The Pluperfected Future: Encountering Ghosts in Family Photos, Historical Dolls and ‘The Black Panther’

by Patricia J. Williams

Published in The Nation Magazine, March 9, 2018


Some time ago, I discovered a trove of boxes stashed away in my late parents’ attic, and, ever since, I’ve been working my way through this archive of family photos, letters, scrapbooks, and other ephemera, which extends back almost 150 years. Two of the most precious things I’ve found are photos of my paternal great-grandfather and my maternal great-grandmother, both born into slavery. I am fortunate enough to have grown up with lots of stories passed down about both of them, but I had never seen either of their faces before. The sudden apparition of their oddly familiar features has been so startling, so jolting, so magical that I often feel as though I’m hallucinating. It is almost as if their images had coiled upward from the scrapbook, like smoke, and entered my body.

Their presence has bloomed within me, but also beyond me, like a gentle aura. There is something dark and inexplicable yet entirely illuminating in the eeriness of this encounter with ghosts. It is like looking at a jigsaw puzzle you thought you’d finished, but suddenly there are thousands of extra pieces, and you realize it’s an assemblage with no borders and an endless number of combinations. I try to read their lives from the fragments, the tea leaves of their long-gone presence.

I have always thought of reality as a present tense. But in this family archive, reality has leached all over the geography of time. I feel porous, unsettled in the coherence of an identity I had thought of as my own. It brings felt meaning to the koan that the novelist and Zen master Ruth Ozeki frequently cites as her meditative inspiration: “What did your face look like before your parents were born?”

This intimate encounter with images of my family’s past has overlapped with my visit to a museum exhibit featuring 150 black dolls from the collection of Connecticut lawyer Deborah Neff. The dolls were handmade by African-American women, most of them enslaved, and intended as toys for both their black and white charges. The show is on display at La Maison Rouge, a small museum in Paris, through May 20. Beautifully curated by the French filmmaker Nora Philippe and the American art historian Deborah Willis, these gathered dolls are a quiet army, the careful craft of women who left little other trace, whose names and lives were otherwise erased.

The dolls were fashioned from whatever materials lay at hand—scraps of sackcloth, gingham and silk, bits of leather and wool, coconut shell, hardwood, seeds and beads—but it’s the scripture of their faces that I found most arresting. Their wordless witness invites a kind of guessing game about who their makers were and for whom they were intended. I pore over the smallest stitches and details of style and color, as though I could decipher a grammar in each placement of a ribbon; I search for meaning in their button eyes.

The philosopher Emmanuel Levinas wrote that it is the face-to-face encounter that inspires one to serve and to give to others, for it “involves a calling into question of oneself, a critical attitude which is itself produced in face of the other….”

In my meditations on those photos of my great-grandparents, imagining what my face looked like before my parents were born has merged with the mute inscrutability of those collected black dolls’ faces into a field of unconfined mythmaking. Thinking mythologically is comforting, I suppose: It signifies something beyond quotidian concerns and invites a sense of belonging to a grand narrative or idealized creation story. In supplying archetypes that are foundational and originary, myths connect the generationally disconnected, providing a sense of continuity from the past to the present, and then on to a promised—or even destined—future.

At the same time, the yearning for creation stories can be born of discontent, displacement, and despair. Mythmaking can sometimes risk generating a too-romantic sense of nostalgia for times-that-never-were and for the purities of blood-and-soil belonging. (The tension between these two visions—utopia and the exile therefrom—are on full display in the furious online debates about cinematic representations of home, loss, and heroism in Black Panther. Indeed, the central challenge of Afrofuturism, the sci-fi/fantasy genre of which Black Panther is a prime example, is how best to imagine a future in which children of the African diaspora survive, make the temporal crossing safely, and endure.)

The word “utopia” literally compresses into its etymology a good place that is also a nonexistent place. Therefore, when I search the photos in my family archive or the dolls in the museum for signs of who I ought to be, I have to remind myself that I am not only trying to reconstruct the precise facts of particular lives. Like Wakanda, the idyllic setting of Black Panther, these objects are imaginative spaces, fields of psychic desire. Their insistent traces offer a resistance to ultimate effacement as well as room to dream theories of the possible.

In this sense, these complex visual effigies have taken up residence within me like marvelous secret agents of love, sadness, healing, and heroism. Their shapes have insinuated themselves as armatures for carrying on, brave imaginaries for the mind and heart. They are surely available as well to be mined for all sorts of direct connections within unbudging political frames, but, while the dolls are singular in form, I experience each unique depiction as expressively unbounded. Thus they have become ethical reference points in the seeping disfigurements of trauma, rage, cruelty, and death. They speak figuratively. The echo of their voices is an epiphany of repair, an assurance to lost children of their place in worlds to come.


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Teachers Are Being Trained to Shoot Their Students

But we can’t shoot our way out of America’s gun-violence crisis.

Within the first 23 days of 2018, there were 11 school shootings in the United States. In lieu of any serious discussion about gun control, there has been instead a proliferation of laws and bills that would arm teachers, and train them to be able to kill. Observes Adam Skaggs, of the Giffords Law Center to Prevent Gun Violence, “it’s the idea that people need guns everywhere—city streets, public parks, even government buildings.” It’s also the response of a nation at war with itself.

One example of the trend is the Buckeye Firearms Foundation’s funding of so-called “Faster” programs, three-day training sessions for teachers from around the country. In addition to target practice, one day of the training is devoted to “mindset development,” or bolstering teachers’ preparedness to shoot after split-second assessments. Trainees are asked “to close their eyes and imagine the student entering the classroom with a gun” and then are taught how to command the grit necessary to kill that student. One teacher from Colorado told the BBC that “she decided to picture her favourite student during the preparation exercises, in an effort to harden herself to the worst possible eventuality.” A Faster instructor was quite encouraging of such resolve: “if we can have them win in their minds first, against that student, then when it comes to the actual incident they will prevail.”

What an astounding proposition, this tragic lesson about winning “in their minds first, against that student….” This adherence to a toxic shoot-‘em-up Wild West ethic puts teachers in a clear bind: They must labor from the untenable position of actively imagining their students in the crosshairs, the objects of target practice. If this isn’t the end of civilization, I don’t know what is.

Deputizing teachers as locked-and-loaded “peace” officers speaks volumes about how challenged police are by the quotidian nature of gun violence. It should make us ponder how much democratic assumptions about the state having a monopoly on violence have been frayed by anarchic ideologies of “every man for himself.” And it brings that us-versus-them mentality into the classroom. The Colorado teacher imagined her favorite student; I’m guessing that many would imagine their worst student, or some stereotype of dangerous otherness. Either way, the imaginative act of seeing the best as worst and the worst as expendable is a separate danger in itself—a premeditated license to shoot faster, ever faster…

In the United States, more than half the population believes that having a gun enhances the chances of survival in a world overrun by gangs of terrorists. But data shows very conclusively that gun ownership is much more likely to increase the risk of harm. Research shows, as Slate notes, “a gun in the home was far more likely to be used to threaten a family member or intimate partner than to be used in self-defense.” According to the Brady Campaign to Prevent Gun Violence, not only is “[t]he risk of homicide…three times higher in homes with firearms,” but in addition, “[k]eeping a firearm in the home increases the risk of suicide by a factor of 3 to 5 and increases the risk of suicide with a firearm by a factor of 17.” There is no reason to suppose that such figures wouldn’t apply to gun-centered classrooms.

I can’t comprehend this foolish disregard of empirical data about what actually reduces gun violence.

When the nuclear-warning system accidentally went off in Hawaii a few weeks ago, many experienced the profound helplessness of confronting an unfathomable force of violence. Perhaps it lends a certain sense of control to imagine that we’d have time to “protect” ourselves by crawling into an air-raid shelter, but in case of nuclear attack, it is clear that anyone within broad range would be incinerated instantly. The only real hope for survival is limiting access to and control of the weapons themselves.

The same holds true for the extraordinary arsenal Americans own privately. We can do our best to protect ourselves against every unexpected irrational attack like the one in Las Vegas, but unless we wrap our bodies perpetually in Kevlar and travel in bomb-resistant tanks, the problem remains: There are simply too many guns in circulation for us ever to imagine that we might protect ourselves without simply reducing the number of them. In America, guns exact a toll greater than that of active warfare. According to The Guardian: “Since 1968…there have been 1,516,863 gun-related deaths on US territory. Since the founding of the United States, there have been 1,396,733 war deaths. That figure includes American lives lost in the revolutionary war, the Mexican war, the civil war (Union and Confederate, estimate), the Spanish-American war, the first world war, the second world war, the Korean war, the Vietnam war, the Gulf war, the Afghanistan war, the Iraq war, as well as other conflicts, including in Lebanon, Grenada, Panama, Somalia and Haiti.”

And yet… Faster’s training does map rather neatly onto America’s romance with redemptive vigilantism. Previously in this column, I recommended Harvard scholar Caroline Light’s excellent book Stand Your Ground: A History of America’s Love Affair With Lethal Self-Defense. Let me add to that recommendation Jean-Paul Sartre’s short story “Erostratus.” There, the narrator derives misanthropic and sexual pleasure from carrying a gun hidden in his pocket. That exhilaration comes, he says, not from the gun, but rather “it was from myself: I was a being like a revolver, a torpedo, or a bomb.”

Philosopher Robert Esposito writes that “things constitute the filter through which humans…enter into relationship with each other.” Guns, torpedoes, and bombs are precisely such things. Warns Esposito: “The more our technological objects, with the know-how that has made them serviceable, embody a sort of subjective life, the less we can squash them into an exclusively servile function.”

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Intimate Justice


published in The Times Literary Supplement, JANUARY 2, 2018.


“Five Day Forecast” by Lorna Simpson, 1991

© Tate, London 2017

Silenced and objectified: black women in the US


Some years ago I attended a play about the race riots in Los Angeles in 1992. The event, sponsored by the Institute for Arts and Civic Dialogue, was followed by an open discussion among actors, producers and a broader than usual audience. What I remember most is an older black woman volunteering that a white man sitting next to her had just asked for her view on a particular matter. Most importantly, he had asked in a way that made her feel that he honestly wanted to know. “In my entire life,” she said, “I have never had a white man ask what I was thinking about anything at all.” Her pleased surprise resonated with many other women of colour in the audience who recognized themselves in her experience: age, gender and racial dynamics combined in a peculiarly potent vector of social anxiety. The topic of women being silenced, sexualized, bullied, or ignored has been in the news a great deal recently. There has been an un­precedented outpouring of testimonials from women describing their own experiences at home, in the boardroom, on television and in government. Further pockets of debate are concerned with whether white women speak over black women, whether black men talk over black women, or whether minorities have any voice at all. Lack of civility is underwritten by broad habits of courtesy that dictate whose voices count; which bodies are or are not capable of speech, witnessing, forming an opinion. Who speaks to whom? Who is spoken of? Whom do we horrify into silence? In the US, such questions are intimately tied to the longue durée of race, slavery, practices of colonial disregard, and the struggle for Civil Rights. And among the voices most insistently suppressed, written off, and written out are those of black women and girls.

“Long portrayed as a masculine endeavor, the African American struggle for progress often found expression through an unlikely literary figure: the black girl.” So runs the premiss of Nazera Sadiq Wright’s Black Girlhood in the Nineteenth Century. It is arresting in its pithiness: the “unlikeliness” of black girls in political struggle, in literary figuration, in the geography of childhood or adolescence. That purported lack is suggestive – being “unlikely” is also about being unliked, and so generally hidden or ignored. Assertion by such a one may be seen as unsettling, wrong, or at best surprising. Shatema Threadcraft’s Intimate Justice: The black female body and the body politic takes up a similar theme, exploring “the ways in which the black female body . . . [has] been constrained and diminished within the American body politic”. If forced breeding was the norm for black women in slavery, she says, forced sterilization and eugenics programmes to reduce the black birth rate became prominent features of public policy in the century that followed. If the white feminist movement was largely about leaving the cloister of the domestic sphere for employment in an erstwhile man’s world, black feminism’s goal has been more about access to private spheres of shelter from public exploitation.

The tension between intimate feelings and imposed stereotypes is foremost in both Wright’s and Threadcraft’s books. Together, their research draws on nearly 200 years of mostly under-attended literature to help us make sense of enduring polarities in aesthetic, moral and legal judgements. A study by Georgetown University’s Center on Poverty and Inequality, too recent to have been addressed in either book, is a case in point. Researchers found that African American girls are viewed as generally “less innocent” than their white peers – a bias that begins when they are as young as five years old. (Black boys face similar prejudices but not until they are nine or ten.) Compared to girls of other races, black girls are perceived to warrant less patience, protection and support; they are also thought to be prematurely knowledgeable about a range of adult topics, particularly sex. This leads to their being less mentored, more harshly disciplined, and more frequently criminalized. The authors refer to “adultification”, a process by which children are not accorded the realities of inexperience and impressionability. If “the Negro” has been relentlessly figured as childish, not so actual black children.

Black Girlhood unpacks the historical assumptions behind such figuration, cultivated during slavery, and considers the sometimes reactionary efforts to reverse established tropes in the years after Emancipation. “Conduct manuals”, designed to redeem wayward black girls, proliferated in the late nineteenth and early twentieth centuries. One such handbook was entitled Floyd’s Flowers: Or, Duty and Beauty for Colored Children, written in 1905 by Silas Floyd, a black minister whose ambition was to instruct young ladies in the arts of refinement. The “types” into which he divided his flowers described labels by which black girls are, Wright argues, judged to this day: the obedient Christian, the prematurely knowing girl, the self-respecting working girl, the educated girl, the uplifter of the race, the don’t-care girl, the loud girl. Anxious instruction took place against the backdrop of a larger society that degraded black femininity and deemed it incorrigible. Deborah Gray White’s classic study, Ar’n’t I a Woman?: Female slaves in the plantation South (1999), describes the most powerful antebellum typ­ologies as the Jezebel, the Mammy and the “sassy” ball-buster (who later morphed into Sapphire, the gold-digging, emasculating “angry black woman” of a wife in the black-faced radio comedy, Amos ’n’ Andy).

One might add to this list “the lying girl” – a figuration that crops up repeatedly in forensic scenarios. Consider the case of Rachel Jeantel. During the trial of George Zimmerman, the Florida vigilante who shot dead Trayvon Martin, the prosecution called to the stand the nineteen-year-old Jeantel, who had been on the phone with Martin until moments before he was shot. As Eric Deggins wrote in the Tampa Bay Times:

[Jeantel’s] difficulty in carrying herself the way mainstream pundits and legal experts expected was painfully apparent. She mumbled. She spoke in a jumble of words and phrases that other attorneys and even the mostly-white jury couldn’t understand. She had to admit dictating a letter she once claimed she wrote, which was sent to Martin’s mother describing what she heard during the night of his death. That admission came in the most painful way: Jeantel confessed she couldn’t read cursive writing.

Jeantel first met Martin in the second grade. They had reconnected only a few weeks before his death, when he had called because he remembered her birthday. Benjamin Crump, the attorney representing Martin’s family, later revealed that Jeantel particularly valued Martin’s friendship because he was one of the few people who never teased her about her weight or dark skin. That side of Martin was concealed in the courtroom as Zimmerman’s defence team built a picture of the pair as “thugs”. In the media as well as on cross-examination, Jeantel was not merely mocked but demonized as an ugly, combative liar, out to crucify an innocent man. Writing in Salon magazine, Brittney Cooper observed that “These kinds of terms – combat, aggression, anger – stalk black women, especially black women who are dark-skinned and plus-sized like Rachel . . . . [I]t became easy for the white male defence attorney to treat [her] as the one who needed to be regulated”.

Distrust of black witnesses dates back to one of slavery’s most intractable premisses – that a slave’s word is incredible. It was a logical corollary of Supreme Court Justice Roger Taney’s premiss in the infamous case of Dred Scott vs Sandford (1857), that black people “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit . . . . bought and sold and treated as ordinary articles of merchandise and traffic, whenever profit could be made by it”. (As the legal historian Ariela Gross wrote in Double Character: Slavery and mastery in the ante-bellum southern courtroom, 2000, “honor thrives best with a dishonored class”; and the honour at stake was that of white men who increased their stock of slaves by routinely raping their women.)

Imagining black females as incapable of credible testimony has far-reaching consequences. In the US, African Americans represent 17 per cent of all girls enrolled in public schools, yet they are 43 per cent of those suspended, expelled, or arrested by school police. In wider society, the rate at which black girls and women are disciplined, arrested, or criminalized is rocketing. According to the historian Andrea Ritchie, writing in the New York Times last year, “from 1980 to 2014, the rate of growth in the number of women in prison outpaced that of men by more than 50 percent (and black women continue to be incarcerated at twice the rate of white women)”. And yet the statistics do not give a full picture of the complex odds and petty cruelties behind such numbers. A study, Unlocking Opportunities for African American Girls: A call to action for educational equity, published by the national Women’s Law Center in 2014, discusses the case of Erica DeRamus who, in 2010, “went to her prom in a knee-length strapless dress which her Oxford, Alabama school said violated its dress code because it was too short and too revealing ‘up top’”. The school offered DeRamus and others accused of violating the dress code the choice of being “paddled” or suspended; she chose suspension, feeling herself “too old to be paddled”.

It is worth emphasizing how much this refusal was itself a complicated act of resistance. Alabama is one of nineteen states where public schools may use corporal punishment to discipline students, mostly by wooden paddle. (The Washington Post reported that in one Florida high school, students in woodwork classes actually make the paddles themselves, according to specifications: “16 inches long, 5 inches wide, and half an inch thick and made of ash wood”.) Each local school board de­termines the conditions but the policy at Alabama’s Alexander City School is typical: “three licks administered to a student’s buttocks”. If this seems a peculiar, erotically charged antidote to alleged immodesty, it captures the tensions between prurience, prudery and punishment that a history of manipulating slave bodies has seared into the American psyche. Elsewhere, Ritchie describes another case: “In 2015 Charneshia Corley was pulled out of her car at a gas station after a police officer claimed he smelled marijuana during a traffic stop. Two female officers then forced her legs apart and probed her vagina in full view of passers-by”. In light of two other incidents of this nature, the Texas Legislature passed a Bill banning cavity searches during traffic stops without a warrant. Yet, while regulations vary by state, it is still legal to obtain a warrant for vaginal inspection for minor misdemeanours. In Arrested Justice: Black women, violence, and America’s prison nation (2012), Beth Richie, Director of the Institute of Race and Public Policy at the University of Illinois, has documented numerous cases in which routine police investigations have turned into sexual assault.

Driving the recent increase in the number of juvenile arrests is the militarization of American public schools, particularly, although not exclusively, in poor black neighbourhoods. In many schools, police officers outnumber guidance counsellors or nurses. The so-called school-to-prison pipeline tends to criminalize behaviour that is at worst sullen or prankish, and the Children’s Defense Fund reports that 927 American children are hit by school officials on an average day. One recent incident was caught on video when a sixteen-year-old African American student at Spring Valley High School in South Carolina silently refused to hand over her mobile phone when asked by the teacher. She was a quiet girl, new to the school, recently orphaned by the death of her mother and placed in foster care. She was, indisputably, in a dour mood that day, although nearly all media accounts left out any mention of why that might be. A school police officer lifted up her chair and slammed her to the ground; he seized her arm and flung her across the classroom before kneeling on top of her, handcuffing and arresting her. The girl’s arm was broken, and she suffered carpet burns to her face and abrasions to her ribs and neck. Although the officer was later fired, the sheriff’s office said the girl bore at least some responsibility because she “started it” and had also “resisted arrest”. Niya Kenny, a classmate who called for the officer to stop and for her classmates to record what was going on – “I was . . . crying like a baby” – was also arrested and charged with “disturbing school”.

Anyone who lives in the US for any length of time learns certain habits of regard when it comes to black girls. Tropes span lifetimes – they are ubiquitous and malleable. Reflecting on her time in the White House, Michelle Obama spoke of not only having broken a glass ceiling as the first black First Lady but of having to survive the falling shards: “The shards that cut me the deepest were the ones that were intended to cut”. So, too, her daughters were vilified in the right-wing press as over-educated Jezebels or prematurely knowing Topsys. Sasha and Malia were rarely accepted as representative of American teenagers: indeed, Malia’s wearing of a T-shirt with a peace symbol on it during the G8 talks of 2009 drove commentators on the conser­vative website Free Republic to call her – then eleven – “a typical street whore”. (This and many other slurs were, after some delay, removed by moderators.) When, in 2016, she was accepted into Harvard, disparagement on the Fox News website alone called her a “parasite”, “mudslime” and a “Ni@@er”. By the same token, as reported by the Washington Post in 2014, when Sasha, then thirteen, failed to smile enough during the annual White House Turkey Pardon, she became the don’t-care girl, chastized by the Republican staffer Elizabeth Lauten (who later resigned) for not showing any “class” and advised to comport herself “like you deserve respect, not a spot at a bar”.

In the US, the average age at which girls enter sex work is between twelve and fourteen: many are treated as criminals, and a disproportionate number of those prosecuted for prostitution or for loitering with intent are African American. In a study conducted in 2012 by Los Angeles County, 92 per cent of the youth identified as trafficked sex workers by the County Probation Department were African American. Insofar as the very structure of prosecution treats these children as agents rather than victims, this disparity is one of the most glaring consequences of the adultification described in the Georgetown report. The Revd Silas Floyd’s stern attempts to add lady-like nuance find modern echoes in national black sororities, such as Alpha Kappa Alpha, and middle-class women’s clubs such as Jack and Jill, founded in 1938 to provide exemplary social opportunities for young black people, and still going strong. Then there are venerable church ladies like Coretta Scott King, faithfully promoting sincere but sometimes suffocating ideals of respectability. (These are worlds well documented in Margo Jefferson’s Negroland: A memoir, in which the author deconstructs the anxieties of her own upper-middle-class black upbringing.)

In Intimate Justice, Threadcraft notes that one counter to all this lay in the political resistance of “blues women” such as Ma Rainey and Bessie Smith: “the black feminist blues tradition included models of autonomous, sexually aware black womanhood and celebrated un­domesticated and even non-heterosexually oriented black female sexuality”. Given the strict ideals of respectability imposed on black girls and women, it is, she says, no surprise that Beyoncé’s album Lemonade “found such widespread yet very particular popularity – among black women, it spoke to the heart. Not since Billie Holiday has there been such an explicit artistic acknowledgement of black female inner suffering, vulnerability, imperfection”. Featured in the album’s video is an array of black women and girls who have been publicly disrespected, from Serena Williams to Sybrina Fulton, Trayvon Martin’s mother. As Zandria Robinson put it in Rolling Stone: “We are to be seen, they say, not just watched and consumed”. Perhaps more compelling than the music, these images brim with emotion beyond all propriety or convention.

The failure to cherish the black female body is a problem in many other theatres of intimacy, including just plain neighbourliness. Years ago, I volunteered in New York’s community gardening programme. Since I had few other skills in horticulture, my job was weeding, for which I was joined by two young African American girls who objected to the enterprise. They described the task as “hateful”. “Why?” I asked, to which one retorted: “Why shouldn’t weeds have a right to grow too?” The other observed: “I’m more like a weed. I don’t like all these perfect flowers”. It is a striking simile. At only eight or nine years old, these children’s sense of being uprooted or less tended ran deep. It reminded me of the psychologist Kenneth Clarke’s experiment in the 1950s, in which he presented a black doll and a white doll to children and asked them which they liked better, and then which they resembled more. Almost all preferred the white doll, and when pressed about which doll resembled them, one child pointed to the black doll and reported “that’s a nigger. I’m a nigger”. (Clarke’s study became the foundation for formally ending Jim Crow laws, cited in the Supreme Court’s reasoning in the case of Brown vs Board of Education in 1954, when racial segregation in public schools was deemed unconstitutional. ) The girls in the garden, however, displayed a resistance beyond mere recognition of their own stigmatization. To them, weeds had a right to be celebrated.

In the US, the notion of childhood as a garden of sweetness is pretty much a whites-only preserve. “It’s time to create language that values justice over innocence”, wrote Robin Bernstein responding to the Georgetown study in a New York Times editorial; “The most important question we can ask about children may not be whether they are inherently innocent. Instead: Are they hungry? Do they have adequate health care? Are they free from police brutality? Are they threatened by a poisoned and volatile environment? Are they growing up in a securely democratic nation?” And, as Threadcraft puts it, any theory of corrective justice must acknowledge that our sexual, reproductive and caretaking capacities are not natural – that they, too, require resources, protection, and support as well as social contexts in which they can be developed and exercised – and that black intimate capacities have been profoundly diminished under racial domination in ways that theories of corrective racial justice must explicitly address.

White bodily integrity sits atop all hierarchies of power in the US, governing with a somatic force that underwrites persistent segregation and anti-miscegenation. As Saidiya Hartman noted in her study Scenes of Sub­jection: Terror, slavery, and self-making in nineteenth century America (1997), the “emphasis on blood, sexuality and commingling” has given rise to a nominally liberal yet exclusionary state in which “sentiment sanctions black subordination because affinity and desire ultimately eclipse equality”.

The aesthetic devaluing of black femininity is reflected to some degree in statistics about black/non-black intermarriage in the US – as of 2010, 8.5 per cent of married black men and 3.9 per cent of married black women had a white spouse. (Compare this with British rates, as reported by the Economist in 2014: “a Labour Force Survey reveals that 48% of black Caribbean men and 34% of black Caribbean women in couples are with partners of a different ethnic group – with higher proportions still among younger cohorts. Black Caribbean children under ten years old are outnumbered two-to-one by children who are a mixture of white and black Caribbean”.) Continuing segregation in neighbourhoods and schools is one reason for such low American rates, as well as status issues, but the underlying taboo is manifested in the degree of anger at the children of such unions: a recent advertisement for Cheerios, in which a little girl touted the benefits of a healthy breakfast to her white mother and black father, was met with sufficient outrage for the company to shut down its website.

There is a joke in some indigenous communities that a typical Native American family is composed of mother, father, three children and an anthropologist. There is a concomitantly cruel one about African American families: no mother, no father, kids who shouldn’t have been born, and a bleeding-heart social worker. The image empties all humanity from the black family, whose very existence is figured by absence. We tend to see less of those who do not conform and so invisibility on top of invisibility makes the project of cohering as political subjects – as citizens – difficult. Part of what is missing is a broader social lens through which to translate the code-switching and plays of identity that black girls and women have always deployed as inventive agents. These are the tricks of the trade, as my grandmother put it, allowing black girls not only to move in hostile landscapes but sometimes to thrive by sailing under the limbo pole of unkindest cut.

Consider again the range of girls hidden in the shadows: the runaway girl, the exploited girl, the despairing girl, the fear-of-embarrassing-others girl, the walking-disappointment girl, the yearning girl, the alone girl, the brilliant girl, the contented girl, the hopeful girl. Because of Norman Rockwell’s portrait “The Problem We All Live With” (1964), six-year-old Ruby Bridges became a visual symbol of strength, grace and determination; in 1960, she (and she alone) had integrated the William Franz Elementary School in New Orleans – amid a riot of spit, spite and rotten tomatoes. But it is unclear whether we have yet recognized the scarring isolation and trauma that Bridges must have suffered, along with Linda and Cheryl Brown, the sisters on whose behalf the litigation in Brown vs Board of Education was fought. Not to mention the uncounted other children who continue to in­tegrate into white landscapes, often by themselves – for American schools are, according to a report from 2013 by the Economic Policy Institute, more segregated today than they were during the Civil Rights movement. We know these children for their strength but not for their internal battles. Quiet action is, of course, not inaction. The collective cultural suppression of black girls’ complex emotional and intellectual lives has been accomplished by crude ideologies that diminish the cognitive capacities of us all. Yet it is tempting to draw too simple a contrast: the violence waged against black masculinity is public, physical and deadly, while that against black femininity is domesticated, psychic, a test of strength and endurance. While acknowledging the intersection of race and gender in that truism, it must also be held in mind that blackness itself operates to erase awareness of intimate, individual processes. Kevin Quashie in The Sovereignty of Quiet: Beyond resistance in black culture (2012), observes:

black subjectivity exists for its social and political meaningfulness rather than as a marker of the human individuality of the person who is black. As an identity, blackness is always supposed to tell us something about race or racism, or about America, or violence and struggle and triumph or poverty and hopefulness. The determination to see blackness only through a social public lens, as if there were no inner life, is racist.

Not that this should be understood as an exclusively white practice of thought, for it “creeps into the consciousness of the black subject” in what Quashie critiques as “the imperative to represent”. The tension between public stereotypes and felt experience exists in both black males and females, but if, as the theorist Aimee Meredith Cox states in Shapeshifters: Black girls and the choreography of citizenship (2015), black girls are “illegible” at a moment when black boys garner more concern, there is little point in “placing black youth in discursive predicaments where they must compete for space at the bottom”.

Consider another way in which the black girl can be glossed. In December 2016, the then President-elect Donald Trump went to Mobile, Alabama, as part of a victory tour. His welcome at the airport was quite the show: Senator (now Attorney General) Jeff Sessions met him on the tarmac amid a flotilla of girls attired in full antebellum ballroom regalia – frou-frou gowns in Easter egg colours, with hoop skirts and large frilled hats. They were the Azelea Trail Maids, local high school seniors chosen every year since 1951 to act as “ambassadors” for the city of Mobile. It is considered an honour to be selected, and it would not be unfair to suppose that the wedding-cake frippery is meant to suggest the flower of Southern girlhood, the romance of debutante cotillions, the languidness of steamboats on the Mississippi and the plantation politics of Gone with the Wind, as well as impenetrably layered maidenhood.


On close inspection of the scene, which was splashed across the front pages of most major American newspapers at the time, one could see that at least one of the maids, smiling shyly from beneath the shade of a lavender sun bonnet, was black. I was startled by a figure that immediately brought to mind a twinning doll – a common nineteenth-century toy with two heads, whose torsos met in the middle, with a long skirt. Held vertically, the skirt would fall and obscure the other end: flipped one way, it became a white doll; turned the other, a black doll was revealed. In Racial Innocence: Performing American childhood from slavery to civil rights (2011), Robin Bernstein observed that “the doll’s fusion of black and white referred to racial mixing, sex and rape in the plantation system. African American women, the most likely creators of this doll form stitched politically volatile ideas into the children’s toy and thereby made these ideas appear innocent”. Here, it was as though one doll had been accidentally on purpose turned upside down. Most of Mobile’s city officials defended the costumes – as well as the gender politics – as representing the new, integrated Alabama.

It was an interesting gesture – to take an iconic image of white womanhood and insert a brown face or two – but if the aim was to “fix” the old and project the new, it failed. Instead of speaking to the question of present-day equality for black women or girls, it sought to enfold them in revisionist ideologies. To me, the great-great-granddaughter of the offspring-made-property of plantation masters, the literal attempt to dress up historical atrocity is painful; when those gowns were in fashion, black girls were owned, bestialized and impregnated for profit. Here was a project that, first, sanitized history by resurrecting the dead from all sides of a conflict and, second, draped them in costumes representing the more morally indefensible side – with the implicit caption “See how far we’ve come!” This was Confederate sentimentality disguised as colour blindness.

“Isn’t inclusion what you wanted?” “You’re the one debasing this happy cotillion with foul intention!” Such discourse is often deployed to displace responsibility for racial distrust: there is talk of blacks “playing the race card”, or defensive posturing whereby white attempts to accommodate black people are deemed proleptically futile, and sure to be met with ingratitude. Bernstein describes romanticization of the sort witnessed in Alabama as framing, “not only the ability to remember while appearing to forget, but even more powerfully, the production of racial memory through the performance of forgetting”. What choices for self-figuration does this circular folly suggest to black girls and women? A conventionally “pretty” picture captures the spirit of a whole system predicated on certain figures being ornamental, spoken for and styled, for better or for worse, by others. In The Law Is a White Dog: How legal rituals make and unmake persons (2011), the anthropologist Colin Dayan describes the “afterlife of ostracism” as “disposability”, or the phenomenon of “incessantly dying in new ways”. It is an elegant way of tracing the bottom line: how does anyone survive having been marked with the trope of un-life? Is there a path to vivacity from being captured and captioned as the object of others’ beliefs?




Nazera Sadiq Wright, Black Girlhood in the Nineteenth Century (256pp. University of Illinois Press. $95. 978 0 252 04057 3; paperback, $28. 978 0 252 08204 7)

Shatema Threadcraft, Intimate Justice: The black female body and the body politic (224pp. Oxford University Press. £29.99; US $39.95. 978 0 19 025163 5)

Deborah Gray White, Ar’n’t I a Woman?: Female Slaves in the Plantation South (1999)

Rebecca Epstein, Jamilia J. Blake and Thalia González, “Girlhood Interrupted: The Erasure of Black Girls’ Childhood”, Center on Poverty and Inequality (2017;

Andrea Ritchie, Invisible No More: Police violence against black women and women of color (352pp. Beacon. £17.99 US $21. 978 0 8070 8898 2)

Richard Rothstein, “For Public Schools, Segregation Then, Segregation Since: Education and the unfinished march,” (2013; Economic Policy Institute;


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Sitting Ducks

By Patricia J. Williams

Published in The Nation Magazine, JANUARY 22, 2018

The shadow of a helicopter hovers over feral pigs near Mertzon, Texas. While sport hunting from the sky is illegal, the Texas Parks and Wildlife Department allows aerial gunning of invasive hogs with a permit. (AP Photo/Eric Gay, File)

“Nambia’s health-care system is increasingly self-sufficient,” said President Trump last September, during a meeting with African leaders at the United Nations. No singular slip of the tongue, Trump repeated the gaffe again in a speech whose audience included the presidents of both Namibia and Zambia. Hilarity ensued in the Twitterverse: “Can’t wait for Trump to visit Nambia and their technologically advanced neighbors in Wakanda,” quipped Stephen Colbert. (Wakanda is the fictional home of the Marvel Comics’ character Black Panther.)

Yes, it is funny in the abstract, this malapropism of the dear leader. But whether Trump is ignorant, blind, or demented, he consistently confuses individuals for races, races for nations, nations for continents, continents for contagion, and contagion for individual irresponsibility. That’s why all this is ultimately so unfunny in practice: The Trump administration has cut global development aid, reduced funds for UN peacekeeping in war-torn countries, and urged a “merit-based” system of US immigration policy where “merit” excludes “people from high crime countries which are doing badly” and whose preemptive breadth apparently finds no merit in anyone from “hut”-dwelling Nigerians or from any African country, real or (mostly) imagined.

At the same time, Trump, ever the tone-deaf imperial entrepreneur, just loves Africa’s “tremendous business potential…”: “I have so many friends going to your countries, trying to get rich. I congratulate you. They’re spending a lot of money.”

Sometimes it’s just so hard to know where to begin, but let me follow one small thread—to wit, the entrenched narrative of the Great White Hunter and erstwhile Deliverer of Little Brown Brothers. Indeed, there’s a literal manifestation of this mindset within the extended Trump clan: After a 2011 safari to Zimbabwe where he killed an elephant, a leopard, a crocodile, a Cape buffalo, and oh-so-much-more, our president’s son Donald Trump Jr. wrote of his beneficence: “Bottom line with out [sic] hunters’ $ there wouldn’t be much left of africa [sic].”

This logic may seem opaque to the uninitiated: After all, there has been a 65 percent decline in the population of forest elephants across central Africa just in the decade between 2004 and 2014. In addition, the population of savannah elephants declined continent-wide by 8 percent every year between 2010 and 2014. At that rate, the population will decrease by half every nine years. If Trump Jr.’s wisdom escapes you, it might help to recall the controversy around Corey Knowlton, a man who won an auction at the Dallas Safari Club back in 2014. He bid $350,000 for the privilege of shooting a black rhino, a species close to extinction then, and which may be extinct by now. Mr. Knowlton explained that he was actually helping their survival because he planned to cull only an older cranky bull, giving younger black rhino males the chance to rise to the top of the hierarchy of aggression. It’s the circle of life! Plus, the money would go to the government of Namibia, which needs it to pay its park rangers to protect against poachers, which Mr. Knowlton most emphatically is not. (That would be the circular thinking of life.)

It oughtn’t be so surprising, then, that this past November of the first year of his presidency, Donald Trump Sr. drafted a policy that reversed an Obama-era ban on importing trophies from elephant kills in Zimbabwe and Zambia, using an exception to the Endangered Species Act that permits importation of trophies if “hunting actually benefits conservation for that species.” Wayne Pacelle, president of the Humane Society, describes the arrangement as nothing more than “pay-to-slay,” and, after a great deal of public outcry, President Trump suspended the suspension of the ban, promising a thorough review before making a final decision. As CNN reported on January 9, 2018, “White House officials declined to say whether the review is ongoing, when it might conclude, or when the President’s decision may be announced.”

The thrill of the kill is not just about going on African safari, however. Hunting rare and “exotic” animal populations is a billion-dollar business just within the United States. The Fish and Wildlife Service allows the killing of certain rare or threatened species if game-hunting businesses take measures such as contributing 10 percent of hunting proceeds to conservation efforts. At Ox Ranch in Uvalde, Texas, trophy hunters pay $7,500 to kill a Himalayan tahr, $9,500 for an Arabian Oryx, $12,000 for a sitatunga antelope, $15,000 for a black wildebeest, and $35,000 for an African bongo antelope. “We love the animals, and that’s why we hunt them,” says Ox Ranch’s CEO, Jason Molitor. And according to John Tomecek, of Texas A&M’s AgriLife Extension Service, “Ranchers can sell these hunts and enjoy the income, while doing good for the species.”

 More enjoyable yet, Ox Ranch “offers its guests the opportunity to drive and shoot World War II-era tanks. People fire at bullet-ridden cars from atop an American M4 Sherman tank at a shooting range built to resemble a Nazi-occupied French town.”

Elsewhere in Texas, wild boars have been deemed far from extinct. Indeed, there’s an overpopulation of them, at least as asserted by many farmers over whose land they roam. In an act of public-spirited volunteerism, Ted Nugent—hard-rock singer and self-proclaimed guru to Donald Trump—Ted Nugent saved the day. Nugent enjoys “machine-gunning hogs,” as he expressed it. “Pigs turn me on.” Armed with a helicopter and a machine gun he flew over a range spraying a wide arc of bullets down upon on the ground. In a swooping rain of firepower, he killed 455 of the varmints. He had quite a good time, apparently, since he conducted the hunt live on SiriusXM, and dedicated the kill to Bill Maher and “other animal rights freaks.”

It should be noted that there is a law in Texas against aerial sport hunting, but in an efficient economy of public-private exchange, Nugent’s sortie was not considered “sport-hunting,” but rather population control. It’s a view that he and that other happy hunter Donald Trump Jr. share. As does their friend Joe Arpaio, newly pardoned by Trump and newly announced candidate for Senator from Arizona. In 2011, then-Sheriff Joe, in his endless hunt for migrant laborers, launched what he has called an “air posse.” As the word “posse” implies, it was made up of 30 private planes, staffed by “citizen vigilantes and deputies from human smuggling and drug enforcement units,” armed with M-16s and a .50-caliber machine gun. According to Arpaio, “We’re going to use our automatic weapons if we have to, and I’m tired of my deputies having to chase these people and I’m sure the air posse will be able to spot these guys running as they constantly do from us.”

Kafka once observed that “A myth becomes true and effective by daily use, otherwise it only remains a bewildering play of fantasy. For that reason, every myth is bound up with the practical exercise of a rite.” The rite of hunting reminds us that without the Great White Hunter’s money, there’s not much else to Africa. Without a little culling of the herds, feral bulls will ravage everything in sight.

As the wise man said: Myth is always bound up with the practical exercise of a rite.


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Roy Moore Isn’t the Only One Who Thinks Dating Kids Is Fine

Just ask their parents first.

by Patricia J. Williams, published in The Nation Magazine, December 15, 2015

In an eyebrow-raising interview with Fox News host Sean Hannity, the soon-to-be-defeated Alabama senatorial candidate Roy Moore—accused of molesting a 14-year-old when he was in his 30s, and of pursuing and harassing at least eight other teenagers while a district attorney—stated that he couldn’t remember dating teenagers at all… but that if he had, he would certainly have asked their parents first.

The allegations were greeted with a collective ho-hum by many Alabamians. “It was different back then,” some have shrugged, as though that made it more acceptable. But this is patently not true: Let us not forget that in the 1950s, America and the world condemned Jerry Lee Lewis, then 22 and divorced twice, when he married his 13-year-old cousin. It was wrong then, and it is just as wrong today.

And so one must be concerned that there is a larger problem here than merely Roy Moore. Indeed, in one astonishing interview on MSNBC, Moore’s attorney, Trenton Garmon, appealed to some sort of broad, even global, social consensus, stating that “Culturally speaking, there are differences…. In other countries, there’s arrangements through parents for what we would refer to as consensual marriages.”

The sad truth is that the United States tolerates a surprisingly high rate of child marriage for an industrialized nation. Although the age of consent to marry is pretty uniformly 18 across most of the country, many states allow exceptions, such as in instances of pregnancy or parental consent. As a result, within the past 15 years, at least 207,000 children have gotten married in the United States. Of that number, 87 percent were girls, and only 14 percent were married to other minors. More than 1,000 of those children were 14 or under, including three 10-year-olds.

Committing a crime like statutory rape against a minor is, in the jurisprudence of most modern nations, a violation of public safety and community health. In denying children the capacity to consent, we collectively recognize the particular vulnerability of the very young. Their cognitive systems are not at the same level as adults’, and their executive function is not fully developed. We don’t let them sign contracts and are more forgiving of their follies.

We do this, or ought to, as a matter of human rights. The Declaration of the Rights of the Child, which mandates the protection of children against all forms of exploitation, was endorsed by the United Nations in 1959 and adopted as an international convention in 1989. Madeleine Albright, then our UN ambassador, signed it in 1995, but Congress never ratified the convention. The reason should be very familiar to Southerners like Moore: states’ rights, as well as a purported interference with parental rights over children.

The latter is no doubt why Moore’s first line of defense was that, if parents had given him “permission,” there couldn’t be a problem. This way of thinking is not unique. During a debate about requiring children to be vaccinated before entering public schools, Kentucky Senator Rand Paul asserted: “The state doesn’t own your children. Parents own the children, and it is an issue of freedom.”

One way of understanding parental “ownership” is that it privatizes a public or constitutional problem. Resolving matters that infringe upon the autonomy of another person, even one’s child, by private mechanisms vests a disproportionate, even whimsical amount of control in parents. That tension, between the public interest in protecting children and the freedom of parents to raise their families as they see fit, is often tested in both law and politics—for example, the “consent” given by some parents allowing their children to be paddled by schoolteachers; or withholding consent for a blood transfusion on religious grounds, risking a child’s health; or whatever interest is supposedly served when a parent grants permission for a 10-year-old girl to marry a 31-year-old man, as happened in Tennessee in 2001.

It’s a miscarriage of justice when parents are allowed to compromise the well-being of their children. And yet it is perhaps not surprising that such marriages of very young girls to older men are more likely to occur within contexts of economic distress. Says Dr. Nicholas Syrett, author of American Child Bride: A History of Minors and Marriage in the United States, “This is a rural phenomenon, and it is a phenomenon of poverty.”

In this sense, it is akin in structure to the nondisclosure agreements that have protected men, like Bill O’Reilly and Harvey Weinstein, who harass or rape their employees: a private contract used as a shield against the collective or public sanction of criminal law. But one shouldn’t be able to buy one’s way out of such public arrangements. Contract law must never be a cover for licentiousness. Such corruption essentially buys and sells—traffics, in other words—the larger obligations of civic regard and human dignity.

The day before the election, I thought of what Doug Jones—the next senator of Alabama—said: “Men who hurt little girls should go to jail and not the United States Senate.” It was a double-edged allusion to the fact that Jones was also the prosecutor who successfully convicted two Klan members of bombing the Birmingham church where four little black girls were killed in 1963.

In the end, I was reminded once again of a story that continually haunts me. In his book Race, the great Studs Terkel interviewed a white woman named June. As a child, she had been sexually assaulted repeatedly by her father and an uncle; June told her mother several times but was never believed. One day, she was with her family in a department store when her grandmother saw a black man going about his own business on the other side of the aisles. June’s grandmother and mother gathered the child close, worried that this man would accost her in a state of rapacious desire. June said that was when she realized something quite crazy was going on: Her family had projected all of their fears onto that dark and distant stranger, yet they couldn’t grasp that she was being molested right beneath their noses, in the supposed sanctity of home.

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Memory, Mask, Illusion

by Patricia J. Williams

Published in The Nation Magazine, October 26, 2017

It is a tribute to the strange unreality of our time that among the children’s Halloween outfits being sold online, there was this: an Anne Frank costume. “100% polyester,” read the product description. “Easy to put on and take off. Visits to the toilet made easy thanks to Velcro fastening.”

“All the kids love it,” another blurb promised. “This outfit can be worn for many different occasions such as World War times, Evacuee times and also as a street urchin.” Happily, the pushback was immediate, strong, and condemnatory enough that the costume’s name was changed. It is now being sold as a “World War II Evacuee…Fancy Dress Costume [for] Girls.”

The thought of children dressing “up” as Anne Frank to trick-or-treat as part of the Christian celebration of All Hallows Eve is surely bizarre enough. Yet I suppose it isn’t any more shocking than the proliferation of dead-Trayvon-Martin costumes that proliferated a few years back, or the recurring phenomenon of fraternity blackface parties, or the odd use of tiki torches to symbolize the white-hot flames of neo-Nazi power. To be fair, some of these masquerades are concocted for supposedly educational purposes, such as a Georgia middle school’s Civil War Dress-Up Day (guess who gets to be a plantation owner, who a slave), or the recent documentary on Britain’s Channel 4, My Week as a Muslim, in which a “frightened” white woman dons a hijab and brown makeup in order to “experience” racism and discover “why they live like that.”

There is a fiercely reiterated colonialism in these little morality plays, something habitual about this leaping out of our lives to become someone else. I wonder, too, if there isn’t a peculiar kind of trauma hiding in plain sight in these reenactments, this desire to “pass” as something we are not, to blend in even as we perform otherness, whether exoticizing or demonizing. It is curious the degree to which we so easily assume we can walk in the moccasins of another by literally buying the shirt off the back of that other (as well as those absolutely darling hand-stitched moccasins). I don’t wish to rain on anyone’s parade; I believe that the rituals of role reversal can serve important psychic and cultural functions. But when we have no consciousness of the narratives we are performing, then I worry that it becomes indistinguishable from living a lie.

I am not alone in worrying about the prevalence of public lying right now. Dissembling is so widespread that we seem ensnared by the proleptic expectation that nothing is ever as it seems. Consider the irresistibly surreal assertions of one Joe Vargas, a manufacturer of hemp syrup. In a tweet that went viral, he maintained that Melania Trump—as seen in a photo taken of the first couple touring a Secret Service training center in Maryland—was not really Melania Trump. The Twitterverse went wild, applying biometrics to measure her height, her nose, the jib of her jaw. Some even pointed to what appeared to be split ends on the alleged body double’s alleged wig: The real Melania would never have split ends! (If only that laser scope of surveillance were applied to the rest of our 
political world.)

Perhaps it was the very assertion that there is such a thing as hemp syrup that beguiled us down the fairy-tale path toward the lure of impersonation. I found myself yearning for the big reveal: Syrup Salesman Uncovers Body-Snatching Aliens Inhabiting the White House.

It would explain so much.

As we approach the one-year mark of the Trump presidency, I cannot shake the sense that we have well and truly entered Lewis Carroll’s alternative universe on the other side of the looking glass. With every 3 am tweet that may or may not be entered into the National Archives, it feels as though we are conversing about a United States that exists only as a figment of the Red King’s dreams. As Tweedledum explained it to Alice with such eloquence: “If that there King was to wake, you’d go out—bang!—like a candle!”

Even as I write, the news is heavy with mourning and confusion, vengeance and ventriloquism; nothing is what it purports to be. Facebook and Twitter are said to have provided a platform for the Russian government to create an unholy host of “fake Americans” whose viral messaging, it was hoped, would influence our elections. According to The New York Times, the “phony promoters” of one of those sites, DCLeaks, “were in the vanguard of a cyberarmy of counterfeit Facebook and Twitter accounts, a legion of Russian-controlled impostors whose operations are still being unraveled.”

Phoniness defines us now; all is smoke and mirrors and very bad magic. For proof, we have only to consider the stream of nonsense, misrepresentation, and outright lies that issues daily from the president of the United States: Prior presidents never called the relatives of dead service members. The Chinese created the concept of global warming. Barack Obama’s birth certificate is a forgery. Inoculation causes autism. No one has done more for people with disabilities than Donald Trump. No one has more respect for women than Donald Trump.

And the moon is made of green cheese.

I believe that we are experiencing a concerted and intentional assault upon our collective memory. If “Never again” was the phrase that until recently conveyed our refusal to forget the horrors of the Holocaust, we have now entered an age guided by a new imperative: “Never remember.” Beneath the weight of such corruption, someone passing as Melania Trump (bewigged with split ends or not) frankly seems less peculiar than her husband’s dressing up as president. And as for Anne Frank? Her memory has been diminished to a “blue dress with peter pan collar. Brown saddle bag and green beret complete the look. Ideal for indoor events.”

Tweedledee put it best: “Contrariwise, if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.”

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Mourning in America: Protest, Prayer, Treason…

by Patricia J. Williams

Published in The Nation Magazine, October 6, 2017,

President Trump has been busily tweeting that there oughta be a rule: “The NFL has all sorts of rules and regulations. The only way out for them is to set a rule that you can’t kneel during our National Anthem!”

This was, of course, just one of his many forays in response to the recent league-wide protest begun by Colin Kaepernick’s kneeling during the anthem to protest inequitable and excessive instances of state force. Yet it seems not to matter what those who are kneeling say their action meant: “We chose to kneel because it’s a respectful gesture,” wrote San Francisco 49ers safety Eric Reid in The New York Times of his and Kaepernick’s decision. “I remember thinking our posture was like a flag flown at half-mast to mark a tragedy.”

No matter: To Donald Trump, kneeling in sorrow is both a sign of disrespect for the rules of the game and a desecration of the American flag. If Trump were just some random armchair grouch, that wouldn’t be so worrisome. But he is not a private citizen; he’s our president, and everything he says carries the weight of that office.

There are at least two grave legal implications to what the president has been urging—one of private law, the other constitutional.

The first concern is that executive power is being used to interfere in contract relations between private parties. Yes, rich owners and their rich celebrity employees, but still: private parties. Trump’s tweeted injunction, moreover, was deployed by a head of state against citizens whose political views he doesn’t like. This resembles the sort of pressure applied by the House Un-American Activities Committee and its Senate counterpart, the Permanent Subcommittee on Investigations, which was chaired by Senator Joseph McCarthy (and whose lead counsel, let it not be forgotten, was Trump’s mentor, Roy Cohn). At least 300 members of the motion-picture industry were blacklisted as a result of that politically motivated purge. Few ever recovered their careers.

Such heavy-handed state influence has a long history of legitimizing discrimination. After all, one shouldn’t have to give up basic civil rights in deference to a service or employment contract. A contractor who fires someone simply for being a Democrat or a Republican, for being gay or a woman—these are all situations that may trigger judicial scrutiny. By the same token, contractors who discriminate unfairly among their customers may trigger the same kind of scrutiny. This latter point will be adjudicated by the Supreme Court in its current term, in a complaint brought before the Court by Jack Phillips, a Colorado baker. Backed by Trump’s Justice Department, Phillips maintains that his religious beliefs prevent him from making wedding cakes for gay couples. Yet permitting him to opt out of antidiscrimination laws would ultimately undermine their application everywhere—department stores, hotels, restaurants, florists, planes, trains, and buses. The long-standing norm of fair and equitable public accommodation would be rolled back to the era of Jim and Jane Crow. As Louise Melling of the ACLU argues, “No bakery has to sell wedding cakes. But if it chooses to sell wedding cakes it can’t turn away some customers because of who they are.” Similarly, terminating the employment of professional athletes for expressing a view that has nothing to do with their job may be construed as a form of discrimination against “who they are.”

The second concern is a matter of constitutional rights. Trump has repeatedly equated “taking a knee” with desecration of the American flag. This is quite a conceptual leap, but it seems to be one that many of his supporters have also made. Trump has further warned that desecrating the flag must have “consequences—perhaps loss of citizenship or year in jail!” Of course, the Supreme Court has ruled more than once that disrespecting or outright destroying the flag isn’t a punishable offense—and expatriation has been deemed “cruel and unusual punishment” even for wartime desertion. It is very settled jurisprudence that, under the First, Eighth, and Fourteenth Amendments, a citizen cannot be alienated without his or her clear and voluntary renunciation of that citizenship. Period.

And yet… President Trump has suggested all sorts of wild things that once seemed unimaginable but that have now or might one day come to pass. So it’s worth thinking about this notion of revoking citizenship for peaceful political protest. After all, the concept of birthright citizenship has been present since the founding of the Republic. Slavery presented a conspicuous exception, and the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford denied citizenship to any African American, whether slave or free. The 14th Amendment was passed after the Civil War to remedy that constitutional lacuna, and since then American jurisprudence has resisted all efforts to deny certain groups of people citizenship rights if they were born here. Recently, however, Republicans have moved to rewrite or revoke the 14th Amendment in order to deny birthright citizenship to so-called “anchor babies.”

I worry that Trump has even linked taking a knee to the threat of physical danger, speculating that many team owners joined in the league-wide manifestations of dissent because they were “afraid of their players.” Moreover, I cannot easily disaggregate Trump’s unfounded sense of a threatened ownership class from the far right’s conviction that Black Lives Matter should be classified as a “terrorist” organization. It would be ironic if protests against the use of excessive force by police were used to justify expatriating people or banning political movements for being “violent.”

If Trump is right that “most people agree” with him that NFL owners are cowering and kowtowing to the bullying of big black men, then, dear reader, we need to ponder that insinuation with more apprehension and less complacency than that with which the very possibility of Trump’s election was so laughingly dismissed.


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