The papers are burying the lede on the story of SCOTUS ruling in favor of birthright citizenship. The headline should not be that it survived, it should be that the ruling was 5-4 on the Constitutional question. In other words, birthright citizenship, a bedrock principle of law in the United states for over 150 years, survived by only a single vote. That rescinding birthright citizenship could even be seriously considered was unthinkable a mere two years ago. In that time it has gone from a fringe position to one vote short of being the law of the land. This should terrify everyone who thinks their status as a U.S. citizen is secure. It definitely terrifies me. I have held a U.S. passport since I was ten years old. But if push came to shove and I had to prove that I came by my passport legally, I 'm not sure I could. I was not born in the U.S. and neither were my parents. I have lived in the U.S. my entire conscious life but I have never voluntarily sworn fealty to her, and if asked to do so today I am not sure I would.
Putting that on the public record scares the shit out of me. I am not even remotely confident that this will not come back to haunt me. As I said, I have lived in the United States my entire conscious life (my family emigrated when I was five years old). I played by the rules. I have never been arrested. I have never been unemployed. I have never failed to pay my taxes. I have never defaulted on a debt. But the country I grew up in made an implicit bargain with me: in exchange for my good behavior, I was entitled to freedom of religion and freedom of speech. I could say things like: "if I were asked to swear fealty to the United States today I'm not sure I would" without fear of having my citizenship -- or my TSA pre-check status -- revoked.
That trust now lies in flaming ruins.
If you think I'm being hyperbolic, you need to read the dissents in Trump v. Barbara. Clarence Thomas writes, "[A]t the time of ratification, exclusive loyalty to the United States had long been a fundamental element of American citizenship." [Emphasis added] That might be true, but "exclusive loyalty" to the United States has never been an element of the law. The word "loyalty" does not appear anywhere in the text of the Constitution. Holding dual citizenship has always been legal in the U.S., and it is still legal today, at least ostensibly.
But Thomas makes it clear that conservatives have dual-citizenship in their crosshairs, writing, "if the Court were right that the Citizenship Clause did not require domicile, then it would have increased dual nationality, which would have provoked concern among 19th-century Americans."
The problem is that there is no statute that explicitly allows dual citizenship, nor is there one that prohibits it. The legality of dual citizenship was not formally established until 1967 when the Supreme Court rules in Afroyim v. Rusk that dual citizenship was a Constitutional right guaranteed by the 14th Amendment. But here again the situation is not cut and dried because Afroyim overruled an earlier decision, Perez v. Brownell, where the court ruled that you could have your citizenship revoked if you actually exercised your rights as a dual citizen by, say, voting in a foreign election.
In other words, your rights as a U.S. citizen are only as secure as the whims of the Supreme Court care to make it. This has, of course, always been true in an academic sense, but the actual possibility that the Court would fuck with long-established precedents was not something anyone had to seriously consider.
Until now.
Invoking loyalty as an explicit criterion for citizenship should scare the hell out of you, and using residency as a proxy for loyalty should scare the hell out of you even more. Loyalty to what exactly? When I was a kid going to public school in Kentucky in the early 1970s we were made to recite the Pledge of Allegiance, which always struck me as rather odd: "I pledge allegiance to the flag..." What the fuck does that even mean, to pledge allegiance to a flag? I can kind of understand what it means to pledge allegiance to a nation (though even that is fraught with all manner of difficulty if you actually stop to think about it) but a flag? How does pledging allegiance to a flag not run afoul of the Biblical prohibition against idolatry?
Of course, the Pledge goes on to add, "... and to the republic for which it stands..." But it is far from clear that the republic for which it stands even exists any more. The United States of American today bears almost no resemblance to the United States that I grew up in and have lived in my entire life since I was five. I used to be proud to call myself an American, but now I am ashamed. I used to feel like I knew this country, but I barely recognize it today. Today we escaped the loss of birthright citizenship by one vote. Tomorrow we may, by the same one vote, be forced to swear a loyalty oath if we want to keep our ctizenship. To what? To anything the Court decides. To the nation. To the flag. To the Dear Leader.
Here is the oath I am willing to swear: I pledge allegiance to government by the people, of the people, and for the people, to representative democracy, to the rule of law rather than the rule of man, to individual freedom tempered by social responsibility and duty to care for our fellow humans, to the apparently not-so-self-evident truth that all men and women are created equal, and ought to be endowed with certain inalienable rights, one of which is the right to dissent without fear of retaliation by the State.
If the United States of America wants to revoke my citizenship (or even just my travel privileges) for standing up and saying that, then it is manifestly no longer worthy of anyone's allegiance.
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