The Supreme Court’s decision about President Donald Trump’s attempt to narrow access to birthright citizenship left no doubt that a majority of justices agree it’s illegal. But two justices, Clarence Thomas and Neil Gorsuch, revealed that they also viewed the challenges to Trump’s executive order as about more than the text of the 14th Amendment. They viewed it as an ideological battle about who is “American.”
The court’s long-awaited decision in Trump v. Barbara blocked the federal government from enforcing Trump’s executive order. Five justices found that it violates the 14th Amendment’s citizenship clause. Justice Brett Kavanaugh was not convinced that Trump’s order was unconstitutional, but he did conclude that it violates a federal law enacted by Congress.
In their view, the court should have focused on the legal concept of domicile and the constitutional phrase “subjection to the jurisdiction.” Mining statutes, judicial decisions, and legislative debates, Thomas parses these terms at length, concluding that they support Trump’s view of the 14th Amendment. “Domicile meant legal home,” he writes. This is important to a proper understanding of the citizenship clause, he contends, because domicile “made a person subject to the jurisdiction of the government of his domicile.” Without domicile in the United States, a person’s child should not be treated as a U.S. citizen even if born here, Thomas argues.
Tucked into pages of legal analysis and a lengthy account of the history of citizenship law in the United States (that historians have disputed), Thomas also set out to define what it means to be American and explain how it affects his view of the 14th Amendment. Writing about the 19th century – shortly before and after the Civil War – Thomas claims, “Blacks were entitled to citizenship because they were Americans.” This was true of “slaves and freedmen alike,” he writes.
Common though it is, the word American doesn’t appear anywhere in the Constitution or the laws that Congress has enacted to convey U.S. citizenship to some people and not others. In law, some people are U.S. citizens, but no one is American.
Thomas sets out to define this term. Black people who were alive when the 14th Amendment was ratified were American because “[t]hey had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority,” he writes. (It’s unclear whether Thomas would define as American a specific set of U.S. citizens: those Black people, or their children, who had lived in Mexican territory before the United States took it by force 20 years before the 14th Amendment was ratified, creating the possibility that they had another homeland and allegiance. Under the terms of the treaty that ended the war, residents of the enormous swath of territory that switched flags could elect to retain Mexican citizenship or become U.S. citizens. While some people relocated south, it appears that few who stayed chose to keep Mexican citizenship. And some, like Pío Pico, the last Mexican governor of California, hadn’t just represented another government in high office; they had led troops in its defense against U.S. invasion.)
Thomas ties his vision of citizenship to military service. And here, as throughout his dissent, he invokes Frederick Douglass. “As Frederick Douglass saw it, citizenship belonged to those who ‘fought and bled in the same battles,’ and ‘gained and gloried in the same victories,” Thomas writes, quoting from a letter that Douglass signed, along with four other 19th century abolitionists. Building off Douglass, Thomas suggests that the 14th Amendment grants U.S. citizenship to Americans only and Americans are people willing to fight and die for the place they call home: the United States.
Douglass certainly believed that the sacrifices Black people had made, and indignities they had suffered, were sufficient to qualify them as Americans. There can likewise be no doubt that he thought Black people were, and had every right to remain, rooted in the United States. “We ask that in our native land, we shall not be treated as strangers, and worse than strangers,” he said in 1853. But in the very same letter that Thomas cites, Douglass also explained that one of the bases “upon which we found our claim to be American citizens” was “we have been born and reared on the same soil.”
Indeed, for Douglass to have broadened what it means to be American and lay claim to citizenship makes sense given his primary public role. He was a political activist unapologetically engaged in an ideological project meant to revolutionize the United States. Rhetoric was an important tool in Douglass’ political arsenal. For example, in the years leading up to the Civil War, he regularly claimed citizenship while calling out the hypocrisy of the nation’s continued permissiveness of slavery. Describing the United States’ conduct as “equally hideous and revolting,” he famously asked, in July 1852, “What, to the American slave, is your 4th of July?” A day in which “mere bombast, fraud, deception, impiety, and hypocrisy” are used “to cover up crimes which would disgrace a nation of savages,” he answered. Using fiery language was key to the ideological project to which Douglass was committed: to stamp out slavery and “vindicate[] our right to be regarded and treated as American citizens,” as he explained in the letter that Thomas quotes.
Despite Thomas’ use of Douglass’ rhetoric, while Douglass tried to expand who should be considered a rightful member of the political community, Thomas would like to limit who can be treated as a citizen. As Trump’s executive order would have done, Thomas believes the 14th Amendment excludes from U.S. citizenship children born to fathers who are neither U.S. citizens nor permanent residents and mothers who are in the United States without the federal government’s permission or with the government’s permission to be here temporarily.
Children born to parents with the citizenship or immigration status Trump describes lack the attachment to the United States required for citizenship, Thomas claims. “Americans, consistent with their settler ethos, believed that citizens were the people who called a place home,” he writes. As a description of U.S. law, that is also incorrect. In 1790, when Congress enacted the first citizenship law in the nation’s history, children born abroad to some U.S. citizens were themselves recognized as citizens without regard to what place they, or their parents, call home. That remains true today.
Thomas’ invocation of Douglas’ vision of American citizenship is thus incomplete. Unlike Thomas, Douglass had a broad vision of Americanness. Thomas’ interpretation of the 14th Amendment, on the other hand, first defines American narrowly and based on a dubious account of U.S. history and then writes out of birthright citizenship everyone who doesn’t meet his definition. What is more, Thomas isn’t a self-avowed political activist openly attempting to radically and permanently alter the United States. As a justice of the Supreme Court, his obligation is to interpret laws, not reimagine contested, ever shifting, and poorly defined concepts that are popular in politics but nowhere to be found in law. Ultimately, his dissent in Barbaraisn’t just an inversion of Douglass’ vision of belonging; it’s an attempt to masquerade ideological contestation as legal analysis.
