In law, attribution is everything. Lawyers sprinkle written briefs with citations to statutes and constitutional provisions. Judges ground their decisions in prior cases addressing a similar legal issue. Making a claim without pointing to a source is akin to laying claim to originality. Doing that when a source is well-known and remarkably relevant is worse.
All of this is why it’s of great significance for Chief Justice John Roberts, writing for the majority in last summer’s decision holding that President Donald Trump’s birthright citizenship executive order is unconstitutional, to have failed to acknowledge that his description of citizenship’s importance has a long history with much to teach about the importance of modern-day legal disputes.
Writing for a bare majority of the court in Trump v. Barbara, Roberts reiterated the court’s long-held position that the 14th amendment’s citizenship clause sweeps broadly. Except for a small number of narrowly defined circumstances, everyone born in the United States acquires citizenship at birth. Describing aspirational statements by the famed abolitionist Frederick Douglass and legal analysis by President Abraham Lincoln’s attorney general during the Civil War, Edward Bates, Roberts explained the 14th amendment’s broad approach to citizenship by describing its importance to the late 19th century legislators who drafted, debated, and voted to add it to the Constitution. To them, “the tie created by birth was less a ‘duty’ than a ‘right’,” Roberts wrote. “Citizenship, then and now, was the right to have rights—to freely participate in our political community,” he added. Put differently, citizenship is the foundational legal tie between the private individual and the political community. Without citizenship, the majority suggests, every other right is at risk.
Roberts is correct that citizenship is unusually important. It provides access to key features of civic life, none more important than immunity from forced removal. But despite not attributing his declaration about citizenship’s fundamental role in modern political life to anyone, Roberts is far from the first person to make this point. On the contrary, judges have described citizenship using the exact words that Roberts used – “the right to have rights” – on dozens of occasions. Indeed, Roberts’ predecessor Chief Justice Earl Warren, who led the court from 1953 to 1969, described citizenship as a person’s “basic right for it is nothing less than the right to have rights.” For that reason, Warren explained in another case, a person who has lost their citizenship “has lost the right to have rights.” By not acknowledging that citizenship has previously been described in exactly the way that he and his colleagues in the Barbara majority do, Roberts misses the opportunity to ground his assessment of citizenship in a long history of treating it as fundamental to modern life.
This also misses the most prominent and analytically rigorous use of the phrase “right to have rights.” In 1951, the philosopher Hannah Arendt used the phrase in her book about early 20th-century Europe, “The Origins of Totalitarianism.” Arendt described “the right to have rights” as “the right of every individual to belong to humanity.” Without this foundational right, “expulsion from humanity altogether” became possible. As a German Jew, Arendt knew all too well what became of people whose legal status left them vulnerable to expulsion from humanity. Stripped of their citizenship, Jews lost their legal right to demand that a political community treat them as humans worthy of recognition by the laws of the location in which they found themselves. Barred from accessing the legal system, the German state could do with Jews whatever it pleased. At that point, “they were rightless, the scum of the earth,” she writes.
Arendt’s personal experience was rooted in the Nazi Germany that she fled, but both her experience and the analysis that Roberts quotes, without acknowledging, taught her that dehumanization wasn’t unique to Nazi Germany. Writing from New York City, where she found refuge, she observed that people forced to leave their homes were more often welcomed with platitudes than the dignified treatment that, in her view, all humans were owed. “[I]n this mad world it is much easier to be accepted as a ‘great man’ than as a human being,” Arendt wrote in “We Refugees,” a 1943 essay appearing in The Menorah Journal. In that essay, Arendt went on to criticize curfews in Paris imposed “because we were Jews” and restrictions in Los Angeles imposed “because we are ‘enemy aliens,’” a concept made newly relevant by the Trump administration.
To Arendt, rhetorical distinctions captured legal distinctions. For example, she argued that many of the refugees created by World War II were not refugees, as that term was previously understood, until the term’s meaning changed. “A refugee used to be a person driven to seek refuge because of some act committed or some political opinion held,” she wrote in “We Refugees,” “but we committed no acts and most of us never dreamt of having any radical political opinion.”
Likewise, legal pathways to safety were more than a bureaucratic labyrinth to navigate. Arendt was able to reflect on the “right to have rights” only because she survived the war. And she survived the war because she escaped from Nazi-occupied France to Spain, then boarded a ship heading to the United States, thanks to fake travel documents. Her friend Walter Benjamin wasn’t so fortunate. He complied with Spanish immigration law, only for Spanish immigration law to change when he reached the Spanish border. “During the night, Benjamin took his life,” Arendt wrote years later.
There is tragedy in some of Arendt’s writings. Horror in others. But throughout her work, there appears a consistent theme: the laws that distinguish insiders to the political community from outsiders is malleable. Laws can be altered by the political winds of the moment. By rejecting Trump’s attempt to rewrite birthright citizenship, Roberts and his colleagues in the majority held off, for now, at least, any change to the terms of “[t]he promise of American citizenship” – that, subject to a few narrow exceptions recognized since the 19th century, everyone born in the United States is entitled “to freely participate in our political community.”
But by failing to ground himself in Arendt’s impactful invocation of the “right to have rights” and in the horrific history in which Arendt contextualizes her assessment of citizenship’s power to fend off unspeakable violence, Roberts needlessly limits the majority opinion to a narrow past that he disputes with Justice Clarence Thomas, who dissents across a sprawling 91 pages.
Arendt’s view of the right to have rights does not turn on century-old history. As Arendt describes it, the right to have rights is about the present. Without the right to make demands of the government, people aren’t just denied the ability to participate in the political community; they are liable to be pushed out of the political community. And, as Arendt described– including in countless cases such as those of Walter Benjamin – being ejected from the political community can be fatal.
Failing to credit a prominent source is a problem for any lawyer, much less the chief justice of the Supreme Court. But overlooking the analysis in which Arendt famously uses the phrase that Roberts quotes is worse because it deprives his analysis of the power that fills hers: a clear-eyed assessment that what’s at stake in legal battles over citizenship can be nothing short of life or death.
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