John Roberts made an earnest, scholarly effort to deal with birthright citizenship, but on this eve of July 4th, he found himself saying some staggering things at odds with the Declaration of Independence and the regime it brought forth. For he proclaimed that “citizenship, then [at the Founding] was the right to have rights.” That is nothing less than a heresy, an inversion of the moral premise of this political order. As the Declaration said, this government was brought forth to secure those rights that flow to us by nature as human beings. We had rights then before we formed this government. And our citizenship would then hinge on our willingness to sustain a government drawing its powers from the “consent of the governed.” The test of our citizenship is not simply that we obey the laws, but that we can give a reasoned, moral defense of that regime in which we would claim the standing of citizens.
I’ve often used that classic case of the visitor from London landing in New York. We assume that he has a right to be protected from a lawless assault on the street, without looking at his passport. His right to that protection as a human being does not depend at all on his citizenship.
We’re reminded also that, during the Civil War, Congress passed the Wade-Davis bill declaring that “every person who shall hereafter hold or exercise any office . . . in the rebel service . . . is hereby declared not to be a citizen of the United States.” Those men might have been natural-born citizens of this country, but they were willing to take up arms to overthrow an elected government of the United States. There could have been no more dramatic moral treason against a government based on “the consent of the governed.” President Lincoln, for odd reasons, neglected to sign that bill, but as the second Justice Harlan noted in Afroyim v Rusk (1967) Lincoln never affected to doubt the constitutionality of that bill. The Chief Justice’s slip here echoed the same fallacy offered by Chief Justice Warren in Trop v. Dulles (1958) when he found himself saying that “the expatriate has lost the right to have rights.” Perhaps this is the moment then to take our cue from Lincoln and use July 4th as the occasion to remind ourselves of the moral premises on which our own freedom rests.
Justice Alito reminds us, in his dissenting opinion in Trump v. Barbara, that those in the process of naturalization need to show reasons for becoming citizens. They need to take lessons in civics, but then also proclaim their moral adherence to this Constitution and way of life. Birth alone may have been one convenient marker, but it doesn’t rise to the level for creatures of reason having grounds for forming their governments and knowing their reasons to sustain them.
Justice Thomas offered a learned historical account in his own dissent, but Justice Alito provided the true skeletal logic that marks this problem of citizenship. And especially in a time of the gravest political stress with 2 million illegal aliens arriving between 2022 and 2023, bringing the total of illegal aliens to 14 million. What Alito leaves decorously unsaid was that this was no accident: that it described the longstanding practice of one of our political parties, seeing immense material gain in a posture of casting up barriers, as States sought to defend themselves, at every point, against a flooding of illegal aliens, overwhelming the public services.
To paraphrase my late professor, Leo Strauss, the majority of the Court may be fiddling while Rome is burning, though they may not realize that they are fiddling, or that Rome is burning.
