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Justice Ketanji Brown Jackson on Tuesday accused Justice Clarence Thomas of echoing “one of Dred Scott’s core tenets” by opposing the Supreme Court’s decision to uphold birthright citizenship.
In Jackson’s concurrence with the majority’s opinion in Trump v. Barbara, she argued that the 14th Amendment’s citizenship clause was historically intended to apply to all people born in the United States, including children of illegal immigrants, contrary to Thomas’s position that the amendment was ratified specifically to provide slaves freed after the Civil War with citizenship.
“Freed Blacks fought for the shared humanity of all people. And the Great Emancipator eventually foresaw that the only path forward that could prevent a return — in any form — to slavery and race-based subordination was to link the fates of all,” Jackson wrote. “Of course, the ultimate irony is that for all the talk about the detestable Dred Scott decision, the Government and [Thomas] propose a return to its core tenet. Their bottom line is that, for certain people, being born on American soil will not suffice to confer citizenship.”
By invoking “Dred Scott,” Jackson is referencing an 1857 Supreme Court decision in which the majority held that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”
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According to Thomas, however, Jackson’s universalist characterization of the historical context surrounding the 14th Amendment was unfounded.
“After the Civil War, the Reconstruction Congress overruled Dred Scott, first with the Civil Rights Act of 1866, then with the Citizenship Clause of the Fourteenth Amendment,” Thomas wrote. “Both the Civil Rights Act and the Citizenship Clause guaranteed citizenship to persons born and domiciled in the United States regardless of their race. Neither guaranteed citizenship to persons who were not domiciled in the United States.”
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Thomas went on to describe the distinction he believes is drawn between Black Americans and foreigners residing in the country.
“Blacks were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority,” the justice went on. “The same could not be said for the children of foreign temporary visitors. Foreign temporary visitors were attached to their home country, lacked similar bonds to this country, and would not be called upon in time of war.”
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Thomas argued that citizenship under the 14th Amendment requires birth in the United States as well as “domicile,” a legal concept he defines as both one’s physical home and one’s permanent allegiance to the country. Children of foreign temporary visitors, per Thomas, do not qualify because, although subject to U.S. laws while here, they remain tied to another sovereign and are not fully “subject to the jurisdiction” of the United States in the constitutional sense.
Jackson fired back at this line of reasoning, calling it “myopic.”
“Despite his longstanding endorsement of a ‘colorblind’ Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to ‘freed slaves such as Dred Scott,’” she wrote. “It is for this reason, he says, that ‘children who were born in the United States but [to parents] not domiciled here’ are not entitled to claim birthright citizenship. But that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification. Even worse, Justice Thomas’s telling elides the entire point of the Second Founding.”
“The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery,” Jackson asserted.
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