{"id":400,"date":"2026-07-17T16:58:54","date_gmt":"2026-07-17T16:58:54","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=400"},"modified":"2026-07-17T16:58:54","modified_gmt":"2026-07-17T16:58:54","slug":"in-birthright-citizenship-dissent-justice-thomas-stakes-out-an-ideological-claim-of-who-counts-as-an-american","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=400","title":{"rendered":"In birthright citizenship dissent, Justice Thomas stakes out an ideological claim of who counts as an American"},"content":{"rendered":"
\n

The Supreme Court\u2019s decision about President Donald Trump\u2019s attempt to narrow access to birthright citizenship left no doubt that a majority of justices agree it\u2019s illegal. But two justices, Clarence Thomas and Neil Gorsuch, revealed that they also viewed the challenges to Trump\u2019s executive order as about more than the text of the 14th Amendment. They viewed it as an ideological battle about who is \u201cAmerican.\u201d<\/p>\n

Read more Three profound constitutional provisions \u2013 and how the Supreme Court has avoided dealing with them<\/a><\/p>\n

The court\u2019s long-awaited decision in blocked the federal government from enforcing Trump\u2019s executive order. Five justices found that it violates the 14th Amendment\u2019s citizenship clause. Justice Brett Kavanaugh was not convinced that Trump\u2019s order was unconstitutional, but he did conclude that it violates a federal law enacted by Congress.<\/p>\n

By contrast, Thomas and Gorsuch were more troubled by the majority opinion than the president\u2019s directive. (Justice Samuel Alito filed a separate dissent.) Describing the majority opinion, written by Chief Justice John Roberts, as an \u201calternative theory\u201d that is \u201cdifficult to square with the text\u201d of the 14th Amendment, Thomas \u2013 who wrote the 91-page dissenting opinion \u2013 claimed that it \u201cdevalues\u201d the citizenship conveyed by the Constitution. Thomas accused the majority of adding to the 14th Amendment\u2019s \u201csad history,\u201d lumping it alongside decisions permitting racial segregation on public transit, busing students to desegregate public schools, and affirmative action in university admissions\u2019 processes.<\/p>\n

In their view, the court should have focused on the legal concept of domicile and the constitutional phrase \u201csubjection to the jurisdiction.\u201d Mining statutes, judicial decisions, and legislative debates, Thomas parses these terms at length, concluding that they support Trump\u2019s view of the 14th Amendment. \u201cDomicile meant legal home,\u201d he writes. This is important to a proper understanding of the citizenship clause, he contends, because domicile \u201cmade a person subject to the jurisdiction of the government of his domicile.\u201d Without domicile in the United States, a person\u2019s child should not be treated as a U.S. citizen even if born here, Thomas argues.<\/p>\n

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 \u2013 shortly before and after the Civil War \u2013 Thomas claims, \u201cBlacks were entitled to citizenship because they were Americans.\u201d This was true of \u201cslaves and freedmen alike,\u201d he writes.<\/p>\n

Common though it is, the word American doesn\u2019t 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.<\/p>\n

Thomas sets out to define this term. Black people who were alive when the 14th Amendment was ratified were American because \u201c[t]hey had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority,\u201d he writes. (It\u2019s 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 P\u00edo Pico, the last Mexican governor of California, hadn\u2019t just represented another government in high office; they had led troops in its defense against U.S. invasion.)<\/p>\n

Read more The administrative agency cases were not the court\u2019s only significant separation of powers decisions this term<\/a><\/p>\n

Thomas ties his vision of citizenship to military service. And here, as throughout his dissent, he invokes Frederick Douglass. \u201cAs Frederick Douglass saw it, citizenship belonged to those who \u2018fought and bled in the same battles,\u2019 and \u2018gained and gloried in the same victories,\u201d Thomas writes, quoting from 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.<\/p>\n

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. \u201cWe ask that in our native land, we shall not be treated as strangers, and worse than strangers,\u201d he said in 1853. But in that Thomas cites, Douglass also explained that one of the bases \u201cupon which we found our claim to be American citizens\u201d was \u201cwe have been born and reared on the same soil.\u201d<\/p>\n

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\u2019 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\u2019s continued permissiveness of slavery. Describing the United States\u2019 conduct as \u201cequally hideous and revolting,\u201d he famously , in July 1852, \u201cWhat, to the American slave, is your 4th of July?\u201d A day in which \u201cmere bombast, fraud, deception, impiety, and hypocrisy\u201d are used \u201cto cover up crimes which would disgrace a nation of savages,\u201d he answered. Using fiery language was key to the ideological project to which Douglass was committed: to stamp out slavery and \u201cvindicate[] our right to be regarded and treated as American citizens,\u201d as he explained in the that Thomas quotes.<\/p>\n

Despite Thomas\u2019 use of Douglass\u2019 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\u2019s 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\u2019s permission or with the government\u2019s permission to be here temporarily.<\/p>\n

Children born to parents with the citizenship or immigration status Trump describes lack the attachment to the United States required for citizenship, Thomas claims. \u201cAmericans, consistent with their settler ethos, believed that citizens were the people who called a place home,\u201d he writes. As a description of U.S. law, that is also incorrect. In 1790, when Congress enacted the in the nation\u2019s 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.<\/p>\n

Thomas\u2019 invocation of Douglas\u2019 vision of American citizenship is thus incomplete. Unlike Thomas, Douglass had a broad vision of Americanness. Thomas\u2019 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\u2019t meet his definition. What is more, Thomas isn\u2019t 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 Barbara <\/em>isn\u2019t just an inversion of Douglass\u2019 vision of belonging; it\u2019s an attempt to masquerade ideological contestation as legal analysis.<\/p>\n

Read more The public\u2019s view of the Supreme Court<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court\u2019s decision about President Donald Trump\u2019s attempt to narrow access to birthright citizenship left no doubt that a majority of justices agree it\u2019s illegal. But two justices, Clarence Thomas and Neil Gorsuch, revealed that they also viewed the challenges to Trump\u2019s executive order as about more than the text of the 14th Amendment. 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