Thoughts on Peter Schuck’s Wall Street Journal Editorial

Ken has already flagged the editorial, in which Schuck — a superb scholar who teaches at Yale — argues that it would be constitutionally permissible to strip Faisal Shahzad’s US citizenship because of his attempt to set off a car-bomb in Times Square.  I’m skeptical of Schuck’s argument, so I thought I’d explain why.  Here are the key paragraphs:

Revoking the citizenship of Awlaki and the Fort Hood killer, both U.S.-born, presents a more complicated constitutional question. Under a 1940 statute that is still in force, the government can de-nationalize citizens who serve in a foreign military; vote in a foreign election; swear allegiance to, hold office, or naturalize in a foreign state; expressly renounce their citizenship before certain U.S. officials; or conspire to make war against the nation.

But a 1967 Supreme Court decision, Afroyim v. Rusk, held that Congress cannot revoke citizenship without the citizen’s consent. Thus, in the case of the Times Square bomber, the government would have to prove that when he committed any of the actions listed in the statute, he intended to relinquish his citizenship.

In a 1980 case, Vance v. Terrazas, the Court reaffirmed this “intent to relinquish” requirement, but allowed the government to prove it by a mere “preponderance of the evidence.” Afroyim and Terrazas, which were both 5-4 decisions, accepted that a jury might infer intent to relinquish citizenship based on conduct—that is, even if the individual didn’t utter the magic words “I intend to renounce my citizenship”—so long as he had fair opportunity to show otherwise.

The question, then, is which acts might prove the specific intent demanded by these two rulings. In Shahzad’s case, if the government can show that he placed a bomb in Times Square at the behest of a terrorist group seeking to kill people simply because they are Americans, I believe that it should easily suffice. Unlike the citizen’s act in Afroyim—voting in an Israeli election—the Times Square plot precludes any notion of allegiance.

First off, I’m not sure what we gain by adopting Schuck’s argument.  The argument appears to be evidentiary, not substantive: as I read the editorial, Schuck is not claiming that it is acceptable to strip Shahzad’s citizenship because he engaged in an abhorrent act; instead, he believes that we can infer the requisite intent to renounce citizenship from the abhorrent act.  After all, Schuck acknowledges that Shahzad would have to be given a “fair opportunity to show otherwise” — to rebut the presumption of intent to renounce citizenship — before his citizenship would be taken away.  Presumably, then, all Shahzad would have to do is say, “no, I did not intend to renounce my citizenship.”  End of story.

Perhaps I’m wrong about Schuck’s argument.  Perhaps he is arguing that certain acts are so inconsistent with the idea of allegiance that the commission of one of those acts establishes an irrebuttable presumption of the intent to renounce citizenship.  If so, that argument seems to have two very significant problems.  To begin with, I don’t know how it could be reconciled with the “fair opportunity to show otherwise” requirement.  In effect, such a presumption would covertly restore the 1940 statute’s objective test for loss of citizenship; that objective test would simply be cloaked in subjective garb via the fiction that anyone who commits one of the acts in the 1940 statute must have intended to renounce citizenship, regardless of what he might claim now.

Such an irrebuttable presumption would also be underinclusive.  What is it about Shahzad’s act that makes it possible to conclude that it “precludes any notion of allegiance” to the US?  It can’t be that Shahzad was willing to kill innocent Americans.  If that was the case, common murderers would also lose their citizenship.  Is it that Shahzad was willing to kill innocent Americans to make a political point — one of the defining features of terrorism?  If so, pro-lifers who kill abortion doctors should lose their citizenship, as well.  As should the Hutaree Nine.  As should, perhaps, Obama if he follows through with his plan to assassinate Americans abroad who advocate terror.

To be sure, the civilians in Times Square are much more innocent than Americans abroad who advocate terror, such as Anwar Al-Awlaki.  Innocence, however, is in the eye of the beholder.  Pro-life murderers believe that doctors who perform abortions are not innocent, even though what they do is legal and constitutionally protected.  Christian terrorists like the Hutaree Nine no doubt genuinely believe that they are doing battle with the forces of Satan.  And Shahzad almost certainly believes that ordinary Americans are complicit in US crimes against Muslims in the Middle East.

But what does any of this have to do with “allegiance” to the US?  I doubt many people would conclude that pro-life murders or Christian terrorists must want to renounce their citizenship because they are willing to kill innocent Americans to further their political goals.  So how can we infer anything about Shahzad’s attitude toward his citizenship from his willingness to set off a bomb in Times Square in pursuit of his ideology?  Schuck infers Shahzad’s lack of “allegiance” to the US from the fact that he placed the bomb “at the behest of a terrorist group seeking to kill people simply because they are Americans.”  But that is an unpersuasive understanding of Shahzad’s motivation.  Indeed, it simply echoes the right-wing talking point that terrorists “hate us for our freedom.”  No, they don’t.  They hate us for our policies in the Middle East (and elsewhere).   Presumably, if the US stopped engaging in the acts that motivated Shahzad to turn to terrorism, he would no longer have any interest in committing terrorist acts.

To be sure, such a transformation of American policy is extremely unlikely.  Shahzad might even believe that the only acceptable US would be one governed solely by Sharia.  But that still wouldn’t tell us anything about his ostensible desire to renounce his citizenship.  I imagine that Shahzad would be more than happy to be a citizen of a Sharia-based US.  If so, his acts would indicate that he wants to be a citizen of a different kind of America, not that he doesn’t want to be an American citizen.

I know what many readers are thinking.  “But Kevin, a US based on Sharia wouldn’t be the US.  The US isn’t supposed to be a theocracy.”  I completely agree — but I don’t see anyone clamoring to take away Sarah Palin’s citizenship because she said this: “Go back to what our founders and our founding documents meant – they’re quite clear – that we would create law based on the God of the Bible and the Ten Commandments, it’s quite simple.”  That is no less a call for theocracy than a call to turn the US into a Sharia state.

The point, of course, is this: any attempt to infer an intent to renounce citizenship from a particular kind of abhorrent act, such as setting off a car-bomb in Times Square, necessarily depends upon a particular conception of what the US “really” is.  Only such a conception allows us to plausibly maintain that a particular act “precludes any notion of allegiance” to the US.  And it is precisely that idea — the idea that acts like voting in a foreign election or serving in a foreign military are per se inconsistent with being a “real” American — that the Supreme Court rejected in Afroyim.  The genius of that decision was the simplicity of its basic assumption: that the only way to determine whether someone wants to renounce their citizenship is to ask them.