Narrowing the borders

The firehose is back. As during the heady days of Trump I, there are so many insane and dangerous things going on at once that it’s impossible to cover them all, which will no doubt be a theme of the next four to forty years. The gaslighting about shadow president Elon Musk’s Nazi salute at the inauguration parade has been well covered elsewhere. Trump’s quick actions to legalize racism in federal hiring and put over 1,600 insurrectionists—including violent neofascists openly vowing revenge—back on the streets, are harbingers of stories to come.

And his announcements that he indeed intends to “take back” the Panama Canal, annex Greenland, as well as—and this is verbatim from his inaugural address—“pursue our Manifest Destiny to the stars, launching American astronauts to plant the Stars and Stripes on the planet Mars” is so straight out of Gangsters of Capitalism that I seriously have to wonder if his team isn’t using my book as a manual.¹

But the trick when facing a firehose of bullshit is first to duck, then try to focus on a representative turd. So that’s what I’m going to do here, by honing in on one of Trump’s most blatantly anti-constitutional Day One moves: His flagrantly dictatorial attempt to unilaterally revoke the right to universal birthright citizenship from the children of mothers who are either “unlawfully present” or “lawful but temporary” in the United States.

Twenty-two Democratic-led states filed a lawsuit to block his executive order on the grounds that this was laughably unconstitutional. On Thursday, Judge John Cougheneour, a Reagan appointee to the federal bench issued a temporary restraining order, stating in no uncertain terms: “I’ve been on the bench for over four decades, and I can’t remember another case where the question presented is as clear as this … Frankly, I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.”

But an administration that tried to retain power through an attempted coup, and got away with it thanks in no small part to the acquiescence of its loyal justices on the Supreme Court, isn’t going to let little things like “the constitution” or “the plain meaning of words” stop them. So I’m going to use this space to talk about why they are doing this, and what could happen if they succeed.

Laws are sometimes complicated. This one isn’t. The right to U.S. citizenship by birth on U.S. soil is enshrined in the first line of the 14th 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.” That citizenship clause, drafted in the immediate aftermath of the Civil War and ratified along with the rest of the amendment in 1868, was primarily intended to overrule the infamous decision in Dred Scott v. Sanford from before the war, which had ruled that members of the “African race” could not be citizens of the United States.

It also came as part of a wave of jus soli — or “right of the soil” birthright citizenship laws — that were being implemented across the Western Hemisphere: in El Salvador in 1841, the Dominican Republic in 1865, in Argentina in 1869, and so on. These laws were based on both emerging liberal ideals — that everyone had equal rights, including an equal opportunity to become citizens — and the needs of settler-colonial states, whose peoples did not necessarily have deep ancestral ties to the land, and depended on arrivals of immigrants to provide wealth and labor.

Those prerogatives often came in conflict with one another: some emphasizing the liberal part, and others trying to keep jus soli for the children of white immigrants while reining it in for others in favor of European-style blood-and-soil racial hierarchy. An example of that contradiction would be the government’s treatment of Native Americans, who even with the provision of the 14th Amendment, and despite coming from tens of thousands of years of native birth would not be granted U.S. citizenship until an act of Congress in 1924 — long after the era of major territorial theft and “Indian removal” was over.

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