(This past week witnessed several important developments around immigration, including the 6-3 Supreme Court decision upholding birthright citizenship, as well as an “under-the-radar” stepping up of detentions, which doubled during the week ending June 30. Over the next several weeks we will cover both of these and dig into some of the underlying dynamics at the root of the critical battle around Trump’s fascist clampdown on immigration and the extremely high stakes around how—and with what outlook, understanding and strategy—it should be fought. This week we are focusing on the Supreme Court decision on birthright citizenship.)

What Is Birthright Citizenship?... And Why Is This Even A Question?

Last year the revolutionary leader Bob Avakian broke down this question in his social media message “The Trump Fascist Regime Must Go—NOW—before it is too late!” He said: 

Trump’s fascist rule, like Hitler’s before him, is a regime of horrors—and is completely illegitimate.

First of all, no matter how it comes to power, fascism is never “legitimate”: It is never “legitimate” to enforce a lawless dictatorial rule over people, trampling on essential rights, treating whole groups of people as less than human, and targeting vulnerable people for cruel and even murderous persecution.

In the very first days following his inauguration…, after officially swearing to uphold the Constitution of the United States, Trump openly defied and trampled on that Constitution: He issued an “Executive Order” that was in direct opposition to the 14^th Amendment to the Constitution, which establishes that everyone born in this country is a citizen of the country. This Amendment is not a “policy”—it is part of the Constitution itself. When this Amendment was passed, right after the Civil War, one of its most important purposes was to guarantee citizenship to former slaves; and, by its very clear language, this Amendment guarantees citizenship to everyone born in the U.S.

If Trump wanted to legally and Constitutionally change this—which itself would be a very bad, reactionary move—he could try to do so by following the procedures for amending the Constitution that are set forth in the Constitution itself. But that is just the point: Trump does not recognize any limits to his fascist dictatorship—not the Constitution, and not the laws or the rule of law and due process of law.

When the Supreme Court did agree to hear the case, many legal commentators just assumed that Trump would be decisively overturned. After all, this was “settled law”—no serious legal scholar thought there was anything to Trump’s argument. When the hearing finally came this past April, most commentators thought it would be a decisive vote, perhaps even 7-2 to uphold birthright citizenship. It’s worth noting, as one lawyer did in the April hearing, that even in World War 2 when U.S. citizens of Japanese descent were outrageously declared to be “enemy aliens” merely for being Japanese at a time when the U.S. was at war with Japan… even then the children born to Japanese people in the camps where they were imprisoned were still deemed to be citizens. 

So last week, given how undeniable the case for birthright citizenship seemed to be, when the vote came in and the Court upheld the citizenship rights of children born of undocumented people within the U.S., some people said it wasn’t a surprise that the Court ruled against Trump.

But it’s not so simple as that. For one thing, even a 6-3 vote on what should have been 9-0 is not good—it means Trump is only two votes away from getting the Court to go along with him. Not only that, it turns out that Justice Brett Kavanaugh voted to turn down Trump’s order on the basis that it violated a law passed by Congress—and NOT on the basis of the clear language of the Constitution itself. This is important: a constitutional amendment requires huge majorities in three-fourths of the state legislatures and a two-thirds majority in both the Senate and House of Representatives. A bill passed by Congress requires only a simple majority in both houses of Congress. So this kind of “concurring opinion” from Kavanaugh can be a way for a justice to “signal” the government on how to construct their argument so that he would vote for it, and also to indicate an easier path than trying to amend the Constitution per se. 

So, yes, this was a victory—but the increasing consensus is that this got a lot further than anyone expected and that birthright citizenship may have been settled legally for now, but remains “in play” politically. (An article by Amy Qin in the New York Times. “The Birthright Decision Was Surprisingly Close, Some Legal Scholars Say,” gives a good sense of some of the qualms lawyers and legal scholars feel about the decision.) Meanwhile, Trump definitely picked up on Kavanaugh’s signal and indicated some kind of move toward passing this in Congress.

People should remember how Trump’s original order was dismissed or pooh-poohed as grandstanding when he first came out with it, and how close it got last week. Then think what this would mean if it were to become law, in one form or another: the families that would be dismembered; the children who would be “stateless,” literally without rights—while still being subjected to the laws and dictates of the country; and people en masse sent back to places where they or their family members have been persecuted.

The Fascist Outlook That Drives This

This is not a minor matter for these fascists. Trump himself campaigned saying a whole range of disgusting things about immigrants, like “immigrants are poisoning our blood.” If you switch out Jews for immigrants, you have a literal Hitler quote.

For these people racism is not just something to cynically use in a campaign—it is a core conviction about what makes for a “strong country” able to confront global rivals, such as China. They see having a country as white and as Christian as possible to be a matter of survival and they intend to act—and have been acting—accordingly. The myths they evoke—of the “Crusader,” or the “frontiersman,” or the “trad wife”—as ridiculous and reactionary as they are, have the power to perversely inspire—as did Hitler’s invocation of German “supermen.” Therefore if children from what Trump & Co. call “shithole countries” are here as full citizens, it would dilute the identity that rests on this sick mythology. Even someone like the supposedly “cultured” J.D. Vance repeatedly claims that there are “heritage Americans”—supposedly special Americans who can trace their ancestry back to the American Revolution or Civil War and that they somehow have a “special claim” on citizenship.

In the weeks to come, revcom.us will get more deeply into this—getting into the under-the-radar ramping up of the ICE assault on immigrants; the deeper driving forces behind this and their roots in the capitalist mode of production; and the revolutionary way out of this.

For now we will close with the entire section from the Constitution for the New Socialist Republic in North America, setting forth the revolutionary policy and principles on immigration, citizenship and asylum that will guide the state power we aim to bring into being. This section gives you a full sense of the historic and present-day role of immigrants, the causes that have historically driven them here, and their role in the revolution to come; the New Socialist Republic’s stance toward citizenship for all who are here when victory comes (except for those who have committed war crimes) and the birthright citizenship that will be guaranteed in the future for all born here; the stance toward new immigrants and the means of integrating them into society; the stance toward those who seek asylum; and the orientation toward those who violate the laws regulating immigration. Read it… then think about today… and understand this other future really could be possible.

*******

Excerpt from Constitution for the New Socialist Republic in North America:
Article II. Section 3. H. Immigrants, Citizenship and Asylum.

Authored by Bob Avakian

1. Throughout its history and its development into an imperialist power, the United States of America depended on the exploitation, often in extreme conditions, of generations of immigrants, numbering in the many millions, who were driven to the USA as a result of oppression, poverty, war and upheaval. These immigrants—including those from Europe who came to the USA during the latter part of the 19th and the first part of the 20th century, or at least several generations of them—were also subjected to discrimination and demeaning treatment, although after a period of time many of these immigrant groups were integrated into the larger “white European” population in the USA and, on the basis of expansion and conquest by U.S. imperialism, and the spoils acquired in this way, many were able to rise from the ranks of the working class and poorer sections of the population and become a part of the “American middle class,” with a more or less privileged position in relation to especially the lower and more exploited sections of the proletariat and the masses of Black and Latino people and others concentrated, and forcibly contained, within the decaying and repressive confines of the inner cities of late imperial America. At the same time, and in a heightening way through the end of the 20th and the first part of the 21st century, as a result of the domination and plunder carried out by U.S. imperialism throughout most of the Third World in particular, and the devastation and massive dislocation that resulted from and accompanied this, great numbers of immigrants from Mexico and elsewhere in Latin America, as well as other parts of the Third World, were driven to the U.S., many of whom were not able to secure legal entry and consequently were forced to live in the shadows and remain vulnerable to extreme exploitation as well as to discrimination and to violence and terror carried out by the state and by mobs encouraged by reactionary policies, actions and statements of the government and government officials. And the ruling forces of the imperialist USA seized on this situation to further tighten control over, and unleash more terror against, these immigrants and to subject many of them to even more extreme exploitation, while whipping up a xenophobic and fascist anti-immigrant atmosphere.

The defeat and dismantling of the imperialist USA and its machinery of violent destruction and repression has radically changed this situation. In this revolutionary struggle, and its victory, large numbers of immigrants, as well as masses of Black people and other oppressed nationalities within the former imperialist USA, played a crucial role, and they can and must continue to play a vital part in the continuing transformation of society, and the world as a whole, as part of the backbone of the New Socialist Republic in North America.

2. At the time of the establishment of the New Socialist Republic in North America, all those residing within the territory of this Republic—with the exception of those who played a leading role in opposing the revolution which brought about the establishment of this Republic, and/or who may have been found guilty of war crimes and/or other crimes against humanity—shall have been accorded citizenship in this Republic, with the rights and responsibilities of citizens, in accordance with this Constitution. And, from that time forward, all those born within the territory of the New Socialist Republic in North America, as well as all those, wherever they are born, who have at least one parent who is a citizen of this Republic, shall be citizens of this Republic.

3. The orientation of the New Socialist Republic in North America is to welcome immigrants from all over the world who have a sincere desire to contribute to the goals and objectives of this Republic, as set forth in this Constitution and in laws and policies which are established and enacted in accordance with this Constitution. From the time of the establishment of the New Socialist Republic in North America, anyone residing outside of the territory of this Republic who wishes to enter its territory, and any such person wishing to become a citizen, or a permanent resident, of this Republic, must follow the relevant laws and procedures which have been established on the basis of this Constitution. Anyone who applies for asylum in this Republic and, through the relevant procedures that have been established for this purpose, is found to have been persecuted, or to have a well-founded fear of persecution, on account of having taken part in just struggles against imperialist and reactionary states or other reactionary forces, or on account of scientific, artistic, or other pursuits which have brought them into conflict with reactionary powers and institutions, shall be afforded asylum in the New Socialist Republic in North America, so long as they pledge to act in compliance with the Constitution of this Republic, and do act accordingly. Provided that they do not engage in any serious violation of the laws of this Republic, people granted asylum have the right to remain within the territory of this Republic for as long as they choose to do so, and shall be accorded the same rights as citizens, with the exception that, so long as they have not become citizens, they may not vote in elections or be elected or appointed to public office. They shall have the right, after a certain period, determined by law, to become citizens of this Republic, with the same rights and responsibilities as all other citizens. The citizenship process, as well as review of the asylum status of all those granted asylum, shall be carried out in accordance with the laws and procedures established for these purposes.

4. Anyone who is discovered to have entered the territory of this Republic without following the relevant laws and procedures, shall be detained and provided with a timely hearing, conducted by the government institution with the relevant responsibility, to determine the reasons for their presence within this Republic. In connection with this process, such persons may apply for asylum or seek residency on some other basis, and these requests will be considered in the light of the basic orientation and principles set forth here. If, however, evidence emerges which would indicate that the person, or persons, in question have entered the territory of this Republic not only by means that are in violation of its laws, but also with the intent to further violate the law in an effort to carry out sabotage or otherwise do harm to this Republic and its people, then criminal proceedings shall be instituted against such a person, or persons, in accordance with laws and legal procedures established on the basis of this Constitution.

(pp 60-63)