Democracy and Dissent

03-16-2025

Roger Berkowitz
In the early months of 1953, Joseph McCarthy’s anti-communist crusade was reaching a crescendo. Artists and intellectuals from Charlie Chaplin to Orson Welles were exiled while Paul Robeson had his passport revoked, Zero Mostel was blacklisted, and J. Robert Oppenheimer had his security clearance revoked. Leonard Bernstein was investigated and Langston Hughes publicly distanced himself from other leftists to avoid jail. Most everyone in the world of arts and education had decisions to make: should they speak up against the attack on constitutional and democratic government or should they fade into the background, hoping that their silence might protect them. 

It was at this time that Hannah Arendt began to speak out against the dangers of McCarthyism. Speaking out for Arendt held real personal risk. She and her husband Heinrich Blücher had recently become naturalized citizens of the United States—she in December of 1951, Blücher in early 1952. When Arendt received her U.S. passport she called it that “beautiful book.” But she worried about her husband: the Nationalities Act of 1940 had made it possible to denaturalize anyone who had lied on application for citizenship  and Blücher had hidden the fact that he had been a member of the Communist Party in the 1920s and 1930s in Germany. Emma Goldman had been denaturalized on similar grounds. Then Congress passed the McCarran-Walter Act in 1952 making it legal to denaturalize and deport U.S. citizens if they were suspected of communist or subversive activities. As Blücher received his citizenship in 1952, he worried that “one can now deprive someone of citizenship with a simple denunciation.” Arendt was worried that drawing attention to herself and Blücher might potentially endanger their citizenship.  

Despite her worries, Arendt spoke out both privately and publicly. In a letter to Karl Jaspers from March, 1953, Arendt writes that the McCarthyism movement is corroding American freedoms and not generating active resistance: 

"Can you see how far the disintegration has gone and with what breathtaking speed it has occurred and up to now, hardly any resistance? The whole entertainment industry and to a lesser extent, the schools and colleges and universities have been dragged into it. It all functions without any application of force, without any terror. And yet the whole thing eats its way further and deeper into the society. They are introducing police methods into normal social life because without exception, they name names. They make police agents of themselves after the fact. In this way, the enforcement system is being integrated into the society."

Around the same time Arendt also published an essay, The Ex-Communists, in which she argues that the right to dissent is at the core of American democracy. “Dissent belongs to this living matter as much as consent does.” Any attempt, she adds, to limit dissent and impose a true version of American opinion would destroy American democracy, not save it. The inclination to punish subversive speech is, she argues, simply the “methods of the police, and only of the police.” 

Arendt adds to her argument that dissent is central to American democracy in her essay “Civil Disobedience.” Amidst the chaos of the 1960s, she writes that we need to develop a political institution that can mobilize citizens and bring about political and social change, and that does so while remaining within the constitutional and legal frame of legitimate action. Arendt’s answer is civil disobedience. Civil disobedience is just the kind of institution that can invigorate democracy by crystallizing and protecting minority rights and organized dissent while at the same time avoiding revolution, dictatorship, and violence. “Dissent implies consent,” she memorably says, “and is the hallmark of free government; one who knows that he may dissent knows also that he somehow consents when he does not dissent.” So important is dissent in the American Constitutional tradition that Arendt insists that we need an explicit Constitutional Amendment guaranteeing the right to civil disobedience. 
 
Today, it is worth recalling Arendt’s foundational defense of public dissent as well as her outspoken resistance to legalized denaturalization based on political opinions. We are living through another moment when American politics is aiming to quell dissent. President Trump has made it clear that anyone who challenges him will be targeted and punished. It is one thing when woke cancel culture punishes those who deviate from the party line criticism and calls for cancellation. But it is fully another thing when the canceling is done by the United States government led by the President. President Trump is acting as if the United States were his own personal fiefdom and the cowardly retreat of Congress has left only the Judiciary as the branch of government resisting the President’s patrimonialism.  Respected public servants including former intelligence officials such as John Brennan and James Clapper, former Secretary of State Mike Pompeo, former National Security Advisor John Bolton, and the former Chairman of the Joint Chiefs of Staff General Mark Milley have all had security clearances and/or protective details removed. This targeting of political enemies is profoundly dangerous to the idea of America as a country where consent of the governed is founded on the right to dissent. 

Since the legal system is acting as the main force of resistance against the President, he has also sought to punish law firms associated with such as Perkins Coie, Covington & Burling, and Paul, Weiss by suspending security clearances and restricting access to federal contracts for attorneys associated with these firms. These firms have done nothing illegal, but they have represented Democrats or been involved in investigations related to Trump.

In addition, President Trump has publicly expressed intentions to direct the Department of Justice to investigate and prosecute political adversaries, including Democratic leaders and officials involved in investigations against him. Last week in a speech at the Justice Department, President Trump threatened to imprison critics and opponents. 

Beyond the President’s patrimonial and personal attacks on those he sees as his enemies, he is mobilizing the government to quell dissent across society. Just this week, President Trump invoked the Alien and Enemies Act of 1798 that gives the president authority to detain and deport citizens of nations who threaten the United States in times of war. The Act has previously been used only during actual wars—the war of 1812, WWI, and during WWII to justify the internment of Japanese nationals. The President claims that the Venezuelan gang Tren de Aragua is threatening the United States on behalf of the Venezuelan government, which he argues allows him to deport any Venezuelans connected to the gang. Few will defend members of the Tren de Aragua gang. It is one thing, however, to arrest those who commit crimes and give them a trial. It is another to simply deport them without due process. Legal rules can be burdensome and take time. They exist, however, to protect all of our civil liberties. The creation of a culture of legality is not something to be taken for granted, and yet President Trump seems intent on undoing that hard-won respect for law and civil liberties that has made the United States a beacon of freedom around the world. 

The President also has activated sections 237 and 212 of the 1952 McCarran-Walter Act—the very same provisions that Arendt worried could lead to the destruction of American democracy and the abolition of the foundational American respect for dissenting political opinions. Section 212 of the act applies to green card holders and permanent residents of the United States, granting the U.S. government broad discretionary power to exclude or deport non-citizens based on foreign policy concerns. By ordering the arrest and deportation of Mahmoud Khalil, a Palestinian graduate student at Columbia University known for his pro-Palestinian activism, President Trump showed that he is not only willing, but also determined, to punish and deport political enemies, even when they have committed no crime and have a green card allowing them permanent residence in the United States. 

Arendt certainly thought that the McCarran-Walter Act was anti-American and unconstitutional. She is right. The Court has held that all people in the United States and certainly those here legally as permanent residents enjoy the First Amendments’ protection of their freedom of speech. While the Court has never ruled on the constitutionality of sections 237. Generally, the Court has upheld the government’s authority to deport non-citizens under section 212. But if the right to dissent is a fundamental American right, it is a right that should be guaranteed at the very least to all who are legally in the country. There are over 12 million Green card holders in this country. To deprive them of basic American rights would change the character of our democracy. That clearly seems to be the President’s intention, to intimidate and cow legal residents and also by extension citizens and dissuade them from dissenting from his policies. 

The specific case of Mahmoud Khalil is a hard one because Khalil is in many ways an unsympathetic character as the leader of the often chaotic, arguably antisemitic, and at times clearly anti-intellectual protests at Columbia University. I should also add that there are also sympathetic aspects of Khalil’s character, as described by Benjamin Wallace-Wells.  For one, Khalil is being targeted because he is one of the few Columbia students who refused to wear a mask at the protests. Unlike many of his colleagues, Khalil was outspoken, courageous, and was thus chosen to lead the students in their negotiations with the University. To me this speaks greatly in his favor. Nevertheless, as Brett Stephens has said, in thinking about the Khalil case, we need to be able to hold  “four thoughts alive in our mind” at the same time.  As Stephens says:

We ought to be able to have four thoughts alive in our mind: First, that Khalil was a prominent spokesman for a campus group that believed Hamas’s violence against Israelis was a legitimate tactic — a despicable point of view, in my book, and something no university would tolerate if he had been an advocate for, say, white-supremacist violence against a racial minority. Second, that the secretary of state almost certainly has the statutory effect to remove him from the country.

Third, that making a public martyr of Khalil is a stupid idea, which will do more to energize his fellow travelers than it will to deflate them. Fourth, that arresting and possibly deporting a green card holder, entitled to free expression, sends a dreadful signal about the kind of country we are becoming. “Error of opinion may be tolerated where reason is left free to combat it” — the great Jeffersonian line — should be and remain a conservative standard.

The fifth thought we need to hold in our heads is that the statute giving the President this authority is or should be unconstitutional and is fundamentally at odds with the American tradition of democracy and dissent. Jeffrey Isaac may exaggerate when he writes that we are now living in a police state. But Isaac is right that at the root of President Trump’s actions is a fundamentally anti-American crackdown on dissent. We are in a fight for the kind of American constitutional and republican and democratic country we want to have. As Isaac writes:

This is not about Hamas or Palestine or Israel or antisemitism.

It is about the crackdown on dissent. Period. Foreign “agitators,” American “agitators,” it makes no difference.
And while it involves the Education Department’s financial intimidation and punishment of universities, it also involves the coercive power of the federal government—through Homeland Security, Justice, and even Defense—to arrest those among us, regardless of their citizenship status, who engage in “anti-American” behavior as defined by Donald Trump, in other words, those who oppose what Trump is doing.

This should surprise no one. For Trump promised exactly this, in pretty much every speech he gave on the 2023-24 campaign trail, but never more directly that in his too-easily forgotten 2023 Veteran’s Day Speech:

We pledge to you that we will root out the communists, Marxists, fascists and the radical left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections. They’ll do anything, whether legally or illegally, to destroy America and to destroy the American Dream. . . the threat from outside forces is far less sinister, dangerous and grave than the threat from within. Our threat is from within.

Trump is now doing what he promised. And all too many Americans are either excited that he is doing so or merely blasé about their president’s proud decision to literally take a torch to the U.S. Constitution.

Martin Niemöller’s famous saying has been quoted so many times that it is a veritable cliché. All the same, the sentiment it expressed is as true now as it ever was, and it is especially appropriate to note that it is featured on the website of the U.S. Holocaust Museum:

First they came for the socialists, and I did not speak out—because I was not a socialist.
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—because I was not a Jew.
Then they came for me—and there was no one left to speak for me.

The arrest of Khalil Mahmoud is an offense to every citizen of the United States, and it sets a precedent that endangers us all.