One does not expect a mind-blowing lesson in history from a Supreme Court opinion. But that is exactly what Justice Clarence Thomas has given us in his dissenting book-length dissent in Trump vs. Barbara. This is the decision concerning birthright citizenship in which the majority decided in favor of the status quo while rejecting the historical evidence that the 14th Amendment was to apply to freed slaves, not just anyone born here.
The distinctly American concept of citizenship was on trial along with the true meaning of the 14th Amendment. Was it designed to grant anyone born here citizenship or was there more going on?
“Blacks were entitled to citizenship because they were Americans,” Thomas explains in his opening salvo. “They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority. They ‘fought and bled in the same battles,’ ‘gained and gloried in the same victories,’ and were ‘liable to be called upon to defend [America] in time of war’ alongside every other citizen. The Citizenship Clause thus guaranteed them the ‘dignity and glory of American citizenship,' so as to ensure that they would never be treated as second class under the law.”
They were not considered citizens simply because they were born here.
This distinction has more significance than first appears. Thomas then explains the difference between the feudal concept of subjection vs. the free society’s understanding of citizenship. There is mighty meaning here, one that is central to the uniquely American understanding of the relationship between the people and the government—a topic that reaches to the core of who we are and what the Founders were attempting to do.
I admit that I had never thought along these lines. Most people have not.
Under the monarchical systems of the Old World, all people in the realm were considered as subjects while all land was ultimately owned by the king or whatever the head of state was called. This very notion strikes Americans as inherently tyrannical. Certainly the Founders thought of the system this way, which is one reason they embarked upon a revolution against it and forged a new system.
Before explaining the difference here, let’s just offer a quick defense of the Old World idea. Yes, the head of state was the sole and ultimately owner of all; all land was leased and all people were subject to control by the top. While this can be the source of grave abuse, it also imposes a grave responsibility on the monarch to protect and preserve all that is in his kingdom. He must govern well, lest he be subject to revolt that can end in tyrannicide. This fear alone is what keeps government in check.
In other words, the arguments for monarchism are not quite as crazy as they might first sound to American ears. After all, it was under such systems that the idea of limited government was born with the Magna Carta, and a long tradition of good government did in fact develop under the stewardship of the great families of Europe. I have every respect for the people in many lands who would like to see the monarchies restored.
What the Americans sought was an improvement in the system based on individual rights. The people would become citizens and cast aside Old-World notions of being subjects with the requirement that all people should be willing to lay down their lives in defense of the king. Not so, said the Americans. Here we would be citizens by virtue of rights God has given us and by our loyalties of choice. The status of citizenship was to be a mutual agreement between persons governing themselves and the leaders of institutions they select in a plebiscite.
One can see why following the American Revolution that most of the world expected that this experiment in this new concept of citizenship would certainly fail. Until this point in Western history, there had always been a king with subjects with all property ultimately considered royal property. The great experiment in America was purely private property with people in the realm deemed citizens not subjects.
Being a citizen involves choice in two directions. The individual chooses to be loyal to the political community or nation. The community chooses to grant citizenship. It is an agreement, underscored by the words of the 14th amendment. (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof”) which requires birth plus domicile, which means allegiance. This concept of domicile is central to the argument: backing it as an act of will in two directions, the individual and the political community. The 14th amendment does not grant automatic citizenship based solely on territorial birth.
This is crucial and completely different from the concept of subjection, which is a leftover from feudalism in which the lord of the manor is owner of all and the people therein his subjects. Feudalism asks not consent; republicanism depends on it. And herein lies the relevance for the issue of birthright citizenship. It is not citizenship at all. It stems from a feudal concept that you are born into a political relationship.
Wrap your brain around that. The majority in this case plainly reinvented a feudal concept that the Founders pledged their fortunes, lives, and sacred honor to overthrow. Did they know or understand what they were doing? Not likely. I’m not sure I could have explained it before reading this brilliant dissent by Justice Thomas.
In particular, Thomas explains how this distinction has impacted the legal treatment of native tribes, or Indians in American parlance. They were never considered citizens despite being born here due to their primary loyalties to their tribal governments. This is why they were given lands and not taxed, and those lands are not subject to normal American law. This is because we reject the feudal principle that all within the realm belong to the head of state. Instead, Americans embraced citizenship based on volition and decision.
“If the Court were right that the Citizenship Clause applies to anyone who is born here and is subject to our laws,” Thomas writes, “then the Fourteenth Amendment would have conferred citizenship on all tribal Indians. But the exception for tribal Indians was well-established at the time and remained until Congress eliminated it by statute” in 1924.
The emergence of birthright citizenship turns the entire history of its head and introduces a nation concerning individuals and the state that is contrary to the entire American idea. For the majority of the court to do this—probably without understanding the implications—on the 250th anniversary of the Founding only adds to the insult.
Speaking for myself, I had never considered this idea much if at all. I had always assumed that birthright citizenship was just the way we do it here. On the contrary, for the court to institutionalize this concept represents a grave attack on a core pillar of the America idea. It asserts the feudal principle that the location of birth is determinative of legal status.
“As a result of the events of the past 50 years,” writes Thomas, “the United States now has a huge contingent of people who entered or remained in this country illegally, as well as a large group of people who were born here to such parents. The Court’s interpretation of the Fourteenth Amendment makes all the members of this latter group citizens. Many of those who have grown up here now have a strong moral claim to be allowed to remain, but that is a matter that the Fourteenth Amendment, when properly interpreted, leaves to Congress.”
He concludes: “The Court’s interpretation is not only contrary to the original meaning of the Fourteenth Amendment, it produces grotesque results. While foreigners who wish to immigrate lawfully must sometimes wait for many years, a child born here to a birth tourist is automatically a citizen.” He warns “the Court has made a mistake that will seriously affect the country’s future.”
Indeed. I’ve learned something today from this great Justice. Would that others on the court would share his wisdom. Maybe there is yet time.
