President-Elect Trump last night tweeted a proposal that persons who burn the U.S. flag should “perhaps” lose their American citizenship. Regardless of one’s views on flag burning as protected free speech, the specter of the government depriving Americans of their citizenship is terrifying and unconstitutional.
In Afroyim v. Rusk (1967), the Supreme Court held that U.S. citizens may not be deprived of their citizenship involuntarily. The Court’s decision was based on the Citizenship Clause of the Fourteenth Amendment. Ratified shortly after conclusion of the Civil War, that amendment states:
All persons born or naturalized in the United States … are citizens of the United States.
According to the Court, the “chief interest of the [Citizenship Clause] was the desire to protect Negroes.” Prior to the war, Dred Scott Case (1857) had held that African Americans were not citizens. That decision was a precipitating factor in the Civil War. After the war was concluded, the Citizenship Clause was written to “provide an insuperable obstacle against every government effort to strip Negroes of their newly acquired citizenship.”
The Court in Afroyim further explained.
In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship…. The very nature of our government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.
International law too recognizes this right against deprivation of nationality. Article 15 of the Universal Declaration of Human Rights (the Universal Declaration) states that “[e]veryone has the right to a nationality.”
The right to be a citizen of a state has been called “man’s basic right for it is nothing less than the right to have rights.” Perez v. Brownell (1958) (Warren, C.J., dissenting). A person with no nationality is stateless, unable to exercise full civil, political, economic, and social rights. Many stateless persons around the world are unable to obtain identity documents, and thus unable to acquire jobs, receive medical care, marrying and start a family, enjoy legal protection, travel, own property, gain an education, or register the birth of their children. If an American were deprived of U.S. citizenship, he or she would be an alien subject to deportation.
President Theodore Roosevelt coined the term “Bully Pulpit,” meaning use of the president’s influential position in American society as a means to push an agenda. Trump’s tweet is a grab for power – to deport U.S. citizens – that the Constitution has wisely denied to the government. Such use of the bully pulpit demonstrates ignorance of or disdain for the Constitution and American values.