Who Counts as an American?
I listened to the oral argument on birthright citizenship & so many people on bluesky were just straight-up wrong.
E.g. people were saying that the mere Q of whether Native Americans are citizens due to birthright citizenship is racist… But Wang (arguing for the ACLU) says it is not birthright.
[image or embed]— Kate Sills (
[@katelynsills.com](http://katelynsills.com)
)
Even if the specific question isn’t racist, the project which led to yesterday’s oral arguments before the Supreme Court definitely is. My parents were not citizens when they had my sister and I in the 1970s. The 14th Amendment is why we have birthright citizenship. Dishonest arguments and political rhetoric are how “who is a citizen?” became subject to the whim of popular opinion rather than the 14th Amendment and 150 years of jurisprudence. Any and all arguments that the definition of birthright citizenship should be smaller than that definition are being advanced by people who want to return to either the pre-civil rights era caste system of this country’s history—or the pre-Civil War era one which drew the circle of citizenship around landowning white men and no one else. The rancid fruit of birtherism from the start of the Trump era fell from a tree with deep roots.
GORSUCH: Do you think Native Americans are birthright citizens under your test?
SAUER: Ah, I think … so. I have to think that through.
[image or embed]— Aaron Rupar (
[@atrupar.com](http://atrupar.com)
)
Gorsuch's question of whether or not Native Americans are birthright citizens was an obvious and predictable one. Sauer’s lack of preparedness to answer that question should be embarassing, if not a firing offense. But it lays plain the objective of Trump’s regime—to reinstate the caste system which existed in this country prior to the success of the civil rights movement. The question of whether or not invaded people want the citizenship of the invader—applicable to every Native American tribe as it is—also applies to the Hawaiian, the Virgin Islander, the Puerto Rican, the Samoan, and the people of Guam. I’m not a Spanish speaker, but the phrase “Hawaii no, no” during Ricky Martin’s segment of Bad Bunny’s halftime show seemed (to me) to refer to how Hawai’i became part of the United States and a possibly a wish for Puerto Rico not to be treated the same way (I learned later my guess was correct). Reading The Great Oklahoma Swindle and trying to fit it into the context of the broader history of the country, one conclusion I’ve drawn is that the treatment of Native Americans by the federal government was a key part of the template for how they would later treat people in the territories they conquered outside the United States.
What passes as history instruction to children in the United States has many gaps. Unlike the absence of teaching about the Great Migration (my experience of high school American history), we got a bit about the Spanish-American War involving “Remember the Maine" and a little bit about yellow journalism. What we didn’t get was the larger context of how much fighting the United States did with the kingdom of Spain, how many lands became U.S. territories as a result—and how citizenship became conditional or required legislation to become automatic. The rights and privileges the people in these territories have by virtue of their relationship to the United States vary significantly (just like that of Native American tribes). The Jones Act is one example of a law which interferes with the ability of Puerto Rico, Guam, Hawaii, and Alaska to directly import what they need—a significant and continuing problem for Puerto Rico’s full recovery from Hurricane Maria as visually-depicted in a different part of Bad Bunny’s halftime show. Another thing I learned from one of my Crucian (person from St. Croix, USVI) friends, is that you can be a U.S. national, but not a U.S. citizen. For some time after the U.S. bought what we now call the U.S. Virgin Islands from the Dutch, the people on the island were U.S. nationals. It took legislation to make them birthright citizens, just as it did for Native Americans. It may still be the case that people born in American Samoa are U.S. nationals, who can choose to become naturalized citizens once they become adults. The difference in rights and responsibilities between U.S. nationals and U.S. citizens still seems caste-like to me.
In any case, the heart of the matter is this: the executive branch is asserting the right to decide by decree who counts as an American and who does not. The objective of Trump’s regime is to do to non-white Americans within the bounds of the United States what has already been done to people in territories like Puerto Rico, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands—take away their political power and remove the duty of the state to treat them equally. The same Supreme Court who reportedly expressed skepticism of the government’s position during oral arguments has already acceded to Trump’s demands along these lines on numerous occasions. Not only did they grant cert to these specious arguments in the first place, they ruled 6-3 that lower courts couldn’t use injunctions to block nationwide enforcement of Trump’s birthright citizenship decree less than a year ago. What many of us now call “Kavanaugh stops” was the Supreme Court legalizing racial profiling by Immigration & Customs Enforcement, an obvious and egregious violation of both the 4th Amendment and the 14th Amendment to the Constitution.
So even if the Supreme Court rules against the executive branch as they should, they deserve no praise at all. Their prior rulings enabled an inciter of insurrection to appear on the ballot again in the first place. Their shadow docket rulings continue to enable Trump to sow chaos in the country and abroad. John Roberts (and William Rehnquist before him if we’re being fully honest) led the Supreme Court to legitimize numerous arguments which have resulted in non-white people being treated as "less than”. They’ve turned the court away from undoing the harms of the past to enabling old harms in the modern day—just as Chief Justice Roger Taney did in his day. The damage they have done still remains, even if birthright citizenship is spared for now. The long-term project of shrinking the circle of citizenship is very much still in progress. We should keep that in mind, even as we acknowledge the specific ways in which a question of citizenship might not be racist.