Mackenzie v. Hare

Hey y'all, it's Rhiannon.

This month, as we mark a year of genocide in Gaza, I want to let y'all know about a way that each one of us can help the people of Gaza right now who are still facing bombardment and starvation and forced displacement.

I am joining the call of the Palestinian Youth Movement, the U.S.

Campaign for Palestinian Rights, the Palestinian Feminist Collective, and many others to raise $1 million for the Middle East Children's Alliance, which is a non-profit humanitarian aid organization that delivers life-sustaining services to Palestinians in Gaza, even a year into the genocide, even in places in the Gaza Strip, deemed too dangerous for other international humanitarian organizations.

Since the beginning of the war, MECA and its partners have provided nearly 700,000 meals, 20,000 hygiene kits, 1 million gallons of water, and tens of thousands of warm clothes sets to my people in Gaza.

MECA also supports educational and mental health programming for kids.

I am never prouder to be Palestinian than when I've seen images of young children in Gaza, in like a makeshift classroom in a bombed-out building, and they're singing songs about the joyous future ahead.

So importantly for me, this isn't just about charity.

Donating to help MECA continue to do its work in Gaza right now is a way to support the continued steadfastness and resilience of the people of Gaza in the face of unspeakable horror, some of the worst humanitarian crimes of the modern era.

My people in Gaza remain unbroken.

So your donation means a hot meal, a warm jacket, a menstruation kit, which is to say it means the world.

You can make a donation at shutitown4palestine.org slash fundraiser.

That's shut it down and the number four

palestine.org slash fundraiser.

That link will be in the show notes.

Thank you to each and every one of you.

Free Palestine.

I'm doing everything I can to get you deported, Muhammad.

You don't treat someone like this that has brought you here.

Tails out to the judge.

Hey everyone, this is Andrew from Prologue Projects.

Leon is a way.

On this episode of 5-4, Peter, Rhiannon, and Michael discuss Mackenzie v.

Hare, a case from 1915.

The case centers around citizenship, specifically how easily it can be taken away.

In 1907, the Expatriation Act was passed, stripping American women of their citizenship if they were married to foreigners.

That law has since been overturned.

But this case still raises questions about what it means to have birthrate citizenship, the naturalization process, and how citizenship can be taken away.

And all this is relevant because Donald Trump is campaigning to end birthright citizenship for the children of some immigrants.

And of course, there's his promised mass deportation plan.

Former President Trump continues to take a tough stance on immigration, promising mass deportations and an end to birthright citizenship.

It's going to be called a Trump mass deportation because we have no choice.

We have no choice.

This is Five to Four, a podcast about how much the Supreme Court has always sucked.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have chased away our civil liberties, like Michael's dog chasing away a coyote.

That's right.

I'm Peter, and I'm here with Rhiannon.

Hey.

And Michael.

Yeah.

She chased away a coyote.

Unfortunately, she even chased it away from other people's yards.

She left my yard, chased it away from there, and then chased it out of another yard, and then another yard and then another yard.

And lost her collar along the way, right?

Lost her collar.

She lost the GPS collar so that you can find her when she loses her mind and chases wild animals.

That's right.

That's still missing, by the way.

Well,

I've located it, but it's in somebody's...

horse enclosure and they haven't been home.

I've driven by their house like eight times.

If they have security cameras, they're like, somebody's casing our house.

So this coyote chase between a domesticated dog and a coyote.

Named Cupcake.

It's important to understand that.

Who's 30 pounds?

The dog is named Cupcake.

This chase went through a horse enclosure in rural New Mexico, folks.

That's what we're dealing with.

She is a maniac.

She's an absolute maniac.

She's perfect.

Yeah.

I was talking to my neighbor and she was like, yeah, my dog was going crazy.

And I look out and, you know, this coyote, a big one, just comes running out of the yard.

And then right after it, there's cupcake.

She's like, I'm going to get that fucker.

I'm going to get it.

She believes in herself.

And I believe in her, too.

Yeah.

Yeah.

Yeah.

Today's case, Mackenzie v.

Hare.

This is a case from 1915 about citizenship and specifically about stripping citizenship from people.

Taking it away?

Yeah.

Yeah.

Record scratch.

In 1907, a law was passed called the Expatriation Act.

Among other things, that law stripped American women who married foreigners.

of their citizenship.

A woman who married a Scottish man was denied the ability to vote on that basis, and she challenged the law, claiming that it was unconstitutional to strip a natural born citizen of their citizenship without their consent.

But the Supreme Court said no,

it's okay

because you sort of consented to it by marrying a foreigner.

Yes.

Right.

A Scotsman.

You've debased yourself,

ma'am.

As we approach the next election, we wanted to do a string of episodes that add some color to what we think the world might look like in a second Trump term.

And we thought this case was a good jumping off point to discuss how fickle citizenship can be in a country when you have a

political apparatus eager to attack it and a judiciary willing to cooperate and what that might mean for Trump 2.0.

Yeah, this case is like blast from the past.

It's, you know, an older case.

We usually don't do these older ones, but it hearkens.

There's hearkening to this age.

A lot of things harken lately.

That's right.

So like Peter said, in 1907, Congress passed the Expatriation Act.

And so like just a little bit of historical context, not even hard context here, but historical vibes.

This is during a time at the turn of the 20th century.

This is during a time of like

figuring out what citizenship means, like natural born citizenship.

Like what, what comes with that?

What doesn't come with that?

What comes with being a naturalized citizen if somebody becomes a citizen and is not a natural-born citizen?

Are there differences there, right?

Also, you know, a vibe of being very afraid of the influence that another country's citizenship could have on a person, you know, not having a fully fledged out concept of the possibility of dual citizenship, all of this kind of stuff.

And underlying it, of course, is racism, is

sexism in this case that we're going to talk about,

you know, xenophobia, anti-immigrant sentiment, et cetera.

But luckily, we left all that stuff for you.

Right, right.

That's ancient history.

We have brought the lowly Scottish whites into the fold, and now they're just regular whites.

But, um, but you know, just as an example, a few decades before the 1907 Expatriation Act was passed, this was a prominent example in the news of like these questions around U.S.

citizenship for women in particular.

In 1874, Nellie Grant, this is the daughter of President Ulysses S.

Grant, married an Englishman.

And their wedding ceremony was like at the White House or something.

Like this was, you know, there was a big wedding, all of the things.

But they left the U.S.

to live in Great Britain after the wedding.

So at the time, British law said that a non-British woman would become a British citizen when she married a British man.

But wait a minute.

Does this mean she's a dual citizen then?

Does this mean she's American and British?

This was a massive controversy and question, right?

They could not conceive

that

maybe you could be a citizen of two places.

And honestly, no sympathy from me.

Like, you want to marry a Britishman?

Then you do have to leave the country.

That's what I think.

Yeah.

Yeah.

And also, this is like, this is not that long after the war for independence, right?

Like, this is the 1860s.

No, it's basically the same time.

Yeah.

I mean, there may have been people who had been alive for both events, right?

There was one extremely old guy who was like, fuck this.

Yeah.

No, that's what I'm saying with like the suspicion, right?

There's like still tension about what it means to be the United States,

a relatively new country, and like what it means to be a citizen of that place or a citizen of another place.

I feel like we had just learned to talk different, you know, than they do.

That the accent was a little bit different.

We had just figured out our own accent.

So, in Nellie Grant's case, it was determined that based on a prior law that had been passed in the 1860s, she did give up her U.S.

citizenship by marrying a British man, but also she had relinquished her U.S.

citizenship based on one other condition.

She married a British man and then left the U.S.

She no longer resided in the United States.

So that was kind of like the dispositive fact there, the reason why it was determined that Nellie Grant was no longer an American citizen.

But the question then of what happens to an American citizen woman's citizenship when she marries a non-citizen, but still resides in the United States, that's an open question.

Talking about this stuff, it sounds so crazy and antiquated.

But then I'm like, oh yeah, to move to Britain, it took like months on like a dangerous boat or whatever, right?

Like you might never be coming back to the United States.

Like very possibly never, ever returning.

It's so crazy, though.

It is, but I get it.

Yeah.

I get it.

Yeah.

I do.

Well, the other element of this is, of course, that the 14th Amendment, which refers to, you know, natural born citizens

had just been passed.

All right.

So

they were trying to sort out for the first time what it meant to be, you know, a natural-born or naturalized citizen, what the implications of that were.

Yeah.

And I want to be very clear before we turn to this open question that's left over and Ethel McKenzie's case, we are talking about a rule that only applies to women.

These are not laws that apply to men, to natural-born American citizen men who marry non-American women.

And so we'll talk about that in just a little bit as well.

Just want to make that super clear as we're moving through this.

Yeah.

And I mean, this is basically the property rights sort of view of marriage, right?

The woman sort of goes under the umbrella of the man and, you know, adopts his citizenship.

She's literally given away by her father at the altar to another man.

Right.

And the man could not possibly be subjugated by the citizenship of the woman.

Exactly.

That makes no sense, folks.

Yeah.

Yeah.

Right.

So turning to this case, Ethel McKinsey was born and raised in California.

She's a natural-born U.S.

citizen, lived her whole life in California.

And in 1909, she married a man named Gordon from Scotland.

And they resided in the U.S.

They never left the United States after their marriage.

Ethel McKenzie had never left the United States in her life.

In 1913, a few years after getting married, she applied for voter registration in California.

California, by its state constitution, had given the right to vote to women by this time.

This was not in the U.S.

Constitution yet, but as a U.S.

citizen in California, Ethel McKenzie believed and was exercising her right to register to vote, but California denied her that registration on the basis that, wait a minute, you married a foreigner, you relinquished your U.S.

citizenship.

You are not a U.S.

citizen anymore.

Yeah.

So Ethel sues, of course, the state of California.

That's how we get to the Supreme Court.

We got a quick and dirty five-page opinion

and we know which way it goes.

Yeah.

Yeah.

Before we get going, I just want to point out: imagine how crazy the Scottish accent was back in

the early 1900s.

Yeah.

Yeah.

It must have been full, like fat bastard, you know?

All right.

But Ethel was into it.

Ethel was like, yeah, this is, this is hot.

So Ethel McKenzie argues that she's a natural born citizen of the United States and that under the Constitution, her citizenship is a privilege that cannot be stripped away by Congress without her consent.

And what the court says

is essentially, yeah, it's true that we can't strip away the citizenship of a natural born citizen without their consent, but you married a foreigner voluntarily.

Yeah.

With knowledge of the consequences, and that's the same thing.

Now, we don't have to get into it that much, but this is just fundamentally bad reasoning, right?

Like, oh, it's awful.

By this logic, Congress can basically pass any law it wants infringing on the privileges of citizenship by just saying, like, if a citizen does X, then their rights are forfeit, right?

If Congress can just say you forfeit your citizenship if you touch your nose and the court says that's okay,

then citizenship isn't really meaningfully protected by the Constitution, is it?

Right.

And citizenship's just one of your privileges, right?

Like the whole Bill of Rights, what?

Congress passes a law that says if you marry a Haitian immigrant, you lose your First Amendment rights.

That's okay.

You no longer have the First Amendment if you marry a Haitian immigrant.

Well, you consented.

No, like that's the whole point.

It's

just no, just just no.

I guess what's happening here is that citizenship is an unusual right where you can technically consent

to giving it up

in like the affirmative way.

Anyone, you know, right now you could go through the process of renouncing your American citizenship if you wanted to.

And so the court is saying like, well, you know, you sort of did.

Yeah, right.

Yeah.

Yeah, exactly.

When you met a

Scotsman.

In California, where you have lived your whole life and then stayed there with him.

That was sort of like renouncing your American citizenship when you think about it.

One good thing about this opinion is that that's all of it.

There's literally nothing else.

We always talk about this when we do these old cases, but God bless.

Yeah, no, that's the entire opinion.

There is a paragraph that says that this opinion would be a lot longer if they were really contending with and analyzing all of the arguments on both sides of this, but they don't want to.

Yeah, they're like, it would just be so

long.

A lot of work.

It's literally

writing and writing and reading and reading.

What do you expect from us?

They have to get back to the Yale Club

where they read the newspaper all day long.

And coincidentally, or not coincidentally, importantly, that paragraph is specifically about the arguments that Ethel McKenzie brings up regarding this consent by marriage to relinquishment of citizenship.

Ethel McKenzie does make the argument that a woman

does not, by marrying a man of non-U.S.

citizenship, consent to giving up her citizenship.

And there's a challenge in her legal argument to this idea of like that property concept that you brought up, Peter.

That once a woman is married, she basically is just an extension of the man, right?

She belongs to the man in some senses, is not her own independent person.

And Ethel is a suffragette, right?

So she has some like relatively progressive views on women's rights.

Also, on the lines of like how funny and like brief this stuff is, Mackenzie does make this argument.

It's true, but I'm going to, I'm not going to summarize the argument.

I'm going to read you the entirety of her argument since back in the day, they also included the plaintiff and defendant briefs.

She makes two points.

One, the plaintiff's consent cannot be implied.

Two, marriage in itself itself is not an act of expatriation.

Boom.

That's it.

Done.

That's it.

And then just citations, just some citations after both those.

It's just like, boom, this is it.

Read this shit.

My kingdom to be a lawyer in the early 1900s.

But this is what the court says about it.

It would make this opinion very voluminous.

to consider in detail the argument and the cases urged in support of or in attack upon the opposing conditions.

Their foundation principles, we may assume, are known.

The identity of husband and wife is an ancient principle of our jurisprudence.

It was neither accidental nor arbitrary and worked in many instances for her protection.

There has been, it is true, much relaxation of it, but in its retention, as in its origin, it's determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity and and give dominance to the husband.

So, okay,

thanks guys.

They're like, we don't want to write anything more about this.

This is fucking obvious.

You guys cited a lot of things.

And we're not going to read them because that would be a lot of work.

And we're certainly not going to write about them.

Everybody knows that you belong to your husband now.

Yeah, no, it's no analysis.

They're just like, yeah, this is an ancient principle.

And yeah, it's changed a little bit.

But here's where I am right now, just in terms of boys and girls.

And it's incredible because the facts of this case, like we talked about this, but still, it's like, again, this guy moved to the new world, right?

He took that big long boat trip.

He's...

planning on getting lawful permanent status.

Not only a boat trip, that dude went from Scotland Scotland to the United States and then crossed the United States.

Fucking California.

Yeah.

Yeah.

He did like the Oregon Trail shit.

Just, they are never going to the fucking United Kingdom.

They would die en route, right?

Like they are, it would be easier for them to go to China because at least they're on the coast, right?

Already.

At any event, the main point is these people are never leaving California.

They live there.

They've lived there their entire lives.

He wants to continue living there.

And they're like, yeah, but yeah, but he's Scottish.

So now you're Scottish.

It's fucking wild.

Like it is, it is when you think about it.

It's wild how

dehumanizing this is to women.

It's hard to wrap your mind around.

One last thing to mention.

There is a concurrence here, but in true early 1900s fashion, it is a single line.

There's no argument or anything.

I got it here if you want me to.

Yeah, yeah, read it.

Read it.

Mr.

Justice McReynolds is of opinion that this court is without jurisdiction and that, therefore, this writ of error should be dismissed.

Okay.

That's it.

I don't think he even wrote it.

Like somebody else wrote it.

It's just like,

no jurisdiction.

Someone's like, all right, fine.

Yeah.

Mark me down as no jurisdiction on this one.

Yeah.

Put me in for a no jurisdiction here.

Yeah.

God.

It rules.

It rules.

All right.

So we're obviously doing this case, not because we want to discuss the situation in 1915, but because we want to discuss the situation right now.

And the sort of

boundaries of citizenship and the stripping of citizenship have become a topic of conversation

because they are being aggressively proposed by Donald Trump and his allies.

Yes.

So I think it's time we talk about some of that.

Yeah.

So there has been

a large attack on citizenship brewing in the right for a while.

I don't want to say it's like fully fringe, certainly in legal circles.

Some of this stuff isn't fully mainstream yet, but for years, there have been efforts to reread what, you know, birthright citizenship means in the 14th amendment just as one example and when trump was in office he had a task force a denaturalization task force the idea there was what it sounds like to strip american citizens of their citizenship and it wasn't a massive project in in terms of raw numbers, although it was a marked uptick in what it had been previously.

There's, you know, I think something like 100 or so people, but it's still a very concerning first step.

The grounds for denaturalization are varied.

They can include lying on your immigration and naturalization papers.

Yeah.

They can be membership in a subversive group.

It can be committing crimes.

And to be clear, though, like

in the past, there were like, I don't know, 10, 12 of these a year, maybe.

And

it was often because someone had committed fraud in their papers.

Right.

Right.

And, you know, alternately, occasionally you'd get someone who was like a terrorist who was, you know, had immigrated here or whatever.

Like that, you know, those are sort of like the outliers.

But what the Trump administration wanted to do was

go and find people.

Right.

Was, well, what if we searched for errors on immigration papers right right what if we were actively trying to denaturalize people and they didn't get very far with this in the first term

but the concept was there right

and it's definitely sort of something that should be on our minds now that his entire campaign is about mass deportation right like

you know when they are doubling the number of supposedly undocumented immigrants in the country, that's not because their math is bad.

It's because their intention is to deport people who are actually documented or who are lawful permanent residents or even citizens, right?

We see this with the way J.D.

Vance knowingly refers to the Haitian population in Springfield as illegal, quote unquote, even though he knows that they're here lawfully.

Right.

And Trump, for the record, has just said when asked that he would strip the Haitian immigrants in Springfield, Ohio of their legal status.

Yeah, straight up.

And Vance has said at rallies, he's like, well, I'm going to keep calling them illegal.

Just being like, yeah, I don't care.

They're illegal to me.

Right, right.

And if they're not now in a Trump administration, they will be because Trump will make it so.

Right.

Right.

There was a case during Trump's term, Maslinjack, the United States.

Interestingly, sort of a signal, I think, from the Supreme Court that they, at least at the time, were not super on board with this project.

This was a Serbian woman was the plaintiff in this case.

She and her husband had emigrated in the late 90s.

On their papers, they had said he had never been part of a Serbian militia.

And they got their lawful permanent residence and eventually citizenship.

Then it turned out, found out much later that know, the husband had been in the militia.

And on that basis, he was stripped of citizenship.

And the wife, for saying,

for testifying and putting in her papers that he had never been in the militia, she also was stripped of citizenship.

The court was unanimous in saying

that the government had not met its burden here.

As to the wife's naturalization, right?

As to the wife's naturalization.

That it's not enough to show that she lied on her paperwork, that you have to show that the lie was material to the determination to give her status, citizenship status.

So whether or not her husband was in the militia maybe was not material to whether she would get citizenship.

And so they sent it back.

An interesting signal from the court, but also the politics have changed a lot, right?

Like it doesn't give me a huge amount of comfort.

yeah no like sam alito believes the cats and dogs thing right almost yeah almost for sure yeah yeah

so i guess the next question and why we're really doing this case now is like what will happen in trump's second term we have a sense from like the project 2025 documents and the statements of trump and his allies Most obviously, Trump has promised what would be the most aggressive deportation regime in history, right?

Militarized, violent, lacking oversight.

I mean, an operation that it's hard to know what it will actually look like or what it would actually look like.

But

if it were to be as Trump describes it, it would be

Gestapo-esque, right?

Something incredibly large, incredibly violent.

Yeah.

They also plan to constrict avenues for legal immigration and eliminate or neuter existing programs.

So they plan to use threats of withholding financial aid to prevent immigrants from accessing in-state tuition at state colleges, for example.

They want to terminate the status of DREAMers, of which there are about half a million.

They want to compel states to share driver's license and taxpayer data with the federal government so that they can use it to target undocumented immigrants.

And of course, they want to bring back the denaturalization program that Michael referenced.

Stephen Miller said that they plan to, quote, turbocharge the program.

Whatever the fuck that means, I guess it's hard to say.

But basically, any immigrant in this country, legal or illegal, is at some risk under a regime like this.

And I think that is the bottom line, right?

We don't know exactly what the contours are going to be, but in a world where they are promising to deport 20 to 25 million people a fuckload or of what are now legal immigrants in this country are going to be targeted and

with a program as reckless as what is likely to manifest in a trump administration some percentage of natural-born american citizens are likely to be impacted as well right absolutely yeah yeah by design by design yes right here Here we have, you know, this case about a natural-born citizen being stripped of her citizenship.

I'll talk in a minute about like why that never happens anymore, but it's not a guarantee that it won't happen again.

Yeah.

And U.S.

citizens, legal permanent residents have been accidentally deported, have been in immigration, deportation proceedings, immigration detention already.

That happens already with a deportation machine the size of which we have in the U.S.

That happens already.

And so, for any promise, political promise at kind of quote-unquote ramping that up in any way, that's going to absolutely include people who are here with lawful immigration status, including natural-born citizens themselves.

And that's to say nothing of your point, Michael, which is that actually this quote-unquote, like ramping up of the cruelty of this deportation machine is by design supposed to make all immigrants afraid and supposed to target all immigrants regardless of their lawful status yeah i think that's right i think these discussions sometimes they frustrate me because uh and this isn't i mean i we've all been doing this but like expatriation denaturalization even mass deportation are euphemisms right like what what's being promised here what's being described is ethnic cleansing, right?

Like that's that's what it is.

Like

we're going to get rid of the Haitians in Springfield, Ohio, right?

That's ethnic cleansing.

We're going to get rid of the aliens.

Right.

That's what's being promised here,

which is why lawful permanent residents and why

American citizens, both naturalized and natural born, are at risk.

That's the point.

It's the point to make disfavored groups of lesser status so that they are no longer fully protected by the law and can be abused by the state or abused by fellow private citizens and the state

turns its eye away and doesn't care, right?

Like that's what's being promised here.

It's going to be violent.

You know, if it happens, it would be violent.

It would be ugly.

They've talked about like, oh, you're going to deport 20 million people.

We're going to have to make big camps for them, right?

Like that's, or we're going to have concentration camps, more concentration camps, and there will be citizens and lawful permanent residents in those camps.

Like that's, that's what a 20 million person deportation program necessarily looks like.

It's

actual violence backed by the threat.

of even worse violence, right?

Like it's come along peacefully or we're going to beat the shit out of you and you're going to come along anyway.

But it's still violent being ripped from your home, put in a camp, and then shipped off to a country that maybe you've never been to

with a language you don't speak.

Like, yeah, I mean, look at what's happening right now in Springfield, right?

With people who have legal status, right?

You're getting bomb threats on top of the fact that you have a presidential candidate threatening to deport you.

You have a citizen militia being mobilized against you yeah

and this is being done without the state you know explicitly backing them right this is just this is just what the movement itself is doing give it the power of the state it'll be very ugly and you know we've talked about this in the first amendment context but it's like it's important to realize and other amendments for that matter but that

In practical terms, these things don't always give you meaningful protection, right?

Like,

yeah, the First Amendment might say you have a right to associate and whatever, but you know, when riot cops are

beating you with the baton,

saying, well, the First Amendment, you know, doesn't do much.

And similarly, here,

yelling in some goon, some ICE, you know, border patrols face that you're an American citizen and they can't just round you up.

Maybe,

maybe eventually you could get a payout for that.

Maybe, but you have to go through it, right?

You have to be detained.

You might end up being deported.

You might end up getting beaten.

That's at best, at best, after a harrowing experience, you're quote unquote made whole with monetary reparations years later.

That's the best case scenario.

That's not true protection, right?

Like in any meaningful sense.

You're like, oh, yeah, thanks.

The Constitution applies.

Like, what is that?

Yeah.

If you look at the cases of citizens who were wrongfully deported and who have successfully then sued and gotten a few hundred thousand dollars, like a lot of them had to re-enter the country illegally.

They crossed the Rio Grande and should they have to sneak, sneak back into the fucking country to file their lawsuits.

Like

it's

it's it's not great.

It's not great.

No, it's the opposite of great.

And yeah, you know, we've been talking about like what this would look like under a second Trump administration.

Things like camps, things like rounding up people from their homes, raids, that kind of thing.

You know, nobody here is, I know that nobody here is saying this.

We should just mention that this happens already.

Absolutely.

Absolutely.

The violence, the cruelty, and the scale of the mass deportation immigration scheme that we have right now.

So,

this is happening already, which is just to say, like, we know how it works.

And so, this ramping up of that existing scheme just means many, many, many more people, many, many more families are sort of incorporated into this violence, incorporated into this cruelty.

And I think it's important to take a step back and talk about the why.

Why would a Trump campaign be promising this?

Why is the rhetoric around immigrants right now so vile, so violent?

And that's because at the basis of fascism, a political ideology about how the United States should

work right now, at the basis

is

an idea about who is inside a group that is worth quote unquote protecting and who is outside.

And at the basis of fascism is that idea and the idea of who is inside the group that is necessarily and foundationally according to fascist ideology, that's a small number of people.

And everybody else is an outsider, and it's a lot of people because it has to be very scary because you have to justify the violence that's done to that out-group so that ostensibly that in-group is quote unquote protected, quote-unquote, unquote, held on a higher pedestal, quote unquote, retains their God-given, their American rights, their American identity.

And so, you know, all of this, it's obviously deeply, deeply, deeply racist.

And it is about the creation of these identities where some people can identify as an in-group and have an out-group towards which their anger and their racism can be directed.

Yeah, and I don't want to belabor this point or anything, but it's just

worth emphasizing.

Once you start drawing lines about who gets, you know, the full protection of the Constitution and the law and who does not, then it just becomes a practice of finding excuses to put more and more people, more and more of your political enemies, in the groups that don't get full protection, right?

To be, to find them all part of a subversive element, right?

Like this is that this is the story of the House Un-American Activities Committee

during the Cold War trying to root out communists.

And

it's not hard to imagine something like that happening again.

I remember during Black Lives Matter going to a rally and one of the state legislators was livid because a bunch of people had been arrested.

And then

at the precinct where she had been to serve her constituents, some feds showed up and were just pulling every single detainee aside and grilling them about any possible association with Antifa.

And you can already see the outlines of like what the next subversive group that if you get tagged with it, all of a sudden your rights evaporate is right.

Like the groundwork for that has already been laid in the last Trump administration.

We know who the boogeymen are.

And you get tagged as anti-Fa, you're subversive, whatever.

And

it's just,

it's not hard to see where all this is heading.

Right.

Yeah.

And that's what like this case is about, Mackenzie v.

Hare, right?

This is a natural-born American citizen.

And

with a stroke of a pen, because she made some decision that the United States doesn't like.

She no longer has the rights of a U.S.

citizen.

Right.

Like, this is the legal way of doing that.

And it shouldn't matter how bad her decision was to marry a Scottish man.

You know, to build off all of this, there are many legal immigrants who turn around and want to pull the metaphorical ladder up behind them, right?

Or at least who do not care when they see anti-immigrant rhetoric because they do not believe that it's about them.

Right.

They believe that it's about undocumented immigrants or more violent immigrants or whatever.

But it is about them, right?

They are misunderstanding the project.

The project is not reducing crime, right?

It's an established fact that immigrants, legal or illegal, commit less crime than citizens.

It's not about legality, which we know because they're trying to curb legal immigration as well.

The project is the narrowing of the American identity, right?

And in the post-World War II era, especially, America has defined itself by this egalitarian liberalism, a place that celebrates the independence of each person within it.

The right-wing vision is to replace that with a country that is defined by and belongs to a specific type of person, like white, male, Christian, conservative.

If you are not all of those things, then the project is about excluding you.

Yes.

And it will come for you sooner or later.

Yes.

Yeah.

And importantly, that includes when we're saying, like, it's coming for you too, this movement, this attack is coming for you too.

Importantly, that includes legal immigrants.

You know, some portions of that population think that there is some meaningful divide between I came to this country legally and I did it the quote-unquote right way, and people who are undocumented, people who came in illegally, people who crossed the border without papers and without legal status, that the laws should rightfully apply harshly to them.

This movement of anti-immigrant sentiment and of creating a scary out group that should be attacked and should be excluded and should be literally deported, that's coming for legal immigrants as well.

I think if the Trump era has one lesson for us, it's that a lot of political and cultural institutional norms are more fragile than they might appear, right?

The idea of Roe v.

Wade being overturned seemed far-fetched to a lot of commentators until it happened.

The idea of an attempted coup in America seemed far-fetched until it happened.

And I think very similarly, many people don't understand the scope of what a fascist government could accomplish on immigration.

It's not just that they could mobilize a violent and sadistic deportation program.

They could redefine what citizenship is.

This case was made irrelevant when the Expatriation Act was repealed in the 1940s.

But the holding functionally stood until 1967, when there was a case called a Froyem v.

Husk, where the court held that natural-born citizens cannot be stripped of their citizenship involuntarily.

That was a five to four decision in the Warren Court.

In many regards, the most liberal in history.

Right.

So a decision that barely won a majority in a court drastically more liberal than this one is what's standing between us and a world where natural-born citizens can have their citizenship deemed forfeit.

Does that feel like stable ground to you?

Like, we've been talking about immigrants, right?

Naturalized citizens who are basically on precarious ground regardless.

But I'm talking about natural-born citizens, people born in the United States.

The only reason that their citizenship can't be stripped arbitrarily is because the different institutions within the federal government say so.

But what happens when they stop saying so?

Right?

There's nothing in the Constitution that prevents it explicitly.

So what protects us?

What protects you when they decide that that's the route they want to take?

I think that this is something that should be discussed more openly and thought about as an actual threat, even if it is something that's relatively far downstream and maybe not the most immediate threat.

This is something that fascists will want to do if the opportunity arises.

Yeah.

And so I think we want to be clear on a few things.

We've been talking a lot about a Trump, a potential second Trump administration that's not to downplay the current violence under the Biden administration, which is very in keeping with his predecessor, Barack Obama.

At the time, Obama deported more people than anyone before him, outdone by Trump.

Biden has been very,

very deportation-happy.

Democrats have not been great on the border on the whole.

and are more than happy to maintain the system of violence and exploitation and not do anything to fight the right-wing rhetoric that is inflaming popular sentiment against immigrants.

That's also not to downplay what could happen in a second Trump administration, right?

The rhetoric itself is an escalation, and we're seeing that have real-world effects in Springfield right now.

Just as one example, right?

The rhetoric itself is an escalation, and what's promised is an escalation, and one that would be extremely bad.

It would be better if we had an opposition party that actually wanted to fight on this issue rather than go with the flow.

But it's not the same as the openly fascist party that's running on a campaign of ethnic cleansing as their big promise for 2025.

All right, folks, next week, premium episode about the state of trans rights.

A little over a year ago, we did a trans rights in the courts episode with Aaron Reed,

and things back then were going well.

There were wins in the courts for trans rights.

Not so great lately, and we are going to check in and talk about where we are.

Follow us on social media at 54pod.

Subscribe to our Patreon and patreon.com slash 54pod.

All spelled out for access to those premium episodes, special events, our Slack, all sorts of shit.

I'll see you next week.

Bye, everybody.

Bye.

5-4 is presented by Prologue Projects.

This episode was produced by Dustin DeSoto.

Leon Nafak and Andrew Parsons provide editorial support.

Our website was designed by Peter Murphy.

Our artwork is by Teddy Blanks at ChipsNY.

and our theme song is by Spatial Relations.

If you're not a Patreon member, you're not hearing every episode.

To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com slash five fourpod.