August 2, 2021
From Nonsite
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The birther conspiracies that once shocked the nation have by now become all too predictable.1 When John Eastman, a Chapman University law professor and former law clerk to Clarence Thomas, took to Newsweek in August 2020 to promote a conspiracy theory then circulating on social media that Kamala Harris is an “anchor baby” who “cannot by constitutional law become President,” constitutional scholars across the country were quick to dismiss his legal argument.2 At Georgetown, they called it “racist nonsense”; at Berkeley, “truly silly”; and at Harvard, “total B.S.”3 As evidence, all quoted the birthright citizenship clause of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.4

On the one hand, it’s obviously disingenuous for Newsweek’s editorial board to claim that Eastman’s op-ed was simply “intended to explore a minority legal argument,” and not to “spark or take part in the racist lie of Birtherism.” On the other hand, there’s also something disingenuous about constitutional scholars trotting out the Fourteenth Amendment as if it were an automatic rebuttal to Eastman’s “racist lie.” In the United States, the question of who gets to count as a “natural-born citizen” has never been a self-evident truth. On the contrary, our notion of birthright citizenship has always been predicated on a fundamental logic of racial exclusion.

This claim might sound counterintuitive, given that the purpose of the Fourteenth Amendment was to expand the nation’s notion of citizenship by bringing formerly enslaved people into the fold. Previously, in the 1857 decision Dred Scott v. Sandford, the U.S. Supreme Court had notoriously declared “that a person of African descent cannot be a citizen of the United States,” regardless of whether they were “born in this country” or not.5 Even after the end of the Civil War, then, the battle over citizenship waged on. My account shows why it all came down to one fundamental question: did Americanness emerge jus soli (from the soil) or jus sanguinis (from the blood)? Another way of putting this is that while the war between the states was obviously a crisis for the country, the subsequent struggle between jus soli and jus sanguinis was a crisis for the nation-state as such. Without a coherent account of the distinction between citizen and noncitizen, the United States risked losing the sense of boundedness it needed to justify its own sovereignty.

The central argument of this essay will be that it was American literature, not American law, that defined who gets to count as “born American” in this country. Specifically, dialect literature—literature written in phonetically transcribed regional accents—managed to link American belonging to the land itself. American law could not help but fail at this task, because even as the framers of the Fourteenth Amendment moved to grant equal protections to “all persons born” on American soil, they also continued to rely on “excluding Indians not taxed.”6 Baked into the Fourteenth Amendment was the notion that Native Americans could never count as native-born Americans, a paradox that dated back to the colonial origins of the Constitution itself. In the United States, birthright citizenship required taking a legal precedent from the British common law and applying it on stolen tribal land, where Natives whose ancestry dated back generations could never count as citizens, but settlers who had crossed an ocean to get there could raise their children as “born Americans.”

Thus even as the Fourteenth Amendment purported to end all racial requirements for citizenship, Native exclusion allowed the blood logic of race to seep back into the debate. During floor debate on the Amendment, one senator objected that “we ought to exclude others besides Indians not taxed,” because those who “pour in their millions upon our [borders] in a very short time” might “obtain the political power of the State, and wield it, perhaps, to [our] exclusion.” He was referring to the Chinese, who were claimed to be “of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies” than white Americans of the same “blood and lineage.”7 It was the blood logic of jus sanguinis all over again, only transferred from the “African” to the “Mongol race.”8 According to an 1877 Joint Special Committee to Congress, this was a “race [so] alien in all its tendencies” that “to admit these vast numbers of aliens to citizenship and the ballot would practically destroy republican institutions.”9 Indeed, the Page Act (1875), Chinese Exclusion Act (1882), and Geary Act (1892) would soon move to shut down Chinese immigration entirely, proving just how easily American jurisprudence could revert to the idea that rights should be restricted by race (as would be further demonstrated with the emergence of Jim Crow legislation in the 1890s).

Given that this was also the era of legal formalism, which held that the legitimacy of the law derived from its flawless consistency, it is remarkable how little consistency the courts showed in applying “equal protection” to “all persons born” on American soil.10 Not until thirty years after the Fourteenth Amendment would the Supreme Court affirm, in United States v. Wong Kim Ark (1898), that native birth did, in fact, apply to “every race and color,” “persons of the Chinese race” included.11 Even then, the Court only acted as it did because there was no way to “refuse to give full effect to the peremptory and explicit language of the fourteenth amendment” that would not simultaneously “deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”12 In other words, the Court’s decision in Wong Kim Ark was motivated less by a new commitment to Chinese inclusion than by a renewed commitment to Native exclusion: as always, the core concern was protecting the rights of the nation’s European settlers at all costs.

For far-right legal scholar Eastman, it is precisely the law’s commitment to Native exclusion that leads him to claim that “mere birth on U.S. soil” should not be considered a guarantee of “automatic citizenship.” In a 2019 law review essay, Eastman argues that even if Wong Kim Ark did demonstrate that a Chinese child born in San Francisco to “subjects of the Emperor of China” should be accounted a citizen by birth (a claim Eastman naturally disputes), another case from the same era, Elk v. Wilkins (1884), demonstrates rather the opposite: that a child “born a member of one of the Indian tribes” should not be accounted a citizen, even if his birthplace is “physically present within our borders.”13 There are, of course, all kinds of objections we might raise about Eastman’s account of legal history (Elk v. Wilkins was rendered irrelevant by the Indian Citizenship Act of 1924, for instance). Yet it is harder to counter Eastman’s conclusion that America’s legal history “tells us nothing about whether, or the extent to which, the principles of the Declaration repudiated the common law of jus soli.”14 As legal theorist Lawrence Solum has insisted, because the Constitution’s notion of a “natural born citizen” was arguably a “paraphrase” of the common law’s notion of a “natural born subject,” the “original meaning of the natural born citizen clause is subject to an irreducible ambiguity” that persists well into the present.15 Indeed, as cultural historian Carrie Hyde has argued, the “definitional poverty” of citizenship in these days of the early Republic led to an “unregulated,” “inconsistent,” and “contradictory” account of a “term-turned-concept whose meaning has never been a self-evident truth.”16

In short, those who try to dismiss Eastman’s legal argument out of hand as “racist nonsense” are missing the larger problem that Birtherism lays bare: American law has never truly succeeded in extricating American belonging from the question of “race and color.” On the contrary, the fact that Chinese exclusion has made such a dramatic comeback during the recent COVID-19 pandemic demonstrates all too clearly the extent to which jus sanguinis still rules the national imaginary.17 My basic argument will be that the reason that the legal battle over birthright citizenship will never be laid to rest is because the logic of jus soli lies fundamentally beyond the power of the law to articulate. In the New World, implementing birthright citizenship on Native territory required obscuring the fact that nobody descended from British ancestors could properly be said to be “of the soil” at all. The Fourteenth Amendment could not help but fail to overturn the logic of jus sanguinis, because a nation founded through the expropriation of tribal lands could not sustain itself without some measure of blood logic. Constituting America was the prerogative of its settlers, and those settlers started from the premise that there were some within the state’s literal borders that it nevertheless “ought to exclude” (“Indians not taxed”). This established a precedent for excluding others claimed to have “no allegiance” to the state, whether it came to the “Mongol” ban of 1882 or the Muslim ban of 2017.18

Astonishingly enough, under these fraught conditions, it is American literature, not American law, that manages to put forth the clearest account what it really means to be “born” American. Only literature boasts an imaginative apparatus capable of holding contradiction in suspension, which means that only in the literary realm can the language of the soil manage to spell inclusion and exclusion at the same time. It is not at all a coincidence that during the same thirty-year span between the Fourteenth Amendment of 1868 and the Wong Kim Ark decision of 1898, American literature became obsessed with precisely the question of what it meant for literature to be “native to the soil.”19 These were the words of influential Atlantic editor William Dean Howells, who argued that only “native writers,” “native in the vernacular,” were capable of capturing the “carefully distinguished local accents” that “expressed the national temperament, character, and manner with a fulness not surpassed by contemporary fiction in the case of any other people.”20 He was referring to dialect, or phonetically transcribed speech, which scholars argue became “so constituent a part of American fiction immediately after the Civil War” that it should be considered the era’s “dominant form of literary production.”21 At precisely the moment when American law was struggling to disaggregate native birth from Native rights, American literature succeeded in giving the country its “native” tongue by transforming the language of the colonizer into a distinctively homegrown American idiom.

Critics have more commonly explained dialect’s sudden explosion in popularity as a means of working through the most deep-seated divides of the postwar era: North vs. South and Black vs. white. Eric Lott, for instance, argues that a work like Mark Twain’s Huckleberry Finn deploys the “ventriloquized dialect” of “blackface minstrelsy” to negotiate between the “antiracist” ideals of the post-slavery era, on the one hand, and the country’s persistent racial prejudices, on the other.22 Michael North, meanwhile, argues that because “the dialect movement was almost exclusively a matter of white mimicry,” the same accents which offered white authors a certain freedom of expression laid a trap for Black authors by limiting them to an “antebellum way of life.”23 What I am arguing, by contrast, is that the dialect movement had less to do with reenacting the days of slavery than relitigating its end, as in the moment when millions of former slaves were suddenly designated “born American” citizens. Of course, there is no denying that dialect also served to reinforce the country’s racial hierarchies; the entire appeal of the genre, after all, lay in the surprising and often amusing differences between dominant and subordinate forms of speech. Yet as Twain himself insisted, the dialect movement also aimed to make every accent in America—Black and white—into a version of the voice of the nation.24

Does the native novelist try to generalize the nation? No, he lays plainly before you the ways and speech and life of a few people grouped in a certain place—his own place—and that is one book. In time, he and his brethren will report to you the life and the people of the whole nation—the life of a group in a New England village; in a New York village; in a Texan village; in an Oregon village; in villages in fifty States and Territories; then the farm-life in fifty States and Territories; a hundred patches of life and groups of people in a dozen widely separated cities. And the Indians will be attended to; and the cowboys; and the gold and silver miners; and the negroes; and the Idiots and Congressmen. … And when a thousand able novels have been written, there you have the soul of the people, the life of the people, the speech of the people; and not anywhere else can these be had.25

As soon as we see the dialect movement this way—as the literary equivalent of E pluribus unum “in fifty States and Territories”—we can appreciate how dialect was almost uniquely well-suited to articulate the uniquely American paradox of birthright citizenship. On the one hand, dialect reinforced the hierarchical logic of jus sanguinis every time it pointed up the peculiarities of the country’s “lower” orders of speech. On the other hand, dialect legitimated the universal logic of jus soli every time it produced a new local accent that could stand in as a metonym for the country as a whole. American literature did what American law could not: it reconciled the contradictions of birthright citizenship by enfolding jus sanguinis directly into the expression of jus soli. In other words, dialect was more than a national genre; it was envisioned, whether convincingly or not, as a means of turning disparate populations into one cohesive nation.

This is why we find Howells, one of dialect’s greatest champions, making the otherwise bizarre claim that Hawthorne, Emerson, and Poe did not really count as American authors, because it was “only after the Civil War that we really began to have an American literature,” or to be specific, only when “the country began to feel its life in every limb with the coming of peace” and “began to speak in the varying accents of all the different sections—North, East, South, West, and Farthest West.”26 Howells’s personification here figures “the country” as a living, embodied creature with the power to “speak” its “life” directly into language. When Howells adds that the “growth of our literature in Americanism” demands the creation of “East-Side types—Irish, German, negro, and Italian,” his parallel syntax is even more instructive: the “Irish” and the “negro,” instead of facing off across the color line, join hands as equally good emblems of Americanness.27 In other words, while it can be argued that Black dialect served as a metonym for the racially distinctive Black body, in the context of the dialect movement, it could also serve as a metonym for the body of the nation as a whole. By the time of the Harlem Renaissance, writers like Langston Hughes would come to embrace the “common, racy, living, authentic speech of the Negro” (in the words of James Weldon Johnson) as the quintessential mark of “racial individuality” on the page.28 Yet in the context of the dialect movement, “negro” dialect was made to serve as an emblem of nation as much as race. The point of the genre was to take the country’s most ethnic-sounding accents (“Irish, German, negro, and Italian”) and turn them into harmless versions of sounding like an American. In this sense, even the discriminating logic of jus sanguinis (as in the distinction between the “Irish” and the “negro”) could be folded back into the universalizing logic of jus soli (as in the “growth of our literature in Americanism”).

As the birthright of the American writer, dialect served to legitimate the national character of the national canon. As long as authors write in dialect, Howells insisted, there is no need for them to “try to write Americanly”; they can simply “speak true American” like the “born Americans” they are.29 Howells’s friend and protégée Hamlin Garland, meanwhile, claimed that American authors “stand among the corn-fields” and write “as naturally as the grass or corn or flax grows.”30 Whenever writers record the “actual speech of the people of each locality” (74), Garland declares, they capture a “statement of life as indigenous as the plant-growth” (64), a “free flowering of native plants” (60) that proves that the “corn has flowered, and the cotton-boll has broken into speech” (62). It is hard to imagine a more obvious citation of the logic of jus soli: dialect emerges organically from American soil, and in doing so, automatically certifies the Americanness of American literature. All these agricultural metaphors add up to something more than rhetorical flourishes: they literalize the claim that dialect is America’s “indigenous” language, indexically linked to the earth from which it grew. As Garland promises, “each wonderful locality in our Nation of Nations will yet find its native utterance” (71–72). The irony, of course, is that what makes the “native utterance” of this “Nation of Nations” seem “indigenous” is only its difference from England, not its debt to the country’s First Nations. Howells more or less admits this when he summarizes the entire project of American literature as the effort to create an “effect of indigeneity” within a tradition of “English literature” that did “not originate indigenously.”31 Dialect literature may have granted the American canon its independence—its “effect of indigeneity”—but it only did so at the expense of actual indigenous peoples.

Nowhere does this need for Native erasure come through more clearly than in the story Howells credits for having “sounded” the “first note of [the] national concord, or discord,” of the dialect movement: Bret Harte’s “The Luck of Roaring Camp,” which was published in August 1868, barely a month after the Fourteenth Amendment was ratified.32 Although Harte may be an unfamiliar name today, his innovations in dialect inspired many of the writers whose work we do still remember: Mark Twain, for instance, credits Harte with striking “a new and fresh and spirited note” in Western literature, which had until then “only exhibited the literary forms, without really being literature.”33 As Harte himself put it, what made his work so unprecedented was its “dialectical” effort “toward indicating a peculiarly characteristic Western American literature,” one “marked” by the “flavor of the soil.”34 We can see this in “The Luck of Roaring Camp” whenever Harte’s frontiersmen start “a-talking,” or rather, “a-jawin’ at each other just like two cherrybums” (11); each time they exclaim “curse the luck!” (10) or “d—n the cost!” (7) or “the d—d little cuss!” (5), their “dialectical” language serves to authenticate their “peculiarly characteristic Western American” origins on the page. What the Fourteenth Amendment sought to do for American citizenship, in other words, Harte sought to do for the American canon: he wanted to give it a “flavor of the soil” that would mark it as distinctively, characteristically, and incontrovertibly American.

In the story, the rough-and-ready mining town of Roaring Camp experiences a “commotion” when “Cherokee Sal,” the town prostitute (1), goes into labor: “the situation was novel. … a birth was a new thing. … this was the first time that anybody had been introduced ab initio. Hence the excitement” (2). Of course, the conceit of a town that has never before witnessed childbirth makes for a thrilling frontier fantasy, but Roaring Camp also serves as an allegory for a brand-new conception of American citizenship—one emerging, as the story puts it, “ab initio” (from the beginning). The rest of the story follows the fate of this newborn on the frontier of American civilization: will the baby manage to domesticate the “roughs” of Roaring Camp, or will the Wild West prove too much for the delicate infant (3)? At first, the baby’s survival seems “doubtful,” given that its mother, “Cherokee Sal,” dies in childbirth, and “the only other being of Cherokee Sal’s sex and maternal condition in the settlement was an ass” (4). Yet the “criminal” frontiersmen (2), much to their own surprise, respond to the “sharp, querulous cry” of the child with sudden collective action: “The camp rose to its feet as one man” (3)! The same “fugitives from justice” who had once sought the “legal informality” (2) of the frontier now find themselves invoking “a singular mixture of authority and ex officio complacency” (4) as they christen the child “according to the laws of the United States and the State of California” (8). After settling on the name “The Luck” in homage to their own luck striking it rich in the gold rush, they submit to all kinds of “moral and social sanitary laws” on the baby’s behalf, leading to a series of humorous fish-out-of-water anecdotes as they try to adjust to civilized codes of behavior (9).

The town’s collective act of naming—and the unspoken logic behind it, which is that the bastard child is just as likely to be the offspring of any of the men in camp—brings American civilization to the frontier for the first time. Once the frontiersmen acknowledge an “Ingin baby” as their own, even those who had always “looked suspiciously on strangers” agree to “invite one or two decent families to reside there for the sake of The Luck” (12). The baby’s birth connects them with an imagined community beyond their own borders, transforming dubious east coast “strangers” into “decent” American neighbors. The baby’s “querulous cry” calls them into communion with civilization, transforming what had previously been a cacophony of “shouting and yelling, which had gained the camp its infelicitous title” into a series of “whispers” (9) and “melodious utterances” (10) in the camp’s “characteristic” dialect (4). In this context, men with names as American as “Kentuck” (2) speak in the same exact way as those called “French Pete,” “Kanaka Joe” (1), “Cockney Simmons,” or “‘Man-o’-War Jack,’ an English sailor from her Majesty’s Australian colonies” (10). Settlers from all around the globe find a common tongue in the language of the soil, which at once marks them as locals and inscribes them as constituents of a much larger nation.

The only person whose voice is never heard in camp is, appropriately enough, that of “Cherokee Sal,” the “dissolute, abandoned, and irreclaimable” (1) Native woman who is already “sinking fast” before the story even begins (3). She lingers just long enough to beget “The Luck,” and then is said to have “passed out of Roaring Camp, its sin and shame, forever” (4). Harte’s wonderfully ambiguous parenthetical phrase (“its sin and shame”) leaves it unclear whether it is Roaring Camp or “Cherokee Sal” herself that is truly morally culpable. Yet once the frontiersmen declare that they will not tolerate any more women like “Cherokee Sal” in their midst, they are able to reclaim their place in civil society: their “unkind allusion to the defunct mother, harsh as it may seem,” becomes their “first spasm of propriety—the first symptom of the camp’s regeneration” (6–7). In other words, the frontiersmen stake their claim to national belonging by dispossessing the Native woman who preceded them. Indeed, they literally take up residence inside her womb. Her offspring, like her territory, becomes a matter of public jurisdiction: among the frontiersmen, “It was evident that no plan which entailed parting from their new acquisition [the baby] would for a moment be entertained” (6). “Cherokee Sal” is even said to suffer the “primal curse” of Eve, making her story very much a national retelling of Genesis (1). Her conception is what enables the story’s transformative moment of native birth; her expiation is what allows that birth to be reconceptualized as white rather than Native. She grants Roaring Camp precisely the “effect of indigeneity” it needs to secure its place in the national tapestry. As the Native mother dies, the native motherland is born.

In the legal realm, implementing birthright citizenship required obscuring the fact that, in North America, nobody descended from British bloodlines could really be said to be “of the soil” at all. In the literary realm, capturing the “peculiarly characteristic … flavor of the soil,” as Harte set out to do, required obscuring the fact that on the frontier, any version of English had to have come from someplace else (xii). So when Harte’s story says of Cherokee Sal, “Perhaps the less said of her the better,” what Harte needs to remain unsaid ultimately has less to do with her “very sinful” habits (about which he would later insist that “he could really see nothing objectionable” [xiv]) than with the stubborn fact of her existence (1). If America needed the notion of “native birth” to constitute its national citizenry, American literature needed the notion of the “native writer” to constitute its national canon. But in both cases, there was no way to conceive of what it meant to be “native” without explicitly excluding Natives from the imagined community of the nation.

By 1898, when Harte’s worldwide fame drove him to “give some account of the genesis” of “Roaring Camp,” he had become quite explicit that his tale was “conceived” as a parable of Native erasure (xi). Recounting his own “emigration” West, he claims that for “pioneers” like himself, “the promised land itself presented the singular spectacle of a patriarchal Latin race who had been left to themselves, forgotten by the world, for nearly three hundred years” (xvii). In Harte’s account of Westward Expansion, the “forgotten” Natives endure just long enough to personify the “land itself,” and then conveniently vanish from view, leaving behind a “continent almost unexplored” for any settler with “faith, courage, vigor, youth, and capacity for adventure” (xvii). In Harte’s fiction of native birth, Natives only exist to exemplify the concept of indigeneity that the nation needs to liberate itself from England, and then simply perish, making way for the birth of the new nation.

In this context, it makes perfect sense that “The Luck of Roaring Camp” becomes a tragedy not when “Cherokee Sal” dies, but when her baby does. When the frontiersmen lose “the pride, the hope, the joy, The Luck, of Roaring Camp” in an unexpected flash flood, death seems to spread throughout camp like a contagion (13). One frontiersman announces that the baby has drowned—“‘He is dead,’ said one”—and another responds, “‘Dead?’ … ‘Yes, my man, and you are dying too,’” and then promptly passes away himself, still cradling the dead baby in his arms: “‘Dying’ … ‘he’s a-taking me with him’” (13). Like Cherokee Sal, the dying man is said to have “drifted away … forever” (13), marking the end of Roaring Camp’s “golden summer” of “flush times” and “prosperity” (11–12). This makes perfect sense once we remember that the baby’s name, “The Luck,” is a reference to the landscape’s gold deposits, and indeed for every facet of its natural resources. With the baby’s birth, the frontiersmen are “suddenly awakened to the fact that there were beauty and significance” in all those “treasures the woods and hillsides yielded,” from “a cluster of wild honeysuckles” to “a fragment of variegated quartz” (10–11). Yet with his death, they lose this precious connection to the countryside, leaving “little [that] could be done to collect the scattered camp” into any sense of communal belonging within the country as a whole (13). Without their native-born son, the frontiersmen have nothing left to bind them to the earth beneath their feet. Harte’s story turns out to be a cautionary tale about the fate awaiting the nation without the fiction of jus soli to sustain a sense of shared affinity.

That the story, like the baby, is named “The Luck of Roaring Camp” only underscores the sense in which it functions to Americanize all who encounter it: the tale ends with a frontiersman “holding The Luck of Roaring Camp in his arms,” even as the reader finds herself holding the print edition of “The Luck of Roaring Camp” in her hands (13). Indeed, when his 1898 foreword finally gave Harte the chance to “give some account of the genesis” of how his story was “conceived,” he made this analogy explicit, describing in detail the labor pains that were required to bring forth his story, or as he put it, his “little foundling of Californian literature” (xvi). “Like its own hero,” Harte writes, his story “was born with an evil reputation,” “anathematized” as “the offspring of evil” by critics who thought that its publisher’s reputation had “been ruined by its birth” (xv). In other words, the story’s salacious prostitution plotline turned it into a kind of literary bastard, much like the baby it described. Of course, there is something queer about Harte’s literary bastard, in that it is missing not its father but its mother. By casting himself as procreator, Harte is adopting a posture that had long been the province of female authors such as Anne Bradstreet, who would claim to have “given birth” to their pieces as a means of distancing themselves from established artistic convention and proclaiming instead the organic, instinctive, natural quality of their work.

Yet in contrast to Bradstreet, who still thought of England as her motherland (“dear Mother, fairest Queen and best”), Harte evokes motherhood in order to make all that is natural and organic about his story seem perfectly synonymous with American soil.35 In Harte’s version, it is England that represents mere artificial convention, and the American frontier that offers the means of artistic liberation. In defending his literary bastard, Harte insists that he had no choice but to scandalize his readers—whom he characterizes as fans of “English journals” and thus “half foreign in their sympathies”—because his “first efforts toward indicating a peculiarly characteristic Western American literature” were so unlike anything previously found in “New England habits and literary traditions” (xii). Hence why Harte rejects the “New England” publishers that considered his story “so indecent, irreligious, and improper” that they could hardly be “induced to continue its perusal” (xiii), and embraces instead “the publishers of ‘The Atlantic Monthly,’” who alone responded to his story in “the most flattering terms” (xv–xvi). “The Atlantic,” of course, refers to none other than dialect champion William Dean Howells, whose review of “Roaring Camp” reframed the “robust vigor and racy savor of the miners’ vernacular” not as a weakness, but as the story’s greatest strength, one that made Harte a “unique figure in American authorship.”36

As the “mother” of American literature, Harte managed to give the nation its mother tongue. As soon as his dialect “secured a hearing and position throughout the American Union,” it spurred authors all over the country to try transcribing their own version of American speech (xv). The result was a dialect movement so successful that it would forever transform our sense of who does and does not get to count as an American. To return to the example of Huckleberry Finn, Huck himself certainly gets to count, and in a certain sense so does Jim, whose anecdotes provided some of Twain’s most popular material on his lecture circuit around the country; but “Injun Joe” certainly does not, in the sense that he must literally be silenced (by the lethal labyrinths of the natural landscape, no less!) before Huck’s story can properly begin. Of course, the fact that Huck’s story ends with “I reckon I got to light out for the Territory” (as in “Injun Territory”) only further demonstrates that the project of giving voice to the nation comes at the expense of silencing Native peoples.37 By 1917, when dialect writer Hamlin Garland publishes his fictionalized autobiography A Son of the Middle Border, Natives have been so successfully scrubbed from the record that he is able to claim, without a trace of irony, that the country’s “sons of the border” are as “native American as their names indicated”—by which he means that their names derive from the English woodlands and Scottish fortresses of their ancestry (“Dudleys, Elwells, and Griswolds … McEldowneys and McKinleys”) rather than the Algonquin rivers of their upbringing.38 In a perfect encapsulation of the imperialist logic of birthright citizenship in America, the very surnames that might be said to suggest an ancestral British homeland are instead reimagined as indigenous to the American landscape. Garland elides the difference between “native-born” Americans and the First Nations they dispossessed by making “native American,” quite literally, mean white.

Although they may be obscure today, dialect writers like Garland and Harte round out our understanding of all-too-iconic authors like Twain by making it clear that belonging to this country by birth can hardly be considered a race-blind affair. On the contrary, American literature and American citizenship are both predicated on an “effect of indigeneity” that comes at the cost of displacing and dispossessing actual indigenous peoples. Thus to insist, as so many have done, that Kamala Harris should be considered American because she was born in California can never really lay the debate to rest. The Birthright Citizenship Clause was founded on a case of exception—“excluding Indians not taxed”—and so Americans will never have an easy or ready answer to the question of what it actually means to be “born American.” For birther conspiracists like Eastman to exploit this historical paradox in order to cast doubt on Harris—who, as a woman of color, is precisely the kind of person the Fourteenth Amendment was designed to protect—is utterly reprehensible. Yet even if Eastman is completely mistaken about what it takes to be legally recognizable as Vice President, he is, in some bizarre sense, completely right about what it takes to be legally recognizable as American. What Bret Harte and his fiction of native birth teaches us is that when it comes to the question of American belonging, the soil is not the end of the story; it is just the beginning.

Notes

1.&  Special thanks to Walter Benn Michaels, Peter Coviello, and Derek O’Leary for their help working through earlier versions of this argument.
2.&  John C. Eastman, “Some Questions for Kamala Harris About Eligibility (Opinion),” Newsweek, August 12, 2020, https://www.newsweek.com/some-questions-kamala-harris-about-eligibility-opinion-1524483; Bala Thenappan, “Kamala Harris Is Eligible to Serve as President,” FactCheck.org, August 11, 2020, https://www.factcheck.org/2020/08/kamala-harris-is-eligible-to-serve-as-president/.

According to Eastman, it is “erroneous” to “simply assert that Harris is eligible because she was born in Oakland,” because her parents—Indian mother, Jamaican father—were “temporary visitors” and not “permanent residents” at the time. Never mind that both had just earned their doctoral degrees from Berkeley. They “likely” did so on “student visas,” Eastman argued elsewhere, and so, “derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power.” See John Eastman, quoted in “OC Professor Defends Saying Kamala Harris Ineligible for VP, Echoing ‘Birther’ Lie,” Times of San Diego, August 14, 2020, https://timesofsandiego.com/politics/2020/08/14/oc-professor-defends-saying-kamala-harris-ineligible-for-vp-echoing-birther-lie/. In essence, Eastman is arguing that Harris cannot claim birthright citizenship because she falls under the exception for the children of foreign diplomats, solely because her parents happened to be international students at the time.
There’s an added twist to the Harris conspiracy, in that believers insist that “Democrats have worked the whole scenario out” by intentionally setting Harris up to fail her Supreme Court challenge so that the line of succession falls to their secret dark horse candidate, Nancy Pelosi, instead. See Thenappan, “Kamala Harris Is Eligible.” In any case, Eastman’s gambit for notoriety ultimately paid off, in the sense that he replaced Rudy Guliani as Trump’s attorney in the short-lived suit Texas v. Pennslvania, et al., which sought to overturn Joe Biden’s election victory in four key battleground states, and which was summarily dismissed by the U.S. Supreme Court.

3.&  Thenappan, “Kamala Harris Is Eligible”; “Trump stokes ‘birther’ conspiracy theory about Kamala Harris,” BBC News, August 14, 2020, https://www.bbc.com/news/world-us-canada-53774289; Katie Rogers, “Trump Encourages Racist Conspiracy Theory About Kamala Harris,” New York Times, August 13, 2020 (updated January 20, 2021), https://www.nytimes.com/2020/08/13/us/politics/trump-kamala-harris.html.
4.&  U.S. Constitution, amend. 14, sec. 1.
5.&  Justice John McLean writing for the minority opinion in Dred Scott v. Sandford, 60 US 393 (1857).
6.&  Indeed, as Martha Jones argues, as transformative as the Fourteenth Amendment obviously was, it emerged out of an antebellum legal tradition in which “textual expressions of rights existed alongside a view of rights as secured through their performance.” Martha Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge, UK: Cambridge University Press, 2018), 12. Long before the passage of the 1866 Civil Rights Act, free Black Americans “conducted themselves like rights-bearing individuals” in the courts (9), and in doing so “pressed the question of their own status” and “fundamental rights” long before legislators consolidated those rights into law (13). Jones argues that the Fourteenth Amendment should be seen as the capstone, not the commencement, of the story of “race and rights” in America (9). For the purposes of my argument, however, the Fourteenth Amendment marks the beginning of a new set of contestations over the newly strengthened notion of jus soli, one oriented less toward the question of “race and rights” than toward the question of “race and soil.”
8.&  Indeed, Edlie Wong has argued that the 1866 Civil Rights Act was passed at least in part thanks to the logic of “Chinese exclusion,” which held that “black inclusion” was the best means to prevent foreign-born “coolie-slaves” from being able to claim any legal rights whatsoever. Edlie Wong, Racial Reconstruction: Black Inclusion, Chinese Exclusion, and the Fictions of Citizenship (New York and London: New York University Press, 2015), 3, 6.
9.&  Joint Special Committee to Investigate Chinese Immigration, Report of the Joint Special Committee to Investigate Chinese Immigration: February 27, 1877, 44th Cong., 2d sess., 1877, Rep. 680, VII–VIII.
10.&  I am indebted here to Lisa Siraganian’s innovative work on the relationship between race and legal formalism. According to Siraganian, when formalism’s “self-described legal scientists” tried to make the law seem less like a matter of personal biases and more like a matter of objectively-derived principles, it was precisely because they needed a way to justify their unequal application of the Fourteenth Amendment. Specifically, legal formalists made use of the legal precedent that had established both “corporate personhood and African American personhood” as “conceptually entwined” abstract, intangible, disembodied notions, allowing them to consolidate corporate rights and erode African American ones at the same time. In much the same way, I argue, legal formalists made use of the legal precedent that “all persons born” on American soil referred exclusively to the children of European settlers in order to erode the rights not just of Native populations, but of racial minorities of all kinds. Lisa Siraganian, Modernism and the Meaning of Corporate Persons (Oxford, UK: Oxford University Press, 2020), 188, 198.
11.An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication, 39th Cong., 1st sess. (April 9, 1866).
14.&  Eastman, “Wong Kim Ark,” 311.
15.&  Lawrence B. Solum, “Originalism and the Natural Born Citizen Clause” (unpublished manuscript, April 18, 2010), 7, 2. Solum notes that the Constitution is nothing if not insistent on the contradistinction between “subject” and “citizen,” making the phrase “natural born citizen” a “term of art” for which it is impossible to determine a concrete originalist interpretation (6).
16.&  Carrie Hyde, Civic Longing: The Speculative Origins of U.S. Citizenship (Cambridge, MA: Harvard University Press, 2018), 19, 6, 7. For instance, as Hyde notes, some newborns inherited the status of their father (thanks to the doctrine of coverture, which gave husbands property rights over their wives), while others inherited the status of their mother (thanks to the doctrine of partus sequitur ventrum, which gave enslavers property rights over their slaves).
17.&  As soon as Trump began referring to the Coronavirus as the “China virus,” it turned into the #ChinkVirus on Twitter, and those who started with name-calling quickly escalated to beating and stabbing Asian Americans in a surge of anti-Asian hate crimes. The administration’s role in all this was to brag about having “closed down the borders to China,” even though health policy experts testifying to the House Foreign Affairs Committee complained that the measure was pointless: “there’s no restriction on Americans going back and forth.” Yet the fact that the border restrictions had no effect on American citizens was in some sense exactly the point. Much like the original Chinese Exclusion Act was never actually about fighting unemployment, the Chinese travel ban was never actually about fighting disease; it was about pinning the blame on foreigners instead.
18.&  Cowan, Cong. Rec., 2891.
19.&  Interview with William Dean Howells, “War Stops Literature,” in Literature in the Making, ed. Joyce Kilmer (New York and London: Harper & Brothers, 1917), 10.
20.&  Howells, “War Stops Literature,” 10; William Dean Howells, “Life and Letters,” Harpers Weekly 39 (June 8, 1895): 532–33.
21.&  William P. Trent, Cambridge History of American Literature (New York: G.P. Putnam’s Sons, 1917–21), 360; Richard Brodhead, “The American Literary Field, 1860–1890,” in The Cambridge History of American Literature, ed. Sacvan Bercovitch (Cambridge: Cambridge University Press, 2005), 3:9–62.
22.&  Eric Lott, Love and Theft: Blackface Minstrelsy and the American Working Class (Oxford: Oxford University Press, 2013), 19, 32.
23.&  Michael North, The Dialect of Modernism: Race, Language, and Twentieth-Century Literature (New York and Oxford: Oxford University Press, 1998), 22–23.
24.&  For more on this argument, see Mika Turim-Nygren, “Twain’s Modernism: The Death of Speech in Huckleberry Finn as the Birth of a New Aesthetic,” J19: The Journal of Nineteenth-Century Americanists 8, no. 1 (Spring 2020): 123–45.
25.&  Mark Twain, “What Paul Bourget Thinks of Us,” The North American Review 160, no. 458 (1895): 51–52; reprinted in Mark Twain, How to Tell a Story, and Other Essays (New York and London: Harper & Brothers Publishers, 1898), 188–89.
26.&  William Dean Howells, “American Literary Centres,” in Literature and Life (New York and London: Harper & Brothers, 1902), 175.
27.&  Howells, “American Literary Centres,” 177–78.
28.&  James Weldon Johnson, “Preface,” in The Book of American Negro Poetry (New York: Harcourt, Brace and Company, 1931), reissued (New York: Houghton Mifflin Harcourt, 1983), 4, 166; Langston Hughes, “The Negro Artist and the Racial Mountain” (1926), reprinted in The Portable Harlem Renaissance Reader, ed. David Levering Lewis (New York: Penguin Books, 1995), 93.
29.&  W.D. Howells, Criticism and Fiction (New York: Harper and Brothers, 1891), 137.
30.&  Hamlin Garland, Crumbling Idols (Chicago and Cambridge: Stone and Kimball, 1894), 59. Hereafter cited in the text followed by the page number.
31.&  Howells, “Some Anomalies of the Short Story,” in Literature and Life, 113.
32.&  Howells, “American Literary Centers,” 175–76.
33.&  Mark Twain, Autobiography of Mark Twain, ed. Benjamin Griffin and Harriet Elinor Smith (Berkeley, Los Angeles, London: University of California Press, 2013), 2:119. Twain and Harte would go on to co-write Ah Sin (1877), a notorious yellowface play based on Harte’s poem “The Heathen Chinese.” Although their collaboration was such a flop that it led to a decades-long feud, at the beginning, Twain clearly thought Harte’s dialect worth emulating.
34.&  Bret Harte, “The Luck of Roaring Camp,” Overland Monthly (August 1868), reprinted in The Luck of Roaring Camp and Other Tales (Boston and New York: Houghton Mifflin Company, 1906), xi–xii. Hereafter cited in the text followed by the page number.
35.&  Anne Bradstreet, “A Dialogue between Old England and New, concerning their present troubles” (1642), in The Tenth Muse Lately Sprung Up in America (London: Stephen Bowtell, Popes Head-Alley, 1650), 180.
36.&  William Dean Howells, “Reviews and Literary Notices: The Luck of Roaring Camp,” Atlantic Monthly 25 (May 1870): 633–35.
37.&  Mark Twain, The Adventures of Huckleberry Finn (Tom Sawyer’s Comrade) (1884), reissued (New York: Harper & Brothers, 1896), 371, 388.
38.&  Hamlin Garland, A Son of the Middle Border (New York: The Macmillan Company, 1917), 21.



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