President Trump’s latest executive order is unconstitutional but it’s also redundant.
As the New York Times reports, President Trump “signed an executive order on Tuesday that will require proof of U.S. citizenship on election forms.” Of course, non-citizens have never been allowed to vote, and the president has no authority over elections. The Constitution assigns that responsibility to the states. The order is the latest example of what the Times describes as Trump’s “strikingly aggressive approach to power, moving swiftly to claim more authority and barrel through norms…”
But it is something more. It is another sign that the president is trying to change what it means to be an American. That is why the president’s order targets “foreign nationals.” It, and the president’s obsession with illegal immigration, are designed to change the way people in this country think of themselves.
Throughout our history, the meaning of being American has been tied to a particular understanding of our founding documents, especially the Constitution. Americans are bound together by what some have called a ”civil religion.” That is what the president’s words and deeds, like the executive order he signed earlier this week, threaten to destroy.
As NPR notes, “America, unlike some countries, is not defined by a common ancestry, nor is it tied to an official faith tradition. But it does have a distinct identity and a quasi-religious foundation.”
“The ‘self-evident’ truths listed in the Declaration of Independence and the key provisions of the U.S. Constitution and the Bill of Rights have acquired the status of scripture in the U.S. consciousness. Acceptance of this uniquely American creed is seen as the key to one's identity as an American.”
Or, as law professors Amy Chua and Jeb Rubenfeld argue, “Americans were to be united through a new kind of patriotism—constitutional patriotism—based on ideals enshrined in their founding document.”
This is not to say that this country has lived up to its creed or always put those ideals into practice. All too often, it has deviated from that creed’s most significant commitments. Our history is marked by many instances in which people’s inalienable rights have been violated or when they were targeted in spite of their adherence to and belief in our “civil religion.” But many of them have seen through and beyond those injustices. They had faith in this country and believed in its better angels.
The distinguished African-American historian Nicole Hannah Jones captures this in a story about her father. “My dad,” she says, “always flew an American flag in our front yard. The blue paint on our two-story house was perennially chipping; the fence, or the rail by the stairs, or the front door existed in a perpetual state of disrepair, but that flag always flew pristine.”
“So,” she continues, “when I was young, that flag outside our home never made sense to me. How could this black man, having seen firsthand the way his country abused black Americans, how it refused to treat us as full citizens, proudly fly its banner? I didn’t understand his patriotism. It deeply embarrassed me.”
What she only came to understand was that her father never lost hope for our “civil religion.” That hope and an awareness of the indispensable contributions of Black Americans to the realization of its promise, sustained him even as he suffered through failures of that promise.
“My father,” Hannah Jones writes, “knew exactly what he was doing when he raised that flag. He knew that our people’s contributions to building the richest and most powerful nation in the world were indelible, that the United States simply would not exist without us.”
I’m not sure the president understands the vision of America held by Hannah-Jones’ father. And if he does, Tuesday’s executive order shows his disdain for it.
President Trump treats the Constitution as a malleable instrument of his will while inviting us to accept a version of the American story that would push people like her father to the margins. That is because the president is uncomfortable with our “civil religion.”
His idea of what it means to be an American taps into an “’ethnic-nationalist’ tradition of American identity.” That tradition “is based on a set of criteria (including being white, Christian, native-born, and English-speaking) to define who is a ‘real’ American, and who is not.”
But, as Professors Eric Taylor Woods and Robert Schertzer report, “[E]ven though ethno-nationalism..(was) central to Trump’s campaign rhetoric, he tends to avoid explicitly referring to it.” Instead, they suggest, “Trump tends to heavily rely upon thinly veiled speech codes known as ’dog whistles’ to implicitly refer to them. This is what he is doing when he says he is standing up for the ‘silent majority’ and ‘forgotten men and women,’ or when he claims he will protect ‘suburban housewives’ from the threat of illegal migrants.”
That is why the first executive order of his new term was entitled, “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP.” It focused on birthright citizenship and defined it in ways that would not be recognizable to those who included it in the Constitution’s 14th Amendment.
And, as the ACLU points out, “it would strip certain babies born in the United States of their U.S. citizenship.” The legality of the president’s Executive Order is being challenged, and several judges have issued preliminary injunctions blocking it from going into effect.
As Chua and Rubenfeld rightly argue, “The core constitutional aspiration—in the 1780s, the 1860s, the 1960s, and the present—has been to create a tribe-transcending national identity…” and in that endeavor, “The significance of birthright citizenship cannot be overstated.”
If we are to resist the president’s effort to redefine what it means to be an American, we must not be taken in by pretexts that the nation is afflicted by fraudulent voting by foreign nationals. Tuesday’s order is just a trojan horse to help him carry on with his strategy of stoking fear of anyone who is not “white, Christian, native-born, and English-speaking” and rejecting the values and teachings of our “civil religion.”
