Birthright and Wrong

The Regime's Attack on the Constitution

Satan presiding at the Infernal Council, John Martin, 1824, engraving

On Wednesday, Trump became the first president to attend oral arguments at the Supreme Court. Maybe he is simply trying to intimidate the Justices who have already struck down much of his program, but it’s telling what case he picked: Trump v. Barbara concerns his executive order that attempted to effectively end birthright citizenship. I think if you wanted to boil down the Trumpist project to its essence, it’s an attack on American citizenship itself. Jamelle Bouie has recently called this a “war on the 14th Amendment.” This is what Hegel would call the Geistesgehalt, the spiritual content, of MAGA. It is why all the forces of reaction and destruction rallied to Trump’s Pandæmonium: they sensed and were summoned by this essential nature.

The regime has been working on this for a long time—here’s the beginning of a piece I wrote for the Times in 2018:

Surveying the wreckage of McCarthyism in 1957, the political theorist Hannah Arendt wrote about efforts to denaturalize American citizens suspected of Communist ties.

“It seems absurd,” she concluded, “but the fact is that, under the political circumstances of this century, a constitutional amendment may be needed to assure American citizens that they cannot be deprived of their citizenship, no matter what they do.”

It no longer seems so absurd. Citizenship is squarely in the Trump administration’s cross hairs. It has organized a Citizenship and Immigration Services task force to denaturalize American citizens, the first effort of mass expatriation contemplated since the McCarthy era. In a recent op-ed article for the Washington Post, Michael Anton, a former national security official in the administration, even proposed getting rid of birthright citizenship — by dictatorial fiat, no less: “It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens.”

Yes, you’re reading that right: A high-ranking former member of the state security apparatus seriously believes that it is good policy to revoke citizenship by executive order.

Well, that’s exactly what they did this time around.

What Trump and his cronies want to do is reverse the settled notion of American citizenship that has prevailed since the Civil War with something else, which I’d argue is not citizenship at all, but something more like subjecthood. Again, this is the innermost content of the MAGA revolution: an end to the American idea altogether.

And here’s what I wrote last summer, which I think all still applies:—

The essence of Trump’s movement is an attack on the very concept of American citizenship. It’s the bright, red thread that runs through the entirety of its existence: from its origin in birtherism, the racist idea that there was something questionable or tainted about Barack Obama’s citizenship, to the stolen election myth, which sought to disenfranchise millions of Americans, to the attempt to end birthright citizenship by fiat through executive order, and the newly announced prioritization of denaturalization cases by the Department of Justice. A Republican congressman called for New York mayoral candidate Zohran Mamdani’s denaturalization and deportation. The White House said it should be “investigated.” This is not to be taken lightly.

I say it is an attack on the concept of citizenship, not a redefinition or even a return to the pre-Reconstruction racial state, because, in the Trumpian universe, there is no agreed-upon, apolitical definition of who is granted citizenship, of who bears inalienable rights under the law. The sovereign decides who a citizen is, as it decides who is an enemy and where and when the law applies. It becomes entirely arbitrary, a prerogative grant. Citizenship is no longer a right; it is, as the Orwellian executive order PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP puts it, “a privilege,” a “priceless and profound gift.” No one can seriously argue that, if possible, Trump would not like to revoke and grant citizenship at will. That’s what he is already trying to do. Look at the idea of the Trump Card, where someone can buy their way into citizenship. This a further degradation of the notion of citizenship from a set of rights and duties to a transferable and revocable commodity.

The correlate in practice of the destruction of citizenship in theory is deportation to a place beyond the law: the concentration camp or worse. That is the meaning of the experiments with deporting people to El Salvador or dangerous “third countries” where they may be killed or tortured. They are, in effect, rendering people stateless. In a 1952 letter to Robert Hutchins, then director of the Fund for the Republic, Hannah Arendt wrote:

As long as mankind is nationally and territorially organized in states, a stateless person is not simply expelled from one country, native or adopted, but from all countries—none being obliged to receive and naturalize him—which means he is actually expelled from humanity. Deprivation of citizenship consequently could be counted among the crimes against humanity, and some of the worst recognized crimes in this category have in fact, and not incidentally, been preceded by mass expatriations. The state’s right of capital punishment in case of murder is minor compared with its right to denaturalization, for the criminal is judged according to the laws of the country, under which he possesses rights, and he is by no means put outside the pale of the law altogether.

Justice Earl Warren, in Trop v. Dulles agreed, calling denaturalization “a cruel and unusual punishment:

We believe, as did Chief Judge Clark in the court below, that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.

This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.

From what I’ve been able to see, there’s been no discussion of the fact that the revocation of birthright citizenship would potentially make thousands of infants stateless. What would then be done with them?

It’s long been my contention that the attack on citizenship is the most serious and frightful aspect of the Trump phenomenon and the one that makes it most deserving of the epithet fascist or totalitarian. “MAGA,” in its innermost being, means “death to America.” If they successfully destroy American citizenship as enshrined in the Constitution, they will have destroyed the country. We will be, all of a sudden, somewhere else. It may be called the United States of America, but it really won’t be. It won’t feel like a big cataclysm, happening all at once. It will come not with a bang but a whimper. It will be a chaotic and shambolic existence where more and more people have to scramble to ensure they have the right papers or are in the right zone. It will be stupid and laughable, a “system” not particularly hard to outwit, but unspeakably dire in its consequences if one happens to slip through a crack. And likely, for most, they will have little to worry about. Superficially, life will continue much as before. But we will be a sad shadow of that former country, at times recognizable in its old outlines, but fading fast.

Fortunately, it sounded to me from listening to the Justices that they seem pretty unsympathetic to the government’s arguments. But it is much too close for comfort.