The Black Roots of “Rights and Privileges”

In January 1920 the Boston newspaper editor William Monroe Trotter and NAACP Field Secretary James Weldon Johnson testified before the United States Senate on behalf of the Dyer Anti-Lynching Bill.  The Bill was designed by Missouri Congressman Leonidas Dyer in reaction to the East St. Louis Race Massacre, during which that city’s white majority, enraged by the arrival of Black southerners to work in the local Aluminum Core company, indiscriminately attacked Black citizens, homes, and families during the summer of 1917. Like the Tulsa Massacre four years later, the East St. Louis Massacre had been coordinated by white citizens in collusion with the local police department, which had long been accused of “unwarranted violent treatment of the negro.”  Trotter’s radical National Equal Rights League worked directly with the Dyer Bill’s original co-sponsor, Massachusetts Representative Frederick W. Dallinger, to craft a piece of legislation to “protect citizens of the United States Against lynching in default of protection by the States.”¹ Trotter’s League had ties with Harlem socialists like Hubert Harrison and grass-roots Black community protesters in New York, Philadelphia, Chicago, and Boston.  They crafted a bill that made lynching a federal crime, which meant that the investigation, prosecution, and punishment of lynching and state-sanctioned violence would no longer be adjudicated by the same state and local courts that worked closely with the police forces that committed the crime.  Most importantly the Dyer Bill allowed the Federal Government to prosecute police officers who failed to provide equal protection to all citizens.

Although the Dyer Bill eventually stalled in the Senate–and although its descendants, like 2018’s Justice for Victims Against Lynching Act, and 2020’s Emmett Till Anti-Lynching Bill, have yet to pass both Houses of Congress–the different Senate arguments made in 1920 by Johnson and Trotter illustrate the central role that Black people have played in defining citizenship. While Johnson, with the aid of Joel Spingarn, insisted upon the “law abiding” nature of “the negro” as a way to justify the Bill’s constitutionality–“Colored people are particularly law-abiding people”– Johnson told New York Senator James Husted, “I do not know of a single instance, even in the most radical members [of the race], where they have fought against proper adjudications of the courts.” On the other hand Trotter emphasized Black humanity as the foundation for any federal definition of citizenship rights.  “I come all the way here [so] that you might hear on this question from the colored people themselves, as a representative of the National Equal Rights League, an organization of the colored people, by the colored people, and for the colored people.”  For Trotter and his fellow radicals in the National Equal Rights League, the Liberty League, and the militant African Blood Brotherhood Black people themselves defined the terms of citizenship through their militant defiance against state violence and white backlash. “The colored people themselves,” Trotter insisted, “are the arbiters of citizenship. Denial of citizenship to us is denial of citizenship to all humanity.”

Trotter’s arguments point to a fundamental fact at the heart of our discussions about “contested citizenship”–the fact that, as historians like Martha S. Jones and others have shown, we as Black people in the United States have always defined and conceptualized citizenship for ourselves, even if the legal apparatus of the American nation-state has defined citizenship through racial exclusion. Consequently, although citizenship itself is contested, Black people have used this contestation to challenge legal and political definitions of “rights and privileges” that have been designed to exclude them.

The entire concept of “birthright citizenship” emerged from African Americans’ consistent, and often radical demands, for “rights and privileges” that were denied to them under the federal Constitution. It has been argued, for instance, that the very reason the new country defined citizenship as “white and free” in 1790 was because of the presence of so many decidedly “unfree” Black, Brown, and indigenous people in its borders, particularly after free Black people in Massachusetts, Pennsylvania, and New York threatened to withhold taxes if property holding non-white men were denied the franchise. Black people in the decades before emancipation wrote themselves into the legal record in order to re-conceptualize the entire notion of citizenship itself.

Robert Morris, a Black man born in Salem, Massachusetts, did just that as one of the first Black attorneys in the country.  Morris challenged segregated public education in Roberts v. the City of Boston the 1849 Massachusetts Supreme Court Case in which he argued that equal protection under the law was a defining feature of citizenship. His co-counsel, future Senator Charles Sumner, built his argument around the notion that racial inequality was the result of a lack of Black access to white resources. For Sumner the unconstitutionality of segregation lay in the supposedly inferior facilities of the segregated Black school and the lack of resources for Black communities under “unequal schools.”  As Robert Morris pointed out, citizenship was not merely an exercise in access. More fundamentally, citizenship was a legal and political concept that protected human beings’ “rights and privileges.”

Although Morris’ argument did not win the day in Massachusetts–Chief Justice Lemuel Shaw’s decision became the basis for the 1896 Plessy v. Ferguson doctrine of “separate but equal”–but it did become the basis for the most far-reaching Constitutional amendment of the Reconstruction Era. The Fourteenth Amendment, long the object of scrutiny by Republican Senators from Rand Paul to Ted Cruz, was crafted, in part, by Charles Sumner. Sumner was inspired, no doubt, by his former Black legal partner to enshrine equal protection and federal protections of citizenship in the Constitution. The Fourteenth Amendment informed both the Fifteenth Amendment and the 1875 Civil Rights Act, both of which created the ideological and constitutional basis for the 1964 Civil Rights Act and the 1965 Voting Rights Act.

As we fight over police abolition, dismantling the carceral state, and economic justice, it is important that we recognize the power of Black people to challenge and shape the concept of citizenship to meet humanity’s most desperate needs. Neither Trotter nor Morris were successful in the immediate sense–we still do not have a federal anti-lynching law that would enable the investigation, prosecution, and punishment for violence inflicted upon Black people by the state, nor do we have “equal school rights.” Yet, the very notion of citizenship as a form of human rights and privileges, demanded and defined by Black people themselves, must be the foundation for our fight against legal and political injustice.