I respect your opinion, so I was just wondering if you had read the article in the NYT on Tuesday, How Stable Are Democracies? ‘Warning Signs Are Flashing Red.’ I'd be curious to hear any thoughts you'd be willing to share. What is your level of concern on this issue, particularly for your country? Many of my U.S. liberal friends, who have been losing their minds since Trump's victory, think the country is on the road to dystopia, which is easily my least favorite Hope and Crosby movie. BTW, I just received my copy ofThe Permission Society, and I'm looking forward to reading it this weekend. Also, I watched your Cato book forum appearance online the other day and enjoyed it. Keep up the great work!
Thanks! I have read the article. I do have my worries about the future of American democracy, but this article, I think, is not a strong basis for concern, on its own. It reports on a poll that shows a lot of Americans answering that they do not consider it crucial that the U.S. remain a democracy. That may be worrisome, but I think there are other factors at work. For one thing, the word “democracy” is a loaded one—many people, including myself, prefer to use terms like constitutional republic to describe our system. Such people might answer a poll question like this in the negative, without meaning that they approve of military dictatorship or whathaveyou.
The idea of punishing people by depriving them of their citizenship is hardly new, even in the United States. It features, for instance, in the classic short story “The Man Without A Country,” by my distant relative Edward Everett Hale. But in the United States, it is usually, though not entirely illegal. Neither Congress, nor the President, nor the courts, have any power to deprive most American citizens of their citizenship. That’s because of the Fourteenth Amendment, ratified in 1868, which declares that
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….
Before 1868, the U.S. Constitution didn’t define citizenship. This created a number of paradoxes, as I describe in more detail in my book The Conscience of The Constitution. Although it’s clear from the Constitution’s text that there is such a thing as U.S. citizenship—Article I section 2 and Article I Section 3 refer to “a Citizen of the United States,” as does Article II section 1, and Article IV section 2 refers the “Privileges and Immunities of Citizens in the several States”—the document never explained what exactly a citizen of the United States is, or how one gets citizenship. Although Congress was given power to enact “an uniform Rule of Naturalization,” it is never given any other powers over citizenship.
That meant that, before 1868, U.S. citizenship was basically a function of state citizenship, which was a real problem in the days of slavery. A black man could be a citizen of Massachusetts, and consequently a citizen of the United States. But a black man could not be a citizen of South Carolina, and therefore could not be a citizen of the United States there. If a black sailor were to sail in a ship from Boston to Charleston, therefore, and be imprisoned under the Negro Seaman’s Act, therefore, was he not being deprived of the “privileges and immunities” of his citizenship? Abolitionists answered yes—he was a citizen of the United States, and state laws to the contrary must be unconstitutional. But then came Dred Scott, which declared that black Americans, slaves or not, could never be American citizens.
The Emancipation Proclamation and the Thirteenth Amendment declared the slaves free, and some argued that they were also automatically citizens as a result. But many feared that this was not a safe assumption. What if wicked men in some future period chose to re-enslave the freedmen or their descendants, or deprive them of citizenship? Southern states in the post-war era were already refusing to respect the rights of free black citizens. And re-enslavement wasn’t an unrealistic fear. The freedmen of Haiti had been re-enslaved only decades before.
It was to clear up these and other problems that the Fourteenth Amendment was written, which takes the question of citizenship almost entirely out of Congress’s hands. It makes citizenship a constitutional matter, not a political one. Congress cannot deprive any person “born or naturalized in the United States, and subject to the jurisdiction thereof” of his or her citizenship.
In Afroyim v. Rusk, the Supreme Court declared that the citizenship conferred by the Fourteenth Amendment cannot be taken away by Congress under any circumstances. “Citizenship,” said the Court,
is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.
Justices Harlan, Clark, Stewart, and White, dissented. They argued that while the Constitution grants citizenship, Congress still had power to take it away, so long as it comports with due process.
Indeed, deprivation of citizenship was imposed as a punishment for draft-dodging throughout American history, and in Kennedy v. Mendoza-Martinez, the Supreme Court seemed to hold that that is constitutional, again so long as due process is afforded the accused. But the Afroyim Court overruled the cases on which Kennedy was based.
Also, in Rogers v. Bellei, the Court found—over a dissent by Justices Black, Douglas, and Marshall—that there are some citizens whose citizenship can be revoked: those who do not automatically qualify as citizens under the Fourteenth Amendment. For people whose citizenship is based on statute, Congress giveth and Congress can taketh away. That case involved a statute that placed limits on dual citizenship by forcing people to make a choice. Because “a dual national constitutionally may be required to make an election,” a law to that effect was constitutional, so long as it complied with due process.
The dissenters argued that the purpose of the Fourteenth Amendment was to eliminate the notion that there is some “hierarchy of citizenship,” with some people more citizen-y than others. That’s largely true: the authors of the Amendment rejected the notion, advanced by advocates of slavery, that there could be three classes (slaves, citizens, and non-slave “others”).
One thing that is obvious: the idea of depriving people of their citizenship as a punishment for speech is a disgusting proposal, rooted in tyrannical impulses. It’s the sort of political crime that the founders sought to prohibit when they carefully defined the word “treason” and banned bills of attainder—to prevent future Presidents from persecuting people whose political expression they disliked.
A voice unbelievably similar to the voice that had addressed the nation, the army, the entire world on 3 July, 1941, now addressed a solitary individual holding a telephone receiver.
“Good day, comrade Shtrum.”
At that moment everything came together in a jumble of half formed thoughts and feelings—triumph, a sense of weakness, fear that all this might just be some maniac playing a trick on him, pages of closely written manuscript, that endless questionnaire, the Lubyanka…
Victor knew that his fate was now being settled. He also had a vague sense of loss, as though he had lost something peculiarly dear to him, something good and touching.
“Good day, Iosif Vissarionovich,” he said, astonished to hear himself pronouncing such unimaginable words on the telephone.
The conversation lasted two or three minutes.
“I think you’re working in a very interesting field,” said Stalin.
His voice was slow and guttural and he placed a particularly heavy stress on certain syllables; it was so similar to the voice Viktor had heard on the radio that it sounded almost like an impersonation….
“I believe in my work,” said Viktor.
Stalin was silent for a moment. He seemed to be thinking over what Viktor had said.
“Has the war made it difficult for you to obtain foreign research reports?” asked Stalin. “And do you have all the necessary laboratory equipment?”
With sincerity that he himself found astonishing, Viktor said: “Thank you very much, Iosif Vissarionovich. My working conditions are perfectly satisfactory….”
“Goodbye comrade Shtrum, I wish you success in your work.”
“Goodbye, comrade Stalin.”
He put down the phone….
There was something extraordinary about the way nothing in the room had changed. The sideboard, the piano, the chairs, the two unwashed plates on the table, were exactly the same as when Viktor and Lyudmila had been talking about the house-manager. It was enough to drive one insane. Hadn’t their lives been turned upside down? Wasn’t a new destiny awaiting them?
I spoke today at the Cato Institute about my new book, The Permission Society. Commenting on the book were Cato's Roger Pilon, Dean Alan Morrison of GW Law School, and Judge Stephen Williams of the D.C. Circuit Court of Appeals. If you missed it, you can watch here:
Southern California friends: I'll be giving a special pre-release presentation about my new book, The Permission Society, at my alma mater, Chapman University School of Law, on August 29 at 5 o'clock. Free to the public. Although the book won't be officially out till September 13, it will be available at the event. Please join us!
The Objective Standard's fall issue is now available online, and it has the first of my three articles on the influence of the Greeks on America's founding fathers. The first focuses primarily on Thomas Jefferson and Epicurus. The second, in the winter issue, is about how the founders, especially James Madison, learned from the Greeks what not to do. The third, in spring, 2017, involves the Greek Revolution and American Civil War.
I’m sorry that I wasn’t able to get to Randy Barnett’s new book sooner.Our Republican Constitution is a fantastic contribution to the cause of constitutional freedom, and should be near the top of anyone’s list who wants to learn about the crucial constitutional issues of the day. It’s simultaneously succinct, clear, and thorough, and—if I may be so vain—is an excellent companion to my own book,Conscience of the Constitution. This is particularly because Barnett includes much material that I do not discuss—especially his discussion of Chisolm v. Georgia. When I came to that part of the argument while writing Conscience, I admit that I panicked at the thought of trying to explain it, and decided to just skip it. Barnett manages to cover it in just a few pages, accurately, succinctly, and in a way that gets to the heart of a case that can be pretty rough slogging even for experienced constitutional lawyers.
Another highlight of the book for me was Barnett’s point that the Progressive judges and law professors changed the terminology of judicial protection so that instead of referring to the courts’ “duty” to strike down unconstitutional laws, they came to call it a “power”—and thereby changed our conception of the judges’ role. “Powers can and should be exercised with discretion or ‘restraint,’” Barnett observes, “but we don’t speak the same way of our duties.” That’s right—it was through this reconceptualization that the Progressives were liberated to argue that the courts should decide in an essentially political way whether or not to strike down unconstitutional laws. New Dealers laffed and laffed when the Supreme Court said in United States v. Butler that the judge’s job is to “lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” They insisted that the courts are political bodies that ought to ditch that aspiration to objectivity in order to serve higher social goods. But in fact, the Butler Court was right, and by thinking of judicial review as a “power” instead of a “duty,” later generations of judges have helped perpetuate the myth that judicial review is a form of “activism.”