*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by Shirin Sinnar, Associate Professor of Law, Stanford Law School
The Trump presidency has put into sharp relief fundamental constitutional questions about national security and the role of courts. In the travel ban cases, for instance, courts question the degree of deference they owe the executive’s national security assertions where there is unprecedented evidence of discriminatory animus. Significant as such questions are, the current political moment also invites us to reflect on a deeper question: how we conceptualize the very notion of “national security” in the face of official policies and rhetoric that subject certain communities within the nation to radical insecurity.
In and out of court, “national security” is invoked prolifically with the assumption that its scope is self-evident and its importance unparalleled. “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the nation,” the Supreme Court proclaimed in Haig v. Agee in 1981. In the last Supreme Court argument of the Obama presidency, the Justice Department asked the Court to preclude a damages remedy for constitutional violations by federal officials arising at the intersection of immigration and national security policy. In so doing, administration officials again postulated the coherence of the “national security” category and the appropriateness of insulating certain constitutional violations within it from judicial review.
The term “national security” seems to invoke some set of implicit associations: perhaps the idea that state sovereignty or the preservation of governmental institutions is threatened; perhaps the notion that a threat implicates foreign relations; perhaps the idea that an issue involves especially high stakes, even of an existential nature. In political and legal speech, the connection between any particular issue and these ideas is often implied but rarely defended.
At the most basic level, the idea of national security seems to implicate the security of something called the “nation”: the safety of some imagined community encompassing the American people as a whole. If we take seriously this idea, however, it should lead us to interrogate who is left out from the “nation” the state seeks to protect.
That question can be asked in all administrations, but it is starkly at issue at this political moment. The Trump administration has launched an all-out assault on communities of color. The detentions of immigrants at courthouses, threats to revoke federal funding for sanctuary cities, the arrests of young people granted Deferred Action Childhood Arrival (DACA) status, the orders to publicize lists of crimes by undocumented people and the vast expansion of immigration enforcement priorities have terrified immigrant communities. The travel bans ripped apart families from Middle Eastern and African nations and branded Muslims as outcasts, sending a powerful message of exclusion to Muslim American and immigrant communities in America. The Justice Department now threatens to unravel dozens of federal agreements reached with cities across the country to protect largely African American communities from systematic discrimination, persistent police violence and onerous criminal fines that lock many people of color into poverty and incarceration.
Beyond the direct policies targeting their safety, the administration’s concerted campaign of dehumanization subjects communities of color to further state and private violence. To take one example, the requirement in the travel bans that federal agencies publish reports of gender-based violence by foreign nationals, “including so-called ‘honor killings,’” is patently aimed at disseminating the narrative that foreigners, and Muslims in particular, are a threat to women. The claim that non-white men represent a threat to women is a time-worn trope used to incite racial hatred and justify violence, sometimes to protect “our” women and other times to liberate “theirs.” (Indeed, both Dylan Roof, who shot dead nine black men and women in a Charleston church and James Jackson, the recent murderer of a black man in New York, cited the protection of women as their motive). More broadly, the administration’s anti-Muslim and xenophobic rhetoric has encouraged new waves of private violence: an Indian man killed in Kansas, a Sikh man shot in Washington, Muslim women in headscarves assaulted around the country, thirty-five mosques set on fire or vandalized in the past three months.
The result for many communities of color, facing both the Trump administration’s policies and the reenergized private violence of white supremacists, is profound insecurity. Yet rarely does the security of these communities enter into discussions of national security. Indeed, historically, race usually enters discussions of national security only when minority communities are perceived to be a threat, rather than when they face threats themselves. (The exception is when we fear that foreign countries or groups will exploit the treatment of minority communities for propaganda purposes, and therefore advocate the protection of their rights on national security grounds; even then, as Derrick Bell famously observed, the welfare of the minority community is promoted for its relevance to other people’s security, not their own). The safety of communities of color is rarely considered a matter of national security on its own terms, with the understanding that the nation encompasses all of its members.
I am not suggesting we re-label police violence, hate crimes or other such problems as matters of national security and then proceed to treat them legally in the same way we traditionally approach national security. As legal scholars and historians, including Mary Dudziak, Laura Donohue and Aziz Rana, have argued, constructs like “national security” (or “wartime”) have been used historically to justify the transfer of extraordinary power from the people to the state and from the courts and Congress to the executive. That kind of power needs restraining, not further unleashing.
But we ought to centralize questions of race and identity in discussions of national security to a greater extent than we have. We should question the broad deference accorded to claims of national security, when the scope of the term is both elastic and selective. We should elevate attention – constitutional and political – to the safety and security of non-white communities increasingly threatened with not just discrimination, but dehumanization. We should interrogate the more specific ways in which race constructs national security – such as the lines routinely drawn between forms of political violence (such as “hate crimes” and “terrorism”) depending on who is victimized. A new approach to national security and the Constitution might start by reconstituting national security.