Terrorists running around cities waving the flags of Islamic terror groups could have easily been removed from the United States, even if they were born in this country, until the 1960s.
That’s when the Warren Court detonated one of the ‘bombs’ buried in the 14th Amendment.
The 14th Amendment, passed during a period of suspension of civil liberties and legal norms after the Civil War, was an example of why the Framers made it so difficult to add amendments to the Constitution and why adding them is usually a bad idea. Unconstitutional, punitive and sloppily written, the ticking time bombs in the 14th in just the past few years were exploited to try and ban Trump from running for office (Section 3), to allow Biden to bypass Congress on spending (Section 4) and to force women to compete against ‘transgender’ men (Section 1.)
But the biggest time bomb in the 14th Amendment was birthright citizenship.
The 14th Amendment had set out to end once and for all the debate about black citizenship that had been argued in cases like the Dred Scott decision by confirming citizenship for former slaves and their descendants. While Section 1 had set out to stop Southern states from suppressing black voters, its sloppy language created the entire civil rights industry and automatically made anyone born in the United States a citizen regardless of anything else.
The pregnant Chinese tourists coming to America to give birth and the illegal alien invaders who cross the border knowing that all they need to do is have a child in this country to become undeportable are the products of a fundamental misreading of the aims of Section 1.
While birthright citizenship is a problem, treason citizenship is an even bigger one.
Even long before the Cold War, laws had been put into place to cope with the unintended consequences of birthright citizenship by closely regulating denaturalization and expatriation.
Up until the 60s, serving in a foreign army, voting in a foreign election or plotting treason would result in the removal of citizenship from any citizen, naturalized or native born, then the ACLU, founded as a Communist front group, succeeded in convincing the Warren Court that the 14th Amendment also protected the citizenship rights of a Communist and of foreign allegiance.
Under decades of Democrat rule, denaturalization became a dead letter, occasionally used to remove immigrants who had committed war crimes, while not applying it even to open enemies. When Anwar Al-Awlaki, an Al Qaeda leader in Yemen, was droned, the Obama administration did not try going through the process of ‘expatriating’ the son of Yemeni immigrants.
The process of removing the Al Qaeda leader’s citizenship should have been straightforward under 8 U.S. Code § 1481 which states that a “person who is a national of the United States whether by birth or naturalization, shall lose his nationality” by such acts as “taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision”, “entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States” and “committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States.”
The evidence against Al-Awlaki (pictured above) was overwhelming from his own speeches and statements alone, but the Warren Court had ensured that these had to apply voluntarily and intentionally.
Anwar Al-Awlaki could not lose his citizenship by joining Al Qaeda and calling for the destruction of America unless he announced that he was doing this to renounce his citizenship. The manifest absurdity of this also means that every Al Qaeda, ISIS or Hezbollah Islamic terrorist can call for the destruction of America while his citizenship is protected by the Constitution.
This was not what the 14th Amendment, which specifically legislated (excessively) against insurrection had in mind. Rather than preventing insurrection, the Warren Court had twisted the 14th into protecting it, and not just by domestic enemies, but also by foreign enemies.
The Constitution made little mention of these things because the Framers had not been concerned with protecting the right to citizenship, but with the right to end citizenship.
The British doctrine of “Perpetual Allegiance”, common to all monarchies, held that no one could ever abandon citizenship. That doctrine was the difference between the self-conception of the Founding Fathers as patriots founding a new nation and the British monarchy’s conception of them as traitors. The Declaration of Independence took pains to challenge Perpetual Allegiance that a people have the right “to dissolve the political bands” making them founders, not traitors.
America was not built on the Perpetual Allegiance of one people to a dynasty, but the free-willed allegiance of individuals to a nation. Citizenship had to be by choice and its allegiance could not be free unless it could also be broken. Expatriation, the abandonment of citizenship, was at the heart of the American Revolution during which a majority chose to become citizens of a new nation and a minority did not, and moved to Canada or back to England.
The 14th Amendment unintentionally restored Perpetual Allegiance. The Warren Court and other legal decisions asserted that everyone was a citizen unless they took specific action to opt out. And about the only ones who bother going through the process are trying to dodge taxes.
Anwar Al-Awlaki did not bother “making a formal renunciation of nationality before a diplomatic or consular officer of the United States” and so we could kill him, but not expatriate him.
Recently, Freedom Center Investigates learned that ‘Muhammad’ Tahir Javed, a Biden surrogate, Democratic National Committee deputy finance chair, and top Biden bundler who had “raised over $2M for the Biden Harris transition team”, had become a Pakistani cabinet member.
On the other side of the political aisle, Mehmet Oz, a Turkish national, had become the GOP nominee for the Pennsylvania Senate seat in 2022, and rather than giving up his citizenship in an Islamic terrorist state, had suggested that he might not participate in classified briefings.
The enforcement of 8 U.S. Code § 1481 would have stopped this kind of behavior along with the mobs of terrorist supporters waving Jihadi flags rampaging around American cities.
Article 1 Section 8 clearly empowered Congress to “establish an uniform Rule of Naturalization”. Congress, after much debate, failed to act until much later, when under a reign of leftist terror in the late 19th and early 20th centuries, it used those powers allocated to it by the Constitution to clarify the terms under which American citizens, both native-born and naturalized, might lose their citizenship by aligning with enemy powers and trying to destroy America. The Warren court rolled back this measure to protect Communist activists from Cold War era crackdowns.
Like much of the fallout from the Warren court’s various unconstitutional decisions, the current state of affairs of denaturalization and expatriation remains a self-contradictory mess.
The Warren court’s absolutist position that Congress has no right to remove citizenship under any circumstances because of the 14th Amendment (even though the 14th Amendment was meant to prevent states from treating former slaves as non-citizens) is not actually the case because denaturalization is still occasionally implemented for war criminals. If ex-Nazis and others who lied on their immigration forms can be denaturalized for committing fraud, then Congress still has the power to strip away citizenship from particular individuals.
But even the “constitutional right to remain a citizen” supposedly created by the 14th Amendment according to the Warren court does not preclude the removal of it when appropriate on the basis of individual actions. That is how the First Amendment is implemented in prisons.
The failure to clarify and pursue expatriation has been a legislative and judicial failure.
After 9/11, the federal government and the conservative judiciary should have intelligently dissected the obvious contradictions from that era and revamped a workable denaturalization and expatriation policy. Instead the same system that tried and failed to uphold treating enemy combatants as such hardly even bothered to bring back comprehensive expatriation reform.
The Islamic terrorist supporters rioting in our cities are the result of these post 9/11 failures.
The legal basis for deporting non-citizen terrorist supporters is fairly straightforward and needs to be implemented immediately, but there is also an accompanying need to address the growing number of ‘enemy citizens’ residing in this country. Generations of open borders and mass migration has made it possible for many Islamic terrorist allies to be born in this country.
Birthright citizenship and treason citizenship remain major obstacles to securing the nation.
While the birthright citizenship problem posed by the 14th Amendment is not as easily dealt with, the legal infrastructure to deal with treason citizenship is already in place. What is needed is the will to deal with it before terrorist supporters stop being a minority and become a majority.
{Reposted from the author’s blog}
