We Need a New American Holiday Commemorating the 14th Amendment

It’s that time of year again. Summer with its pleasures and also its anxieties—including newer fears that are already becoming customary—what will burn this year? What will flood? It’s summer again, and in these here not-so-United States summer doesn’t really burst open until July, and our singular, foundational holiday—though ever increasingly we don’t know exactly what it is that we’re all celebrating. If we’re certain of anything at all, it’s that we’re not commemorating the same things on the Fourth of July. Meanwhile some of us out here in the dry West wonder if our towns will be smoldering ruins by the time the season’s ended, while in the wetter part of the nation, others increasingly wonder if they’ll be underwater, or simply washed away, come fall.

These environmental fears, with their apocalyptic undertones, are hard to separate from the holy-war style intensity of our political strife. Those of us who aren’t refusing to turn from the threats of climate change into denial and conspiracy theory are, in effect, also turning collectively away, as our nation proves itself again and again incapable of accomplishing anything near the scale of action that is called for, in terms of economic and societal transformation. It has become painfully apparent that this instrument, the United States of America, is increasingly incapable of meeting any kind of major challenge head on.

There are many reasons for this, but among them is a collective incapacity to undertake meaningful, pragmatic discussions about the proper uses of the sovereign power of the nation, and about the proper places and uses of the different levels of governing power—federal, state, local and popular—that traverse the country and sustain it as a body. All these conversations will be needed; climate change and its immediate and long term effects (fire, flood, drought, etc.) require of us a mix of federal, state, local and non-governmental approaches.

There are plenty of causes for the failures of Americans to come to any consensus about the proper uses of government. These include concerted and often successful efforts on the part of capital to undermine national and local sovereignty or bypass it altogether—see Facebook’s recent announcement of its plan to establish its own global currency and banking system. But beyond the efforts of corporate power, and perhaps underlying its success, has been another readily exploitable issue. America has continually failed to reckon with the trauma of its history and the gravitational power that that history has on our lives and our institutions, as it contorts us in our efforts to grow toward something that might be termed a collective future.

The last three years I have been involved with a story, a western tale, that has seemed like a kind of allegory of this collective condition—especially in relation to history. My time at the so-called Oregon standoff of 2016, and the years I’ve spent in the various afterworlds of the story, have served to further convince me, as others have been long convinced, that our relationship to our past must change in order for us to develop any robust capacity to act nationally in the present. The “standoff” came at the very opening of the year that announced what seems to be our new political era. It was a truly bizarre event, replete with comedy, tragedy, lots of guns, and a full blown “media circus” in one of the most isolated rural areas in the continental United States.

The drama began on Jan. 2, 2016, when patriot movement devotees responding to the New Year’s Day social media call of anti-federal land activist Ammon Bundy occupied the Malheur National Wildlife Refuge in the name of restoring the sovereign rule of the people. Many of Bundy’s “dear friends,” as he’d called them in his video missive, were armed and happy to speak of it, or to demonstrate the fact, appearing in picturesque photo compositions often featuring the wide-open high desert landscape, the snow-bound sage, and the newly ominous figure of the old refuge fire tower, converted now into a different sort of watch post. For a time much of the nation seemed transfixed by all the images, as the extreme anti-federal rhetoric coming from Bundy and the rest of the earnest leadership of the occupation was replayed on screen after screen and analyzed for signs of what it might mean for what was already shaping up to be a strange election year.

Here was a group of armed white men, amped up on nostalgia for the era of the armed white men who’d wrested the tribes’ land from them in the first place.

It was all confusing, but one thing was clear: this was a populist insurrection, a potentially serious one. Harney County, Oregon, where the occupation was taking place, has a population of 7,000—while boasting a square mileage approximate to that of Massachusetts. The size and remoteness of the locale, coupled with the power of the occupiers’ social media network, instantly allowed Bundy and friends to mount a credible challenge to the sovereignty of federal and local government in the region. The group called on local folks to reconstitute in a new body-politic and take control of federal public land—the vast swaths of dry pine forest, sagebrush steppe and desert marshlands in the county that are administered by federal agencies. At the same time, these extreme new tactics were being couched in familiar language: Reaganite talk of federal government overreach, and of the correct domains of federal, local and state power, as well as more recent culture war phrasings about the death of rural America at the hands of urban elites.

As a resident of the rural intermountain West, and someone who uses federal public land on an almost daily basis, I was immediately absorbed in the story. But it wasn’t looking at the purely contemporary issues that turned my interest into the degree of obsession necessary to write a book on the occupation; instead it was the undead presence of so much difficult American history in the conflict that drew me to Oregon. While the histories of the revolutionary and constitutional era were referenced constantly by the occupiers—who maintained that federal public land is “unconstitutional”— it was another era that the occupation just as often brought to my mind: the era of Reconstruction and its failure and abandonment, and of a doubling down on settlement and white priority in the lands of the arid west.

Seen from a historical perspective, the Malheur occupation was a kind of reenactment of this period, a Wild West show staged by and for the internet. It made a place, virtual and real, where contemporary feelings of “left-behindness,” largely male and white, could be channeled into old Manifest Destiny versions of the American Dream; it also was all happening on what turned out to be especially sacred Native land. Local leaders from the Burns Paiute tribe emerged quickly as some of the main local opponents to occupier plans to somehow restart the economies of the rural West by getting federal public land under local and/or private control. While for the occupiers the issue was one of federal versus local and popular sovereignty, from the perspective articulated by the tribe, it looked different—and terribly familiar.

Here was a group of armed white men, amped up on nostalgia for the era of the armed white men who’d wrested the tribes’ land from them in the first place. Here they were, like living ghosts, performatively taking already stolen territory that had been central to local Paiute and their ancestors for thousands of years. That the occupiers didn’t seem to know anything about the historical parallels involved in what they were doing—and that most seem to have never have even realized that the name of the place they’d occupied means “misfortune” or “calamity” in French— only made the whole operation feel uncannily automated, as if American history were simply stuck on repeat. “Just a bunch of different cavalry wearing a bunch of different coats,” was how Burns Paiute tribal council member Jarvis Kennedy put it at the time.

Much of American public life seems stuck on repeat, but the time period Americans seem most drawn to compulsively reenact is the time of the Civil War and its aftermaths, including the last era of the white American Dream of the frontier from which are drawn the mythical materials of “the Wild West.” The occupation was shot through with the history of these decades. The violent displacement of the 19th-century Paiute—a displacement they’d refused to ever accept—had taken place immediately following the formal end of Reconstruction, shortly after one of the most contentious and controversial presidential elections in American history, the election of Rutherford B. Hayes. The compromise that got Hayes into office had included the final withdrawal of federal troops from the South, and the reorientation of American military power toward the pacification of the zones of the plains and the intermountain West that had not yet been claimed for white settlement.

A new, collective—and white—project was now supposed to unite the divided nation, as it abandoned any commitment to the freed American people of the South, who had done so much to contribute to the North’s victory in the Civil War, and who had placed so much hope in the most beautiful words and concepts of the American Idea, the ones we celebrate each year come the beginning of July.

The general who came to the lands of what is now Harney County to dispossess the Paiute was a signature figure of the failures of that era. General O.O. Howard, evangelical Christian and dedicated abolitionist (Howard University is named for him) had been the chief of the Freedman’s Bureau. Now, Reconstruction abandoned, he found himself at the head of a western army charged with displacing Native groups like the Paiute and Nez Perce of Oregon. The rhetoric of the Malheur occupiers bore the signature of the time of the Hayes administration as well. Central to the dogma of Ammon Bundy and his crew was a notion of the power of the County Sheriff as the ultimate arbiter of constitutionality in the United States. While this idea may seem bizarre to legal minds, it has gained much traction in the West, especially in the Tea Party milieu that sprung up in reaction to the 2008 financial crisis and the election of Barack Obama.

The Fourth of July is simply not sufficient; we need a second holiday in the form of a celebration on July 9th, the date of the 14th Amendment’s ratification.

Apparently unknown to Ammon Bundy or his followers, this notion had first emerged in the 1970s in the violently racist milieu of the Posse Comitatus, a militant localist, violent, anti-black, anti-Semitic, white supremacist movement. The Posse Comitatus, in turn, was named for an important piece of legislation signed in June 1878—the same month that Howard brought the sovereign military force of the United States against the Paiute of south eastern Oregon. The Posse Comitatus Act—the phrase means “power of the county”—had put the final nail in the coffin of Reconstruction in the south, prohibiting the future use of the military in most domestic law enforcement. This meant that now federal troops would not be available to support the voting rights of black folks in southern states—while they would be more readily available to support white settlement in the West.

The era known as Jim Crow was underway. Its ideological legacies, conscious and unconscious, are still very much with us, buried in the lives of our institutions, and in the states’ rights and anti-government rhetoric of the occupiers and others, having been borne into our epic in the rhetoric of political leaders like Ronald Reagan. (Reagan’s famous “federal plantation” phrase, and its line of familiar racist thinking, was translated with near exactitude by Ammon Bundy’s father, rancher Cliven Bundy, in infamous comments made during the family’s own 2014 standoff with federal power, in which the elder Bundy claimed that government assistance to African Americans created a form of unfreedom possibly worse than Slavery itself.)

To top it off, Oregon, where this was all taking place, has—despite its current progressive reputation—its own very troubling relationship to the history of the 19th century, especially to issues of race and slavery. The state did not ratify the 14th Amendment, the amendment granting birthright citizenship to freed slaves and others, until after the civil rights era, in 1972. Not only did it not ratify the amendment till then, but it turns out that Oregon had actually briefly ratified, and then actively chosen to un-ratify the amendment, in a fit of symbolic racist pique. Oregon was also the only state admitted to the Union with a black exclusion clause in its Constitution—banning slavery but excluding black settlement, under the assumption, among other things, that free black folks would ally and intermarry with the indigenous population, producing a new super race of “savages”—as one Oregon representative put it—with intimate reconnaissance of white habits and whatever special powers Native people were imagined by fearful, guilty whites to possess.

One of the only extensive treatments of the 14th Amendment issue in Oregon is Cheryl Brooks’s Oregon Law Review article on the history and aftermath of the re-ratification. Brooks closed her 2004 piece calling for a public acknowledgment of that history. Elsewhere in the same article she argues for the necessity of recognizing the work of “reconstitution” the 14th Amendment accomplished—in its remaking of the American body politic.

Following the mess of Malheur up close and onward through the federal courts, all of it happening during the meltdown of 2016 and the continual crisis of the current administration, made clear to me the need for similar action on the national level. The Fourth of July is simply not sufficient; we need a second holiday in the form of a celebration on July 9th, the date of the 14th’s ratification, a holiday to acknowledge the legal enshrinement of this reconstruction effort—however flawed—to make the most beautiful words of the Declaration of Independence a little more true. (By no means would such a symbolic commemoration replace the need for the hard work and conversations currently being undertaken regarding notions of reparation.)

Looking at the catastrophe of our contemporary political meltdown, it is important to recall that the Declaration itself did not come into being purely through the will of a few enlightened geniuses, but was rather the result of an improbable alliance between different currents of power and of thought about proper forms of governance, currents whose descendants have often been at odds ever since. The push for independence at the Continental Congress found success due to the collaboration of the New England Constitutionalism of the likes of John Adams, future federalist and notably strong advocate of a powerful national government, who worked with people like Thomas Jefferson, an enlightenment besotted aristocratic slaveholder representing Virginia, who would go on to become personally synonymous with the defense of the sovereignty of the individual states. The Virginians and New Englanders would not have succeeded without the popular power of the streets of Philadelphia, and highly influential left-wing radicals like Thomas Paine; the decisive influence of these elements over the crucial Pennsylvania delegation led to the approval of the declaration.

That it is impossible to imagine the significant collaboration of such strands of American political thought and action today tells us a lot about our current crisis. That we can’t even agree on our basic commonality, should make it no surprise that we find ourselves incapable of serious conversation on the proper uses of sovereignty. A consensus on our commonality—in the form of a new ritual stipulation of the basic fact of our being here in this nation together—may be required if we’re to tackle anything as needfully ambitious as a Green New Deal. As counterintuitive as it may seem, a national holiday for the 14th amendment may have a role to play in any legislative agenda that proposes that Americans gather their energies together, and approach—from different theories and practices of democracy, whether federalist or localist, liberal or conservative, libertarian or socialist—the common problem of dwelling together on this continent and on this earth.

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Shadowlands: Fear and Freedom at the Oregon Standoff is out now from Bloomsbury.