It’s been fashionable to argue that the 2021 coup plot actually succeeded or, perhaps more accurately, never ended. Either way, the reality is that January 6 may have passed on the calendar but it is not done with us yet. What began on that day was much more than a mere attempt to overturn an election, it was actually a forcible rejection of the principles of democracy that arose out of the post–Civil Rights era. President Barack Obama used to suggest that his election was evidence that the United States was shaping into the “more perfect union” of its dreams. The latest election suggested that what we’re actually rounding into is a mafioso state ruled by a strongman and his affiliated oligarchs.
It makes sense that this battle should kick off with an insurrection. One of the most interesting things about the January 6 attacks is that they were something for which we, the people, had specifically prepared, writing into the Fourteenth Amendment language—which TNR’s Matt Ford described as “thunderous and unequivocal”—barring any person who had sworn an oath of office and subsequently gone on to engage in “insurrection or rebellion” from ever again holding federal office.
Instead, as Ford documented, the majority opinion took a much more severe and unprecedented approach to the problem, effectively applying a judicial line-item veto to the Fourteenth Amendment itself, thereby nullifying its use as an electoral fail-safe. The ruling, Ford wrote, “paves the way for insurrectionists to run for and hold federal office despite the Constitution’s categorical language that disqualifies them,” along the way deciding “questions that weren’t before the justices in this case in the first place,” and providing answers that “will only immunize these and future insurrectionists from potential consequences.”
Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be.
All of which would be perfectly consistent with Trump’s second-term agenda, in which he’s promised to transform the federal government into an instrument of personal revenge and roll back the rights and benefits that people and groups he disfavors currently enjoy. As TNR contributor Susan Rinkunas recently reported, much of this will come down in a battle to strip citizenship from people, and the Fourteenth Amendment will be under attack once again:
Those who are familiar with Wilhoit’s law—which holds that conservatism, in the words of Ohio classical music composer Frank Wilhoit—“consists of exactly one proposition.… There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect”—will recognize that Trump’s plans aren’t novel but rather stem from the primordial ideas that have long guided his party along its postmodern evolution into a haven for authoritarianism and oligarchy.
This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.
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