Rolling Back Birthright Citizenship, Rolling Back Democracy

The Right’s recent attacks on birthright citizenship are a further step in their slide toward “postfascism.”

Former president Donald Trump speaks at a campaign rally on April 27, 2023, in Manchester, New Hampshire. (Spencer Platt / Getty Images)

In his book The Second Founding: How the Civil War and Reconstruction Remade the Constitution, historian Eric Foner contends that “we are still trying to work out the consequences of the abolition of American slavery. In that sense, Reconstruction never ended.” Neither has the backlash against Reconstruction, which has flared up recurrently with greater or lesser degrees of intensity since the 1860s. As the contours of the 2024 presidential election come into focus, it’s likely that one of the main legacies of Reconstruction — the guarantee of birthright citizenship contained in the Fourteenth Amendment — will become a major issue in the campaign.

Last month, Donald Trump vowed that he would scrap birthright citizenship for the children of undocumented immigrants if he wins the election. This week, Florida governor Ron DeSantis joined him in this pledge. According to DeSantis:

Dangling the prize of citizenship to the future offspring of illegal immigrants is a major driver of illegal immigration. It is inconsistent with the original understanding of the Fourteenth Amendment, and we will force the courts and Congress to finally address this failed policy.

It goes without saying that DeSantis is completely wrong that birthright citizenship drives undocumented immigration. All of the available evidence suggests that migrants come to the US in search of work or to escape violence and persecution, not to give birth to “anchor babies” and collect public assistance as in the average Fox viewer’s fever dreams.

Actually repealing birthright citizenship would require either a constitutional amendment or an act of Congress. The former is unlikely because of the extreme difficulty of amending the Constitution, the latter because it probably couldn’t pass both the House and Senate. Still, the fact that this is even being proposed at all by leading contenders for the presidency is deeply alarming. It is yet more evidence of the Republican Party’s commitment to rolling back the democratic conquests of the last 150 years. It is also further confirmation of its headlong lurch from “normal” conservatism to the politics of postfascism.

“Postfascism” isn’t simply an epithet for politics one doesn’t like. It has a specific habitus and a practical agenda organized around a particular conception of citizenship. The late Hungarian Marxist philosopher G. M. Tamás articulated this idea over two decades ago in a seminal Boston Review essay, “On Post-Fascism.” For Tamás, the sort of politics that was germinating in Central Europe then and that finds expression in the United States now bears continuities with the classical variety of fascism, while departing from it in important ways. According to Tamás,

Post-fascism finds its niche easily in the new world of global capitalism without upsetting the dominant political forms of electoral democracy and representative government. It does what I consider to be central to all varieties of fascism, including the post-totalitarian version. Sans Führer, sans one-party rule, sans SA or SS, post-fascism reverses the Enlightenment tendency to assimilate citizenship to the human condition.

The politics of Jörg Haider, Viktor Orbán, Donald Trump, and Ron DeSantis are fascistic, in this framework, because they aim at “cutting the civic and human community in two” through a fundamental rejection of universal citizenship. For Tamás, such hostility is “the main characteristic of fascism.”

This iteration is worthy of the modifier “post” because it “does not need stormtroopers and dictators. It is perfectly compatible with an anti-Enlightenment liberal democracy that rehabilitates citizenship as a grant from the sovereign instead of a universal human right.” Figures like Trump want the freedom to arbitrarily decide who is worthy of inclusion in the political community of the nation. One imagines him haughtily dispensing citizenship rights the way he tossed rolls of paper towels at desperate Puerto Ricans after Hurricane Maria. The attack on birthright citizenship reflects a reversion to ethnic, racial, and normatively sexual conceptions of citizenship in place of the civic egalitarianism that has defined the United States at its best moments.

The proposition that Trump, DeSantis, and the contemporary GOP represent a postfascist threat is still controversial on the US left. Corey Robin, for example, has argued that modern Republican politics is “almost the complete opposite of fascism” because of its synergy with the US constitutional order. He contends that “what fascism is about, above all else, is the politics of strength and will. That’s why fascists traditionally loathe the constitutional order: because they think it constrains the assertion of political will.”

But it seems odd to imply that Trumpism is not a politics of strength and will. From Trump’s pronunciamento that “I alone” can fix what ails America, to his followers’ fantasies of him as a muscle-bound, machine-gun-toting reincarnation of Rambo, to the prominent place of Oath Keepers and Proud Boys in the Trumpist coalition, the politics of strength and will — grounded in a reassertion of traditional, heterosexual masculinity — permeates today’s GOP. You can’t make sense of the Right’s transphobic panic without reference to it.

And successful fascists have always been willing to play by, and take advantage of, the rules of the constitutional game on the road to power. In The Anatomy of Fascism, Robert Paxton notes that Adolf Hitler and Benito Mussolini “shared none of the purists’ qualms about competing in bourgeois elections. Both set out . . . to make themselves indispensable participants in the competition for political power within their nations.”

Neither Hitler nor Mussolini came to power through a coup, but through bargaining with traditional conservatives amid an atmosphere of crisis their extraparliamentary actions helped to create. “Both Mussolini and Hitler,” Paxton reminds us,

were invited to take office as head of government by a head of state in the legitimate exercise of his official functions, on the advice of civilian and military counselors. Both thus became heads of government in what appeared, at least on the surface, to be legitimate exercises of constitutional authority by King Victor Emmanuel III and President Hindenburg.

One can easily imagine Trump or one of his epigones taking advantage of certain aspects of the existing constitutional order — say, our convoluted presidential election system — to win power in defiance of the popular will and to use the machinery of state to punish those who stand against them. In fact, you don’t even have to imagine it — we all saw them try to do it less than three years ago.

No political tradition remains static over time if it has any vitality at all. Historian David Broder, the author of two valuable books on Italy’s radical right, points this out in the context of the accession to power of Fratelli d’Italia, a direct descendant of Mussolini’s Partito Nazionale Fascista. As Broder describes it,

Postfascism is a movement rooted in historical fascism, but which simultaneously claims to have transcended it to have become a normal, national-conservative party. However, the fact that this tradition has persisted for 70 years does not mean it stayed the same. . . . Postfascism shares important characteristics with historical fascism: the same political culture, focus on the past, the use of history as a theme of identity. . . . But its political platform is not the same as in the era of revolution, social violence, mass mobilization and grand utopianism. It is a harsh identity politics and an ethnic conception of nationhood, but which it pursues within a liberal constitutional order and a (somewhat depleted) democratic framework. Even though there are also some more militant elements in its base that use political violence.

Broder is here describing the movement that produced prime minister Giorgia Meloni, but the description could, with minor modifications, just as easily be applied to today’s Republican Party. For that matter, a similar appellation, postsocialism, might be applied to the new left in the United States, which maintains many of the themes and cultural touchstones of earlier iterations of the socialist movement but lacks the mass character and utopian program of socialism’s classical era.

I used to think that analogies between Trump, the Republican Party, and fascism were wildly overblown. The Trump administration and everything it unleashed — topped off by its collusion with the violent attempt to overthrow the election on January 6 — disabused me of that notion. If anything, Trump’s open solicitation of right-wing paramilitaries and the “groyperfication” of GOP cadres raises the possibility that the “post” modifier may, at some point, end up being superfluous.

Birthright citizenship is one of this country’s most redeeming qualities, and it’s one of the enduring legacies of the Confederacy’s defeat. This is why the worst people in the country want to abolish it, and it’s why people of democratic conscience must unite to defeat them. The first step in doing so is to see what’s in front of our noses.