Tuesday, November 29, 2016

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:

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.

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