Right's attack on birthright citizenship: A new front in the battle for the Constitution

Right-wing hitman Michael Anton claims Trump can undo birthright citizenship by executive order. This has a history

By Paul Rosenberg

Contributing Writer

Published July 29, 2018 12:00PM (EDT)

Ann Coulter; Donald Trump; Michael Anton (AP/Getty/Photo montage by Salon)
Ann Coulter; Donald Trump; Michael Anton (AP/Getty/Photo montage by Salon)

Attacks on birthright citizenship — such as the one recently published in the Washington Post by former Trump White House aide Michael Anton, he of the “Flight 93 manifesto” — are nothing new. They bubbled up during the right-wing anti-immigration politics of the George W. Bush era, with a further boost from birtherism. But they don’t have a leg to stand on, as even one of Trump’s most attention-grabbing appeals court judges, James Ho, put it bluntly in an Los Angeles Times op-ed back in 2007:

Birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower.

A number of commentators wrote scathing critiques, including Daniel Drezner, Gerard Magliocca and Scott Lemieux, among others. Perhaps none was more scathing than the response from University of Baltimore law professor Garrett Epps -- a leading scholar of the 14th Amendment -- who previously took down the arguments of Edward Erler, on which Anton relies heavily. A week earlier, Epps had written a comprehensive overview, “The Struggle Over the Meaning of the 14th Amendment Continues,” in which he notes:

[A]s late as 1957, pro-Southern commentators took the position that the amendment itself, having been imposed upon the South by Yankee scum, was not valid at all.

No one seriously claims that the amendment is invalid today; but every word, every part, and every effect of this most crucial of constitutional amendments has been fought over as bitterly as was the Bloody Angle at the Battle of Spotsylvania Court House.

That battle goes on today. It is, and has been for 150 years, a battle for the very heart of the American republic.

This helps explain how seriously Epps takes the stakes involved, but his response to Anton went even further, focusing ultimately on the latter’s extraordinary claim that President Trump alone, via executive order, could effectively invalidate the amendment with a stroke of a pen.

No one but Anton, Epps wrote, "has dared to suggest that a president could void the citizenship clause by executive order.” If that happened, he told Salon in a recent interview, “It would be the biggest constitutional crisis of our lifetime.” But before exploring what’s really at stake, we need to understand just how ridiculous Anton’s position really is.

Perhaps the simplest way to demolish Anton's position is simply to quote him:

The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don't.

There was of course no remote equivalent in 1868 to the “children of immigrants who came here illegally”: The United States did not pass its first restrictive immigration law, the Page Act, until 1875.

The next paragraph of Anton’s op-ed doesn’t even require outside evidence to demolish. It borders on gibberish:

Those framers understood, as did America's founders, that birthright citizenship is inherently self-contradictory. A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact's scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members. [Emphasis added.] A compact that anyone can join regardless of the wishes of its existing members is not a compact. As President Donald Trump likes to say, "If we don't have a border, we don't have a country."

It's hard to say what Anton thinks he means here: Do we all get to vote on who gets to be a citizen and who doesn't? By this nonsensical logic, every newborn American — even a 10th-generation Daughter of the American Revolution — would need the unanimous consent of every existing citizen in order to become a citizen themselves!  If that were actually the case, we might end up with no citizens at all!

READ MORE: Could overturning Roe v. Wade lead to a nationwide abortion ban? It's possible

This “intellectual” train wreck shouldn’t be seen as an isolated event, or only loosely related to earlier attacks on the 14th Amendment. They are all part of a sweeping, long-standing conservative attack against Reconstruction and the Progressive Era, which has sought in various ways to invalidate, deny or repeal the constitutional amendments passed in those eras, which laid the foundations for modern-day American society. If we want to truly understand the deadly stakes behind Anton’s gambit, we first need to take several steps backward and grasp the historical context from which it appears.

The conservative attack on Reconstruction and the Progressive Era

Conservatives have never been shy about attacking the Great Society programs of the 1960s, and it’s well known they want to repeal the New Deal as well. But there's a much broader record of attacks on virtually every expansion of federal power and individual rights since the Civil War. For example, former Rep. Ron Paul's attacks on the income tax reflect one facet of this. Cripple the government’s power to tax, and you cripple the government. What could be easier?

In 2007, Paul even tried to equate militia-style tax evaders with Martin Luther King Jr., in a since-deleted video. There’s an earlier 2004 CNBC video in which Paul says he is "concerned about the way the 16th Amendment was passed" and doesn't think it was "technically correct," trying to deploy minor grammatical disparities to throw out the constitutional amendment that empowered Congress to levy a national income tax. There’s a whole alternative universe of similarly bogus arguments, many based on earlier amendments, which the 16th Amendment would simply have overridden, if any of those arguments actually held water (which they don’t).

After Barack Obama’s election in 2008, the Tea Party movement sparked a wave of conservative calls to repeal the popular election of senators, enabled by the 17th Amendment. That might seem an odd cause for a “populist” uprising to embrace, until you recall that the Koch brothers had spent nearly a a decade trying to get the Tea Party off the ground.  Women's suffrage has been attacked by Ann Coulter, most prominently, and echoed by others.

Lest it be thought these are all comical gestures, found only on the far-right margins al gestures, we should also include the Supreme Court's Shelby County decision of 2013, which effectively invalidated the 15th Amendment’s protection of minority voting rights. It casually disregarding Section 2, “The Congress shall have power to enforce this article by appropriate legislation,” on the basis of an imaginary “fundamental principle” dreamed up by Chief Justice John “Balls and Strikes” Roberts. These and many more lines of conservative attack reflect a deep hostility to what modern America has become, not just since Lyndon Johnson or Franklin D. Roosevelt, but since Teddy Roosevelt and Abraham Lincoln.

The Constitution is a living document, much to the horror of conservatives, in part because it has been repeatedly revised over time. And conservatives really hate that. As Epps noted in his 2012 book, “Wrong and Dangerous: Ten Right-Wing Myths about Our Constitution, “Progressive critics of the Constitution say that it was written in 1787 by rich white men, many of them slaveholders, to protect their own racial, sexual, and economic privilege. The only answer to that charge is this: True enough. But we don’t live under the Constitution set up in 1787.” After the first 10 amendments in the Bill of Rights, he notes:

[M]any amendments … have been designed to push American government and society in a progressive direction. The Thirteenth Amendment outlaws slavery in sweeping terms; the Fourteenth protects the civil rights and legal equality of citizens; the Fifteenth, Seventeenth, Twenty-Fourth, and Twenty-Sixth Amendments all expand the right to vote and protect it against state interference. The Sixteenth Amendment gives the federal government the power to enact a progressive income tax; the Seventeenth requires that the people, not legislators, choose United States senators.

In sum, Epps writes, “The arrow of these amendments pushes one way — toward greater equality, greater democratic participation, and more effective power for the national government.” The only exception — the 18th Amendment, imposing Prohibition — was soon repealed by the 21st. “The Constitution may have begun as a charter of privilege," he writes, "but over the years, we the people have remade it into a document that, for all its flaws, embodies the progressive ideas of freedom, equality, national power, and self-government.”  

Conservatives' fake history of the Constitution

This grand sweep of progress, uneven and incomplete though it may be, is a necessary foundation for making sense of conservative attacks mounted against the Constitution — always, of course, conducted in its name. As Epps noted in his book, there are multiple different strands of conservative thought woven together behind these attacks. The first he describes derives from the Glenn Beck-popularized theories of W. Cleon Skousen, promulgated by the National Center for Constitutional Studies:

The “truth” about the Constitution is this: God wrote it. He handed it down to Moses, who applied it to govern the people of Israel. This divine law was carried from ancient Israel to Northern Europe after the Assyrian Conquest in 720 BCE by the famous “lost tribes” of Israel. After much wandering, these chosen people settled in the British Isles, where they took the name “Anglo-Saxon.” They ruled their medieval kingdom by the law of Moses, but its purity was lost after the Norman Conquest in 1066 CE. The Founding Fathers of the new United States, inspired by the Lord of Hosts, wrote the Constitution to restore His Anglo-Saxon kingdom.

Since it is God’s will that Americans live like medieval Saxons, it shouldn’t surprise anyone that virtually all of modern American life and government is unconstitutional: Social Security, the Federal Reserve, the Environmental Protection Agency, the Civil Rights Act of 1964, hate crime laws — illegal inventions of a people who have been led astray by false prophets. The trouble began with the Civil War, a needless conflict in which the wrong side won. Slaves were happy and carefree in slavery. Racism was caused by pushy Northern abolitionists. State governments are not required to observe the Bill of Rights. The very idea of separation between church and state is a pernicious myth; the First Amendment’s religion clauses establish “nondenominational” Christianity as “the religion of America.”

It’s a bizarre fantasia, but hardly an anomaly, as Epps points out: “Turn on any AM radio talk station, or Fox News Channel, or C-SPAN. The far-right myth of the Constitution is being systematically mainstreamed. Americans today are frightened and disoriented. Since 2000, our society has been through a series of shocks. … In the midst of uncertainty, people are turning to the Constitution for tools to deal with crisis. The Constitution is what makes Americans who we are. … The Far Right — the toxic coalition of Fox News talking heads, radio hosts, angry ‘patriot’ groups, and power-hungry Tea Party politicians — is feeding them mythology and lies.”

Fake history in historical context

This is a historically predictable development. In “Revolution and Rebellion in the Early Modern World,” Jack Goldstone first presented a comprehensive theoretical framework for understanding the processes involved in state breakdown, based on studies spanning Europe, China and the Middle East from 1500 to 1850. There was, he argued, a single basic process, which “unfolded like a fugue, with a major trend giving birth to four related critical trends that combined for a tumultuous conclusion.” The fourth and final trend was the rise of heterodox belief systems in response to the material breakdowns of the other three.

"Ideologies of rectification and transformation became increasingly salient,” Goldstone wrote, as spreading popular distress “undermined the credibility of religious leaders associated with states, and turned both elites and middling groups to heterodox religious movements in the search for reform, order, and discipline. Narratives of injustice rooted in local ideals of moral leadership spread widely and characterized the rulers as betraying national or religious virtues, and thus no longer deserving of loyalty.”

The decline of traditional religious denominations, the rise of televangelism and the spread of quasi-religious fake history narratives to reinterpret the U.S. Constitution are all facets of the same phenomena that Goldstone first observed in the early modern world, in a book published 25 years ago.

Conservatives enjoy an asymmetric advantage, in part, because they incline toward sweeping narratives, geared toward persuasion, while liberals incline toward practical problem-solving, guided by Enlightenment models of reason. That's the argument of Chris Mooney in “The Republican Brain,” also presented by George Lakoff in multiple works. This also reflects the ancient distinction between mythos (finding meaning in the world) and logos (figuring out how things work).  Liberals can’t simply adopt conservatives’ ways of thinking and doing politics, but both sides of this divide have deep roots in human nature, so no rejection of their existing strengths is really needed — only a development of what they’ve tended to neglect.

For progressives to fight back successfully, they must respond with similarly sweeping narratives rooted in powerful moral foundations, of a kind exemplified by the Rev. Dr. William Barber II in his memoir, "The Third Reconstruction: How a Moral Movement Is Overcoming the Politics of Division and Fear."

"Right here in my home state of North Carolina, a white minister and a black minister worked together in 1868 to write the Constitution whose moral language has guided our 21st-century movement," Barber told me in a 2016 interview. "Their language scared extremists then as much as it does now." That state-level action reflected a similar national vision that was bound up in the drafting of the 14th Amendment, which has become the subject of intense disinformation on its 150th anniversary. That brings us back to the subject of the 14th Amendment itself, the battle over its meaning and significance, and the clownish but potentially deadly turn it has just taken in our public life.

The 14th Amendment as turning point

In his discussion with Salon, Epps noted that there’s wide diversity within the conservative position as well as some common threads, a point also made in his book. Still, a basic argument can be made about what the 14th Amendment intended and why conservatives continue to argue against it.

Regarding the language that became the citizenship clause, Epps said, "It's pretty clear that the idea behind this was, we are not going back to a system of a large subordinate population of what they called repeatedly ... a system of castes -- hereditary, subordinate, lifelong. We're not going back to that. We're going to have one citizenship [and] national citizenship will be paramount. The states will have nothing to say about it, they have to accept whoever shows up." 

The authors of the 14th Amendment weren’t doing 18th-century constitutional theory, in other words. They were cleaning up the mess that the 18th-century Constitution had left them with, and did so with remarkable efficiency, Epps says:

If you think that the problem was the desire of various communities to treat people as in essence stateless people, not really Americans, you can see that the idea of this paramount national citizenship is the key. It's the centerpiece of section 1 of the 14th Amendment. Everybody is a citizen, that's step one. Step two is privileges or immunities of citizenship, those are national [and] states can't abridge them. Then third and fourth are due process and equal protection for persons. ... So you can see that the 14th Amendment is very carefully put together. I think it's perceived by a lot of people today is just as random set of operations, but it's not. 

Which is not to say everyone was happy with the results. “There is and has been this yearning in the American imagination for the days when we had a group that didn't have the same rights as everybody else,” Epps said. “The Southern states managed to re-create that with segregation, although formally black people were citizens, and in fact black citizenship in the end kind of undid that system, although it took 75 years.”

The attack on birthright citizenship strikes at the very foundation for all that. “Paramount national uniform citizenship is the keystone of the 14th Amendment, and the reforms made to our Constitution after the Civil War,” Epps said. “Notice that the 15th amendment, the right to vote, references 'citizens of the United States.' So the key to the United States as a democratic nation is that there is one citizenship, paramount. It is not a gift of the government, it is a birthright.

“In historical terms, the attempts to alter that represents precisely the same impulse that led to Southern segregation," he continued. "That is, 'You're not serious about that. We can't have everybody be a citizen. We need a caste of people that we are better than, and that we can make use of.' That was what segregation was about, and that's what would happen," he concluded, if the principle of birthright citizenship were eliminated. 

One thing that gives conservatives a powerful rhetorical advantage is their belief in an overriding purpose driving the Constitution, even if that purpose can seem demented or obscure. But this clashes head-on with the historical reality that the Constitution was and is a practical document shaped by the needs to confront practical problems, including new problems that arise from past inadequacies.

“With the 14th Amendment they had a specific set of problems,” Epps said. “They had a problem of the subordinate population that was basically poisoning the democratic political order. What do we do? Well, we put an end to it, right? So when you suddenly start saying, 'What about [John] Locke?' and 'What about consent?' you can just hear Thaddeus Stevens responding, 'Get this bullshit out of my Congress, because we are dealing with very serious and specific political problems.'”

The same patterns of thought apply more generally, Epps argued. “I think conservatives have this a priori assumption that there is a theory, that we figure out what the Constitution means, in the first instance by studying non-constitutional sources, such as Locke. By and large liberals want to say, 'Look, here's a set of rules, let's use some.' That's what a constitution is, a set of rules. It's not the da Vinci Code.”

This is the larger situation we find ourselves in: liberal logos and pragmatism, versus conservative mythos and fantasies of salvation. Anton’s call for Trump to abolish birthright citizenship with the stroke of a pen is a "da Vinci Code" move, which could plunge America into a state of political chaos not seen since the Civil War. The progressive mythos we need to fight back is right there before us, in America's generations-long struggle to forge "a more perfect union."E pluribus unum. Its moral core is as simple as the parent-child bond, and the universal desire to make a better world for our children. 

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By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News and columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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