Pre- & post-citizens

Americans cherish their citizenship. Yet they have all but lost it. The erosion of the citizen is insidiously accelerating in two quite different directions. It seems as if we are reverting to tribal pre-citizenship, in the manner of clan allegiances in the centuries before the rise of the Greek polis and the seventh-century-B.C. invention of the concept of the citizen (politês). Or perhaps the better comparison is to the fifth-century A.D., when northern nomadic ethnic bands crossed the Rhine and Danube and replaced the multiracially encompassing notion of “civis Romanus sum”—“I am a Roman citizen”—with tribal loyalties to fellow Goths, Huns, or Vandals.

In particular, a regression to a state of pre-citizenship can be seen in the conflation of mere residence with legal citizenship. Whether they feel particularly American or not, those who happen to live within the borders of the United States (legally or not) increasingly enjoy almost all the same rights as those Americans who were born here or were naturalized. In addition, multiculturalism is retribalizing America, in the manner of the fragmentation and evaporation of the Roman Empire. Millions seem to owe their first loyalty to those who share similar ethnic, racial, or religious affinities rather than to shared citizenship, common traditions, and collective histories that transcend race, creed, and clan. And the middle class, the classical foundation for citizenship, is also eroding as a medieval society of lords and peasants returns, especially in progressive states like California.

On the more privileged end, we are paradoxically entering an age of post-citizenship. Our alleged elites, mostly on the two coasts, often prefer to envision themselves as “citizens of the world” and, consequently, see their Americanism as passé.

On the more privileged end, we are paradoxically entering an age of post-citizenship. Our alleged elites, mostly on the two coasts, often prefer to envision themselves as “citizens of the world” and, consequently, see their Americanism as passé. They prefer to respect the authority and reputation of transnational organizations rather than American legislative bodies and jurisprudence. Certainly, the protocols of the European Union earn more respect from many members of our professional classes than does the U.S. Constitution’s Second Amendment.

Moreover, many of the freedoms enshrined in the Bill of Rights have already been radically curtailed by our current “cancel culture,” which is supported by the demons of social media, the administrative state, the courts, and popular culture. An individual citizen’s right that is legally protected is often practically impossible to enjoy. More formally, there is a concentrated academic, legal, and legislative effort to alter the Constitution, or at least to jettison abruptly decades of American legal and political traditions in the name of equality and at the expense of freedom and liberty.

Currently there are over five hundred so-called “sanctuary cities” inside the United States, in which federal immigration law has been rendered all but null and void. Those who have violated federal law and resided without legal sanction, who are then arrested and charged with crimes, are protected from federal immigration enforcement and are not subject to deportation. This current annulment is somewhat similar to the nullification crisis of 1832–33, when South Carolina arbitrarily declared federal tariff laws non-binding within its own state jurisdiction—before backing down under threat of force by President Andrew Jackson.

The rationale of the sanctuary city is not politically neutral or apparently applicable to issues other than illegal immigration. No sanctuary entity, for example, would support similar nullifications of federal law by conservatives should they declare particular red counties exempt from the federal Endangered Species Act, or their citizens not subject to federal handgun background checks.

Some twelve states now issue driver’s licenses without much effort to check legal residence—and thereby come into conflict with federal laws governing necessary identification criteria to pass security checks before boarding U.S. airline flights—with the result that many such states must now issue super-“real” driver’s licenses that require additional proof of U.S. citizenship or legal residence to obtain. When I taught at California State University, Fresno, one of the strangest experiences was hearing complaints from out-of-state U.S.-citizen students who paid three times the tuition of California-based non-citizen residents, most of them residing in California without legal status. Most states do not distinguish between residents and citizens in allotting social services.

Already two of those three pillars of citizenship have eroded.

Three centuries of gradually accumulated American jurisprudence, custom, and tradition had previously delineated important legal differences between the concepts of citizenship and residence, both legal and illegal. Only citizens and legal residents could live inside the borders of the United States indefinitely. As a practical matter, since the 1920s only citizens have been allowed to vote in local and national elections. And in 1952, the federal government mandated the possession of a U.S. passport to leave and enter the country without government permission.

Already two of those three pillars of citizenship have eroded. There are currently somewhere between eleven and twenty million illegal aliens residing in the United States without legal sanction. Some have been given amnesty and others de facto exemptions from deportation. The number is increasing. Also becoming more prevalent is the notion and practice that legal citizenship is not particularly necessary to live indefinitely inside the United States, to obtain legal identification, to qualify for state and federal social services, or to cross at will U.S. borders without legal permission.

Aside from the fact that state “motor-voter” laws—which tie voter registration to the possession of a driver’s license—often are deliberately blurred or lax enough to allow ballot-registration forms to be sent to illegal aliens, non-citizens have also been given the rights in some jurisdictions to vote in municipal elections, a trend that is likewise accelerating. Illegal aliens legally can vote in local San Francisco school board elections, and a number of other cities have voted to follow suit. And the trend is gaining strength.

In other words, we are returning to nineteenth-century practices, when the westward expansion of the United States, coupled with commensurately small state populations, often meant that there were no enforceable borders. On the relatively empty frontiers, few cared to ascertain the legal status of residents. But whereas in the distant past demography explained legal laxity, today the explanation is politics—or, rather, the doctrine of radical equality of result that seeks to erode any discriminating criteria concerning those residing in the United States.

Salad-bowl multiculturalism has replaced melting-pot multiracialism. The reason why the former Harvard Law School professor Elizabeth Warren and the former University of Colorado professor Ward Churchill both faked Native American identities was to find the easiest and quickest way to enhance their respective career advancements. They correctly assumed that employers would favor, or be forced to favor, those who identified as “hyphenated Americans” in general, and in particular those with minority ancestry.

Over the last thirty years, but especially during the Obama years, the concept of affirmative action gradually gave way to the notion of “diversity.” The former doctrine had originated as a means to “level the playing field” and give African-Americans an edge in college admissions and hiring on the theory that the toxic legacy of slavery and Jim Crow required such reparatory remedies.

But once affirmative action was extended to other minorities without the clear historical grievances of blacks, the floodgates of racial and ethnic preferences were open. Such an amorphous term as “Latino” or “Hispanic” could include rich South Americans or indeed Spanish immigrants, as well as recently arrived Mexican citizens who had never experienced any American discrimination by virtue of never having resided inside the United States at all.

Class as proof of disadvantage was largely forgotten—as if the children of Attorney General Eric Holder or Jay-Z were less privileged than the impoverished offspring of an unemployed white Appalachian coal miner. Given that many Hispanics were superficially indistinguishable from the white majority, some sought to add accents to their names or change to Spanish spellings (Johns rebranded as Juans), and to create hyphenated names, all in an effort to reestablish privileged minority status. How odd that whiteness was claimed to offer intrinsic advantages, even as millions of Americans were finding ways, even if superficially, not to be labeled as white. And yet privilege and advantage were precisely what an apparently too-white Elizabeth Warren sought with her constructed Native American identity.

During the Obama administration, the notion of “diversity” de facto abolished the two former assumptions of affirmative action: proof of prior or ongoing discrimination and economic disparity. More practically, diversity redefined the American body politic. Those who were now “diverse” encompassed almost anyone who claimed to be not white, however that amorphous term was defined. Diverse now included wealthy Asians or Cubans, and a host of other groups heretofore not considered oppressed minorities. And the new diversity comprised nearly 30 percent of the population, with assumed historical complaints against the white majority—a new binary that sometimes required the resurrection of the pernicious “one-drop” rule of the Old South to maintain such a huge constituency. Those with one-quarter, one-eighth, or one-sixteenth non-white ancestry often applied as minorities for jobs and university admissions.

Previous cultural differences in language, food, fashion, art, and music had enriched American life, but as subsidiaries to, rather than replacements of, the core of American citizenship and tradition and history

Previous cultural differences in language, food, fashion, art, and music had enriched American life, but as subsidiaries to, rather than replacements of, the core of American citizenship and tradition and history. Now, diversity offers entire parallel and separate anti-Constitutional paradigms. Some students have begun to be housed on campus in race-specific houses. Others can select their potential roommates on the basis of race. “Safe spaces” have been reserved for students on the basis of race or sexuality. Standards of proportional representation are applied to hiring and admissions, and “disparate impact” theories find insidious racism even without the supporting evidence of actual victims. As Heather Mac Donald wrote in this magazine two months ago, Asian-American citizens certainly have fewer constitutional rights of due process and non-discrimination when applying to Ivy League schools than do Latino-Americans or African-Americans.

Since the American founding, citizenship also assumed an active independent voter to elect representatives and ensure that the rights of the Constitution were protected. The Founders saw citizenship as nearly synonymous with a vibrant middle class, which at the origin of America comprised mostly independent and autonomous small farmers—a theme prevalent in Thomas Jefferson’s reflections on the Constitution and the works of Crèvecœur and Tocqueville. Yet this additional pillar of citizenship likewise is slowly being diminished, resulting in a pre-citizen landscape of two rather than three classes.

Small farmers are now all but nonexistent, but their middle status after the Industrial Revolution had been absorbed by blue-collar workers and suburban wage-earners. Buying a home, being able to meet a manageable mortgage payment, attending college without crushing debt, and enjoying upward mobility were all considered central to avoiding a two-dimensional medieval society. Yet by most benchmarks, the framework of the middle class is eroding, as evidenced by rising mortgage costs as a percentage of family budgets, $1.5 trillion in aggregate student debt, and, until 2018, stagnant family income and workers’ wages.

The result has been the gradual expansion of a large underclass that looks to government for redistributive justice, and a much wealthier elite who never seem subject to the ramifications of their own progressive bromides. The shrinking middle lacked the romance of the distant poor and the appropriate taste and culture of the rich, and thus was often caricatured as greedy, materialist, and needing of instruction on race, class, and gender.

If the foundations of citizenship are being undermined, so too are its superstructures. Globalism started out with the spread of quasi-capitalism that introduced Western modes of production to the non-West and harmonized the world through technological breakthroughs in transportation and communications. As a result, many of the over seven billion residents of the planet can now call any other instantaneously at reasonable costs, communicate electronically, or within twenty-four hours travel between any two major cities.

But economic homogeneity and global connectedness soon led to the utopian idea of commensurate political uniformity. And here was the problem: while America spearheaded the global wealth creation, its unique constitutional system certainly did not become the model for political emulation. In Europe, the French Revolution and the non-democratic autocracies and state bureaucracies that followed it became more of a blueprint for the European Union than the U.S. Bill of Rights and Declaration of Independence did. Poorer nations now look to richer Western systems that emphasize redistribution rather than those that emphasize equality of opportunity. Predictably, transnational institutions like the European Union, the United Nations and its affiliated commissions, the World Bank, the International Monetary Fund, and a host of others devoted to human rights, environmental protection, international commerce and trade, and health and welfare, became politicized. They insist on share-the-wealth policies and redistributive justice contrary to the U.S. Constitution.

In the twenty-first century, America began to relearn that the laws of its republic do not function on autopilot but must instead be carefully nourished and protected in the most practical of ways. The rise of the “cancel culture” of social media, an electronically charged lynch mob that is activated in a nanosecond, means that both individuals and businesses deemed politically incorrect can be threatened with ostracism, boycotts, censure, and ruin.

For example, if rural citizens cannot find ammunition for their legal firearms due to ammunition-selling businesses’ fear of censure, the Second Amendment can be rendered de facto irrelevant in places. In theory there is free speech on campuses; in fact, both students and professors accept that unpopular views voiced on issues such as abortion, affirmative action, or global warming can endanger grades and careers, respectively.

Given that federal prosecutors win or plea-bargain about 95 percent of their cases, any high-profile individual can be threatened with indictment and must then weigh the cost of a legal defense versus negotiation and avoidance of trial. Carter Page, a minor and temporary Trump campaign official in 2016, was surveilled by the U.S. government though the politicization and abuse of the fisa court warrant process, repeatedly interviewed and harassed by federal agents to leverage incriminating evidence against his employers, and yet never charged with a crime—a result that became apparent only after Page was forced to spend tens of thousands of dollars in preemptive legal fees. The so-called administrative state—whose investigators, auditors, and regulators are armed with unlimited legal resources and virtual lifetime job security but often lack much knowledge on how the private sector works—can all but ruin individuals and business concerns.

The list of proposed changes to both the Constitution and long legislative custom and practice that have been ratified and upheld by the courts is nearly endless.

But postmodern citizenship is also more than a matter of adopting global norms in preference to U.S. customs and traditions, or using pressure groups to deny citizens their full protection of constitutional rights. There is currently a multitude of academic, legal, and political efforts to change either the U.S. Constitution or the custom and practice of the federal government. The common denominator in all these progressive and media agendas, both informal and legal, is the curbing of individual liberty and freedom as the necessary price to ensure an equality of result among all residents.

Furious that the current Supreme Court errs on the side of the individual rather than the collective interest? Then seek to resurrect something akin to Franklin Delano Roosevelt’s shameful 1937 effort to pack the court by increasing the membership beyond the current nine justices. Or intimidate sitting justices by threats of mandatory retirement.

Upset that George W. Bush and Donald Trump both won elections without a majority of the national popular vote? Then seek either to disband the Electoral College or to pass state laws requiring a state to pledge its electors to the winner of the popular vote rather than to reflect the will of the majority of voters within a state.

Is it fair to have two conservative senators from Wyoming, who each roughly represent a quarter-million voters, while their liberal counterparts from California each speak for twenty million? Then seek to turn the U.S. Senate into something analogous to the House of Representatives, where congressional offices reflect national demography.

Do too many states vote conservatively? Then use the courts or the state legislatures to reduce the voting age to sixteen, abolish restrictions on voting rights for felons and ex-felons, and end requirements to show identification at the polls.

The list of proposed changes to both the Constitution and long legislative custom and practice that have been ratified and upheld by the courts is nearly endless. The effort is twofold. One aim is fundamentally to transform and recalibrate the American republic to resemble a Jacobin sort of democracy in which whatever a majority of residents on any given day prefers becomes law.

The other aim is to institutionalize politically the vast cultural and economic changes that are turning the United States into a bi-coastal culture of rich and poor, with a forgotten and hollowed-out middle in between. That is, to bring into the electorate the sixteen-year-old, the illegal alien, and the felon in order to change the nature of the voter profile to counter the legal, law-abiding, and mature citizen, who is under suspicion of voting incorrectly—a sin often defined as merely being in accord with the Founders’ visions of the republic.

The result is that the United States is becoming a country of pre- and post-citizens. If we wonder why illegal alien residents who commit felonies are rarely deported or must be deported repeatedly, or why few college graduates know much about the Constitution and American history, or why loud social-justice-warrior athletes so eagerly mouth Chinese platitudes about curtailing free speech inside the United States, or why the protections offered by the First and Second Amendments depend largely on where you work or live, one of the reasons is because American citizenship as we once knew it is becoming meaningless.

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This article originally appeared in The New Criterion, Volume 38 Number 5, on page 23
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