Donald Trump Suggests Revoking Citizenship of Americans Who Engage in Constitutionally Protected Free Speech

Donald Trump is still more than a month away from taking the Oath of Office to become President of the United States yet he is already suggesting new ways to shred the protections set forth in the Constitution of the United States:

Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!

— Donald J. Trump (@realDonaldTrump) November 29, 2016

Plenty of other people have already pointed out that burning an American flag is a Constitutionally protected form of free speech, so I won’t belabor that point (though if the issue remains lively, perhaps I’ll come back and address the free speech implications including the late Justice Scalia’s view that flag burning is precisely the sort of speech that the First Amendment was intended to protect). What fewer people are discussing is Trump’s suggestion that the penalty might be “loss of citizenship”. That sort of thinking may be endemic to petty dictatorships or totalitarian countries but it is not how we punish people in America, especially for the “crime” of speech.

Yes, US law permits revocation of citizenship for a naturalized citizen (such as Melania Trump) for falsifying immigration and naturalization information (such as, perhaps, Melania Trump), refusing to testify about immigration information, for joining certain “subversive groups” (like the Communist Party, but apparently not the “alt-right”)*, or for being dishonorably discharged from the military (after a court martial) when service in the military was the basis for naturalization. The law does not permit denaturalization for merely criticizing the government, a governmental policy, or an elected official; nor does the law permit denaturalization for engaging in constitutionally protected activity other than association with certain groups (and I haven’t researched how courts have interpreted that exception with the First Amendment’s right to freedom of assembly). In fact, the law does not even permit denaturalization for commission of a crime.

But here is the important thing: There is absolutely no constitutionally permissible procedure for the United States to revoke citizenship from a natural born citizen unless that citizen intentional actions steps to renounce citizenship (such as actually renouncing citizenship or swearing allegiance to a foreign power in lieu of the United States). Absent such an act by a natural born citizen, the United States can’t revoke citizenship. Think of it this way: The United States did not revoke the citizenship of Japanese-Americans interred during World War II; nor did the United States revoke the citizenship of Vietnam-era protestors or draft dodgers (hey, there, Donald!); nor did the United States revoke the citizenship of “communists” exposed during the McCarthy era or of domestic terrorists like Timothy McVeigh, Eric Rudolph, or the Unabomber). And we certainly didn’t revoke the citizenship of people who exercised their First Amendment rights to criticize the American government, American policy, or American leaders (such as, for example, Donald Trump).

The very suggestion of revocation of citizenship as a penalty for … well, for anything … should terrify Americans. If revocation of citizenship is appropriate for flag burning (presuming it wasn’t constitutionally protected free speech), then for what other activity might revocation of citizenship also be appropriate? Engaging in an illegal protest? Giving support to a group or country deemed “bad” by the United States (such as Cuba or Venezuela or … Russia)? What about refusing to recite the Pledge of Allegiance, kneeling during the singing of the Star Spangled Banner, or saying that you are “ashamed” of America or that the President “is not my President”? Are those offenses for which revocation of citizenship should be contemplated as an appropriate penalty? All of them seem similar to burning the flag, don’t they?

And what about those of us who refuse to raise our arm at the proper 45° angle while chanting “Heil Trump”? Will our citizenship be revoked? Yes, obviously, that is an extreme example, but the point remains that an elected leader who even suggests using revocation of citizenship as a penalty, especially as a penalty for engaging in core constitutionally protected free speech is just the sort of demagogue for which those sorts of remote examples are exactly appropriate. It is often said that “dissent is highest form of patriotism” (often falsely attributed to Thomas Jefferson), yet Donald Trump is threatening revocation of citizenship for a certain type of dissent with which he disapproves. Of course if we only permitted “approved” forms of dissent, it wouldn’t make for very good dissent, would it?

Donald Trump will soon swear to protect and defend the Constitution of the United States of America. It would help if he had some tiny glimmer of what the Constitution says, what protections it provides, and why those protections exist. In a democracy like ours, we don’t punish people for dissent; we don’t punish people for criticizing their government; and we certainly don’t punish people by revoking their citizenship. So which parts of the Constitution will Trump defend?

We need to keep pointing out just how little Trump knows or cares about our democratic institutions and how outrageous some of his discriminatory and undemocratic ideas are so that, perhaps, his supporters will understand both the mistake that they’ve made in electing him and the fear being experienced by many minority communities and other detractors.

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*The law provides that naturalization can be revoked if a person within 5 years after being naturalized becomes a member of a group that would have precluded naturalization in the first place. Those groups are defined as:

(2) who is a member of or affiliated with (A) the Communist Party of the United States; (B) any other totalitarian party of the United States; (C) the Communist Political Association; (D) the Communist or other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state; (E) any section, subsidiary, branch, affiliate, or subdivision of any such association or party; or (F) the direct predecessors or successors of a ny [sic] such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt…

Query why the Communist Party is specified but groups like al-Qaeda, ISIS, or certain non-totalitarian white nationalist parties (like the KKK) are not included.

My Friend Died Yesterday; Her Name Was America

It is very difficult to describe the depth of my pain and sorrow this morning. I have long thought of America as an ideal, imperfect, but always striving to be that more perfect union. A land where the petty hatreds that have torn at the fabric of humanity for millennia could finally be laid to rest as all people would be treated equally and with dignity, a land where people could choose to live according to the dictates of their faith (or lack thereof) with the respect of their neighbors, and where people of all races could mingle knowing their differing values and views, traditions and hopes, would be welcomed to the giant melting pot. Where e pluribus unum was more than just an old motto carved into monuments.

And I know that some of those who voted for Donald Trump share that ideal.

For years, beginning when I was in junior high school and continuing through the present, in one capacity or another, I have worked to help further that vision of America and to help bring about the promise of equality and an expansion of civil rights, whether with regard to religion, race, sexual orientation, or any of a host of other categories. And, since the very beginning of 2008, I’ve written this blog. I’m pretty certain that if you go back and read about the issues on which I’ve written, you’ll discover my passion for equality, dignity, and civility has been a consistent theme. I’m sure that from time-to-time, my anger or frustration, have gotten the better of me, but I’ve strived to offer people an opportunity to engage me in civil discussion over important issues, at the core of which are the rights and dignity of all Americans.

I understand that people were angry with how the system was working (or not working). I understand some people felt dislocated by the transition in the economy from manufacturing to services and tech. I understand that some people felt left out by globalization and other rapid changes in our economy. And I certainly understand that many people feel as if their voice doesn’t matter because of the influence of money and special interests in our political system. I get that. And I get that not everyone who voted for Donald Trump did so on the basis of animus for those who don’t look or think the same way that they do.

But last night, I seemed as if nearly 60 million people told me that all of the ideals that I’ve worked for, all of those ideals that I hold at the core of what our country is supposed to represent — supposed to be — didn’t matter. They told me that they don’t care about equality for the LGBT community. They told me that they don’t care about voting rights for African-Americans. They told me that they don’t care about splitting up immigrant families or the harm to undocumented immigrants for whom America is the only home they’ve ever known. They told me that they don’t care about the plight of those fleeing civil war and horrific brutality. And they told me that they don’t care that they are aligning with those who view me as a subhuman who should be led to the gas chambers with my family because I am a Jew. Excuse me, I meant to say (((Jew))).

So when I woke up this morning and reflected on the election, I had to consider something that others have told me from time-to-time: This isn't really my country. I can only wonder if some see this as only as “their country” which they have now “taken back” from “the other” while allowing those who don’t fit into the majority cohort to stay here as something … well, something less. It is a country that belongs to its white, Christian majority that has tolerated the presence of Jews, Muslims, and others, has grudgingly granted something approaching equality to people who aren’t white, and which is reluctantly grappling with the question of what to do with the fact that there are homosexuals (and transgender people) in our midst. But I now understand, more so than I have previously, that the minority communities of America are not, at least to a large swath of the population, “real Americans”.

Please understand that I'm not suggesting and don't believe that all of the people who voted for Trump are racists, anti-Semites, xenophobes, misogynists, bigots, or the like. But I am extremely troubled that those people chose to ignore or forgive those traits when they cast their vote. A vote for Trump may not, in and of itself, represent racism and its associated bigotries, but it did validate Trump’s racist views and the views of the alt-right, KKK, and the like. Those votes told Trump that his use of racism and bigotry was a winning tactic and, as such, will likely persist and increase in the American political lexicon and playbook. And it emboldened those who viewed him as giving voice to what they perceive as an embattled white (and, in particular, white Christian) America.

So after this election, how do you look at your gay cousin who must now worry that his newfound equality (still a work in process) will be stripped away, his marriage nullified, his adoption of a baby reversed? How do you look at your Muslim colleague who wants nothing more than to live in peace with his neighbors now that he knows that a huge swath of his country and his President-elect think he is a terrorist who hates America and intends violence upon us? How do you look at your Latino co-worker who worries that her mother may be deported or that she cannot serve as a judge simply because of her heritage? How do you look at your African-American acquaintance who worries that her husband or child will be shot by police for driving without a broken brake light? How do you look at your Jewish friend who heard vicious anti-Semitism from Trump supporters, such as exhortations to put America's Jews into gas chambers?

Perhaps it's because far to many of you have no gay cousins, Muslim colleagues, Latino co-workers, black acquaintances, or Jewish friends, most likely because our society has become so bifurcated and polarized and “those people” live only in the “blue” urban areas that seem foreign and alien to you. Perhaps you don't see those people as being your friends, of being real Americans, of being human and entitled to the same dignity you expect for yourself. I don’t think Donald Trump’s presidency is going to make minorities feel more a part of our society or make you think of them as being more American.

But even if you don’t really care about the gay cousin, Muslim colleague, Latino co-worker, black acquaintance, or Jewish friend, how do you look at your daughter who now knows that you can forgive the admission of sexual assault, use of terms like "pig" and "bimbo", serial philandering, and pussy grabbing? And how do you explain to your son that the things that his President brags about are unacceptable … but that you voted for him anyway?

To me, America was both my country and an ideal; an ideal that I put years and years of effort into making more perfect so that all of us could live together in peace. Last night that ideal was ripped away.

Let me conclude with the hope that I expressed nearly a year ago, when I began to see the rise of Donald Trump as a serious candidate:

It’s time to recapture the idea of America from demagogues like Trump. It’s time to recapture the idea of an America in which competing ideas can be discussed civilly and in which the notion of a melting pot, of e pluribus unum, is celebrated. It’s time to put hate and fear aside in favor of efforts to make friends across barriers and to take the time to learn about others who may be different than we are. We can disagree on policies but recognize that we are all Americans who value the concept of America. We can disagree on those policies but learn to discuss them without hate or rancor, without viewing those with whom we disagree as the enemy or intent to destroy the idea of America.

But our democracy worked as designed. A minority of voters elected a racist, anti-Semitic, xenophobic, misogynistic, know-nothing, fascist.

I feel like a good friend died yesterday. Her name was America.

Would the “Bradley Effect” Help Clinton or Trump?

When looking at polling data and trying to extrapolate the expected results in an upcoming election, one thing that is often encountered has come to be known as the “Bradley Effect”. In 1982, former Los Angeles Mayor Tom Bradley was running for Governor of California. All of the polls showed that he was leading in the days leading up to the election. Thus, most everyone was surprised when Bradley lost. Essentially, what appears to have happened was that white voters told pollsters that they would (or had) voted for Bradley (who was African American), but when the votes were actually counted, Bradley did worse than expected due(apparently) to white voters who told pollsters one thing but did another. This phenomenon has been seen in other elections (almost always when one candidate is a minority).

So the question becomes whether the Bradley Effect might be in play in the 2016 Presidential election. And the follow-up question is, of course, who the Bradley Effect would help or hurt?

One view is that many people who plan to vote for Donald Trump don’t want to publicly admit that they will be doing so (or have already done so) because they don’t want to be labeled a “deplorable” or a racist, bigot, etc. It seems reasonable to believe that there could be many, many voters who would refuse to admit support for Trump for just this sort of reason. Similarly, I wonder about support for Trump among minorities who may be attracted to Trump’s immigration policies but who feel constrained –- by being minorities themselves -- not to be seen supporting someone who is criticized for his views about minority groups. I’m not so sure that other reasons why someone might lie about supporting Trump make as much sense or would account for too many voters. And I cannot begin to evaluate the idea that some men will proclaim support for Clinton only to decide that they really don’t want a woman as President.

Now the thing to ask yourself about these “hidden” Trump voters is whether they are telling pollsters that they are voting for Clinton, thus elevating her apparent support, voting for a third party candidate (in which case they will help Trump but not to Clinton’s direct detriment), or are included in the category of undecided voters.

Of course there is an opposite side to the Bradley Effect in the 2016 election.

Might some voters, especially women or young people, be telling pollsters that they are planning to vote for Trump because they are expected to do so based on race, locale, economics, or so forth. How many women, for example, might be planning to vote for Clinton -– either because she is a woman or because of Trump’s misogynist statements –- but don’t want to let those in their family and friend circles know because of the expected backlash they might expect? Imagine, if you will, the dinner table discussion in the home of a white, working class family, where neither the husband nor wife has a college education. In that situation, might one (or both!) of them be reticent to express support for Clinton or opposition to Trump because of concern about the spouse’s expected reaction?

It seems that passions are so high this electoral season, that it might not be surprising if people were hesitant to admit support for or opposition to one candidate out of concern about how they might be perceived by family and friends. And that hesitation might carry over in to responding to the questions of pollsters. It might even be seen in the exit polls that are reported on election night.

Two final anecdotes to add to all of this: Last night (Halloween), I sat on my driveway handing out candy to trick-or-treating kids. And I talked to parents who trailed behind their kids along the sidewalk. It was hard for them to miss the makeshift Clinton (and John Gregg for Governor) sign I’d put up in my yard (my “real” sign was stolen after being up for just five days). One man, who by application of stereotypes, I presumed would be a Trump supporter (remember, I live in a very red district), told me that he loved my sign and said that he wished that he had the “courage” (his word) to put up his own Clinton sign. What do you think he is telling pollsters, if asked? At the other end of the spectrum, another family saw my sign and told their child that she didn’t need to come up my driveway for candy. I guess they expected a Clinton supporter to try to poison their child, right?

Anyway, for two additional views on the subject, you might want to read both “GOP insiders: Polls don't capture secret Trump vote” and “How large is the “Secret Hillary Club”? Red-state women may be defying their Trump-loving husbands”.