian, more than 100 K–12 teachers discussed how to teach the Black freedom struggle. I heard from educators nationwide — including some teaching in states where such conversations are now banned — and came away impressed by the resilience of people taking risks to teach the truth. I had the feeling that I was witnessing a meeting of the kind of unofficial network that Carter G. Woodson pioneered.
We shouldn’t romanticize what it means to lose academic jobs, funding, departmental status, and more. These devastating losses ruin people’s lives and are real setbacks; their impacts will be felt for a long time. But they won’t actually stop people from reading, writing, and teaching Black history, one way or another. On the contrary, they can increase interest in the histories that right-wingers want to make “contraband.” A persistent, committed minority will use every resource at its disposal, and create new ones, to keep telling Black history. In doing so, they will lay the foundation for future generations to go further, just as the enemies of Black history fear — to see more and do more to understand the past in order to transform the present and the future.
https://hammerandhope.org/article/supreme-court-black-voters
No. 11
Summer 2026
The Supreme Court Blesses the Destruction of Black Electoral Power
The court’s conservative supermajority has gutted what remained of the Voting Rights Act of 1965.
With its decision in Louisiana v. Callais, the U.S. Supreme Court’s right-wing supermajority dealt a fatal blow to the Voting Rights Act of 1965, clearing the way for a reversal of Black electoral power the likes of which we have not experienced in our lifetimes and from which we are not likely to recover anytime soon. Widely recognized as the crowning achievement of the civil rights movement, the law was designed to enforce the U.S. Constitution’s guarantee under the 15th Amendment that no government can deny or abridge the right to vote on the basis of “race, color, or previous condition of servitude.” Generations of Black people struggled and sacrificed — some with their lives — in the face of Jim Crow terror to finally achieve protections for voting rights that were already guaranteed under the Constitution.
Since its enactment, the law has been used to challenge and often eliminate restrictions on voting used by states across the South during the Jim Crow era to lock in a white supremacist hierarchy based on racial caste. It achieved nothing short of a political transformation. Just one year after the Voting Rights Act was passed, the percentage of Black registered voters had risen from 11 percent a decade earlier to 51 percent in Alabama and from 27 percent to 72 percent in Tennessee over the same time period. There were six Black members of the House of Representatives and no Black senators when the law was enacted. That grew to 21 as of the start of Congress’s new term in 1985 and 63 by 2025, along with five Black U.S. senators. The expansion of Black representation in local political offices was even more dramatic. The Supreme Court decision in Callais not only forecloses future progress; it threatens to impose the conditions of a pre–civil rights past.
I learned a long time ago that one of the best ways to understand what the Supreme Court has decided in a case is to read the dissent. The dissent in Callais, written by Justice Elena Kagan and joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, plainly explains how the Supreme Court eviscerated what remained of the Voting Rights Act, leaving one of its central provisions — Section 2, known as the “sword” of the law because of its enforcement powers — “all but a dead letter.”
To illustrate the effects of the decision, Kagan suggests that we imagine a hypothetical circle-shaped, single-county district in a rectangle-shaped state. The circle’s population, thanks to historical patterns of racial segregation, is 90 percent Black. The surrounding rectangle is 90 percent white. Voting is racially polarized, with Black residents voting overwhelmingly for Democratic candidates and white ones voting for Republicans. Those who reside in the circle elect representatives that no one in the remaining rectangle would put in office. Under these conditions, the circle’s Black community is able to elect a representative of its choice year after year. Kagan then asks us to imagine that the state legislature decides to eliminate the political power of the circle. It splits the circle into six equal slices and distributes the Black voters to six new, solidly white congressional districts. With the state’s Black voters dispersed into predominantly white districts, they cannot elect a representative of their choice. “Election after election, Black citizens’ votes are, by every practical measure, wasted,” Kagan wrote.
As the dissent points out, “That is racial vote dilution in its most classic form. A minority community that is cohesive in its geography and politics alike, and faces continued adversity from racial division, is split — ‘cracked’ is the usual term — so that it loses all its electoral influence.” Black people can still cast a vote, but will never be able to elect a candidate that represents their political beliefs in the same way that the white population can. As Kagan explains, “Their votes matter less than others’ do; they translate into less political voice.” The votes of individual Black people are worth less than — and are therefore unequal to — the votes of whites. That is a violation of the 15th Amendment — exactly the sort of constitutional violation that the Voting Rights Act was meant to remedy.
Indeed, in drafting Section 2 of the law, Congress focused explicitly on whether electoral practices “would result in minority citizens having less opportunity than non-minority citizens to choose their political representatives,” Kagan wrote in her dissent. Under Jim Crow, Southern states had put in place seemingly race-neutral barriers to political participation — literacy tests, poll taxes, confusing registration processes that were selectively enforced — that had the effect of systematically disenfranchising Black voters. Section 2 was designed to correct that even in the absence of evidence of intentional, purposeful discrimination to subvert the Black vote. Results were what mattered.
Kagan’s hypothetical example is a fair description of the issues in Callais. In 2022, in response to the most recent census, the Louisiana legislature redrew the state’s congressional district map, allotting only one of the state’s six congressional districts as a majority Black district. Because Black voters make up one-third, not one-sixth, of Louisiana’s population, voters and civil rights advocates sued, alleging that the map violated Section 2 of the Voting Rights Act. A federal district court thought that the plaintiffs were likely to win if the case made its way through the court system, and an appeals court agreed; Louisiana was ordered to draw a new map, or at least consider doing so, before the case continued its legal journey in 2024. The state legislature’s new map created a second district in which Black voters were the majority.
This map was then challenged by a group of plaintiffs describing themselves as “non-African-American voters,” who claimed that the 14th Amendment’s equal protection clause had been violated because voters were allocated to districts based on race. A federal district court panel ruled that the second “majority-minority” district was illegally gerrymandered. The Supreme Court paused the effect of that decision until after the 2024 election and agreed to hear an appeal from voting rights advocates, who argued that a new map drawn on the basis of the lower court decision would “crack” the second majority-minority district, scattering Black voters to majority-white districts and diluting their political power. As Kagan argued in the Callais dissent, they would still be able to vote, but because they could not elect their candidate of choice, their votes would count for less, which is a constitutional violation.
The case for overturning the lower court ruling and keeping a second Black-majority district relied on Congress’s clearly stated intentions. In 1982, when the Voting Rights Act was amended, Congress was explicit that the test of alleged violations was the effect of election laws and processes, not the intent of officials overseeing them. If the effect of a congressional district map was to diminish Black political power, that was a constitutional violation. The rationale for this was widely understood and accepted at the time, even by many Republicans: Legislators and public officials don’t typically make openly racist pronouncements to justify changes to voting that diminish and eliminate Black political power. On the contrary, these changes usually come with race-neutral justifications. Section 2 of the Voting Rights Act was designed to judge the racist effects of electoral practices on Black voters.
In Callais, the Supreme Court majority turned a half century of legislative and legal precedent upside down. The six justices in the majority looked away from history and inserted their own judgment, exchanging the law as written and rewritten by Congress for the law as they wanted it. In the place of an effects test to determine violations of the law, they imposed an intent test. It no longer matters how a change to the state’s maps affects Black voters. Now the only actionable proof of a constitutional violation is to show that the change was motivated by an identifiable individual or individuals driven by racist animus. This will make it all but impossible to prove Voting Rights Act claims going forward.
To make matters worse, the court’s conservative majority has ruled over the past decade that gerrymandering for partisan advantage is perfectly acceptable. Voting rights plaintiffs alleging discrimination must now not only prove that a redistricting plan was motivated by open racism; they also must exclude the possibility that the plan grew out of acceptable nonracial motives, including partisan advantage. Returning to Justice Kagan’s hypothetical circle-within-a-rectangle example, it simply isn’t possible to satisfy both the needs of Black voters for a consolidated majority-Black district and the political motivations for carving up the district. Preserving Republican power in states that the party controls — now a perfectly legitimate justification for extreme gerrymandering — requires diminishing Democratic political power in those states. If Black voters overwhelmingly vote Democratic, they will consistently be on the outs, and anyone raising a voting rights discrimination claim arising from those circumstances is destined to lose.
Much as it has done before, the Supreme Court changed the rules of the game that prevailed for half a century to allow Republicans to lock in a white-majoritarian partisan advantage in states that they control while blunting the tools created to challenge it. As Kagan concluded, “The Court’s decision will set back the foundational right Congress granted of racial equality in electoral opportunity.”
Callais has had an immediate impact. Within days, Republican-controlled legislatures in the South moved to eliminate Black-majority districts in their states. Before the decision was handed down, Florida had begun the process of following Texas’s gerrymandering example with new maps that will snuff out much of the remaining Black political power in the state. In Tennessee, Republicans carved up the state’s one reliably Democratic congressional district, which is centered in Memphis, one of America’s largest majority-Black cities. In Louisiana, the Supreme Court okayed a plan to call off an election that was already in progress in order to eliminate the second majority-Black district. Alabama got the Supreme Court’s blessing to reinstate a map that a lower court had determined was racially discriminatory, eliminating one of two Black-majority districts; Rep. Shomari Figures, whose election in 2024 marked the first time that Alabama had sent two Black members to the House of Representatives, will likely lose his seat. In South Carolina, the State Senate stopped short of approving a new map to eliminate the state’s only Democratic district and end Rep. James Clyburn’s 30-plus years in the House of Representatives, but Republicans will no doubt try again next year.
As shocking as it is, the Supreme Court’s decision is not surprising when considered in context. The court has long been gripped by what former Justice William Brennan called a “fear of too much justice,” one that flows from its perspective on race and racism. In Callais, as in a 2013 decision gutting a different provision of the Voting Rights Act, the conservative supermajority justified their decision by insisting that much has changed for the better in the South, including racism in voting practices.
Even putting aside the justices’ head-in-the-sand sensibilities about injustice in the South, their larger perspective on racism makes matters worse. The conservative majority subscribes to an ideology of colorblindness — the perverse idea that the way to deal with racial injustice is to ignore racism and treat everyone as though race does not matter. Conservatives have twisted Martin Luther King Jr.’s aspirational call to treat everyone equally, regardless of race, into a weapon to be used against inheritors of King’s struggle for racial justice. Colorblindness transforms any consideration of race into suspect, if not altogether illegal, behavior. This attitude is of a piece with the idea that the law — and the courts that interpret it — can address only openly expressed racist actions. The Supreme Court’s prevailing ideology privileges the perspective of the perpetrator of racial injustice, rather than its victim. As long as the perpetrator did not act with expressed intent, there is no avenue for recourse, regardless of the harm inflicted. Under the conservative majority’s framework, policies and practices that are race-neutral on their face but lead to harmful outcomes for Black people are beyond the reach of the law.
Supreme Court decisions from long before the current Roberts court reflect this tortured perspective. When the court examined the death penalty in 1987, the justices acknowledged that those convicted of capital crimes were 4.3 times more likely to be sentenced to death if the decedent was white, but they ruled that this was not proof of racial discrimination. That required evidence of some individual in the system — a prosecutor, a judge, a juror — displaying intentional racism against the defendant. More recent Supreme Court rulings have continued in this vein, most recently to prevent institutions of higher education from considering race to enhance the diversity of their student bodies. Instead, using race at all in admissions is now seen as the problem. If the conservative justices get their way, the same reasoning will apply to any issue in which there is a racial dimension: housing, environmental and climate justice, health care, employment, technology, and any other aspect of civic life.
Given all that, what’s next? People raising claims of racial discrimination in voting might try to offer evidence of intentional racism by pointing to the express statements or actions of lawmakers who are careless enough to say the quiet part out loud. Legislators can pass laws to bar partisan gerrymandering, eliminating the pretext for discrimination in voting rights gifted to Southern states by the court’s conservative majority. But people rarely proclaim publicly that they are engaging in racist behavior; sometimes they do not even think what they are doing is racist. And the political advantages to be gained, especially for Republicans, make any effort to outlaw partisan gerrymandering a long shot.
The story does not end there, though. Part of what this moment demands are efforts to increase our collective consciousness and civic engagement. Those who care about progressive change and racial justice have to understand the full extent of the damage caused by Callais and why it matters. Beyond that, we have to challenge the court’s flawed conception of race by remaining race-conscious. In part, that requires recognizing and challenging the ways that race shapes the distribution of benefits, burdens, privileges, and hardships in American society, to the disadvantage of Black and brown people. It also requires being concerned with the impact that a policy or practice is having on people’s lives, regardless of the intentions of those behind the policy. Finally, we have to build lasting, durable political coalitions that center the interests of those at the margins and on the bottom of the racial hierarchy. Those are the types of coalitions that drive social movements, which ultimately serve as engines for change.
Callais is a sober reminder of just how fragile the gains of the last half century are and that progress is always met with resistance and retrenchment. The road ahead will be long and difficult, but if we take stock of the lessons of Callais, we might be able to forge a different path forward that ultimately vindicates the promises made in the Constitution. That work — of forcing America to live up to its stated principles in its founding document — is the subject of an ongoing battle for racial justice and equality in this country. That battle is far from over.
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ABOUT THE AUTHOR:
Vincent M. Southerland is an associate professor of law at New York University School of Law, where he directs the Criminal Defense and Reentry Clinic. He also serves as the faculty director of NYU Law’s Center on Race, Inequality, and the Law, which engages in advocacy, research, and public education to advance racial justice. He is the co-editor of Race, Rights, and Redemption: The Derrick Bell Lectures on the Law and Critical Race Theory and the author of articles focused on racial justice, abolition, critical race theory, technology, and the criminal legal system.
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How Trump Mainstreamed White Supremacy | Joy-Ann Reid
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How did the United States arrive at this political moment? Joy-Ann Reid joins Waj to examine the political, cultural, and historical forces that have shaped the country over the past decade. Together they discuss Donald Trump's presidency, the evolution of the Republican Party, the rise of white nationalist movements, the media landscape, and what these developments could mean for the future of American democracy. In this conversation: • Trump's political legacy • White nationalism and American politics • The changing Republican Party • Media, misinformation, and polarization • What comes next for the United States Watch the full conversation and join the discussion below.
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