Justice Thomas, Justice Jackson, and birthright citizenship

Across 200 pages, two different debates played out in the opinions by the Supreme Court justices in Trump v. Barbara, the birthright citizenship case.

In one debate, the justices went back-and-forth on the legal concept of citizenship throughout American legal history. Chief Justice John Roberts, writing for the Court’s majority, traced birthright citizenship (that anyone born on American soil is automatically an American citizen) from English common law through early American history, the Civil War era, and to the turn of the 19th century, which he finds to show consistently that citizenship started where you were born.

On the other side of that debate, Justices Brett Kavanaugh, Sam Alito, and Clarence Thomas collected other legal authorities from the same history wherein citizenship was always tied to domicile, i.e., one’s place of residence. When foreign nationals temporarily visited our shores, any children they had here kept their parents’ citizenship because citizenship flowed through the parents onto the children, and the parents remained residents of their native country, not the nation they were visiting.

The authorities are, frankly, mixed—there are legal points and historical sources supportive of both views, and that’s why we need judges to resolve these difficult questions. Personally, I find the dissenters have the better of the argument: The Civil Rights Act was passed by the same Reconstruction Congress as the 14th Amendment, and the Act was clear that American citizenship excluded those “subject to any foreign power.” Though the 14th Amendment’s citizenship clause used different language—“subject to the jurisdiction” of the United States—it makes sense that the same Congress would enact the same policy, even if the wording varied slightly.

The second debate running through the opinions is primarily a dispute between Justices Ketanji Brown Jackson and Clarence Thomas, and it runs to deeper questions.

As America celebrates its 250th birthday, their opinions ask whether that’s the right starting point for our national celebrations at all. Perhaps reflecting arguments from the 1619 Project, Justice Jackson’s concurrence suggests that the adoption of the 14th Amendment in 1868 rewrote the idea of America.

Justice Jackson refers to this as America’s “Second Founding,” a phrase popularized by scholars on both the right (such as Minnesota’s Ilan Wurman) and the left (particularly Columbia’s Eric Foner). For Jackson, the Radical Republicans did not mean the 14th Amendment to simply put the principles of Reconstruction into the Constitution—it was an “an anticaste, antisubordination reset for the Nation,” which gave America “a new font of legitimacy and vitality.” The 14th Amendment, in her view, created “a new Constitution,” one that achieved “nothing less than the remaking of the soul of a Nation beset by rank, entrenched race-based prejudice and inequity.”

For Jackson, America’s original sin of slavery required an entirely new constitution to achieve legitimacy, and courts should continue to employ the 14th Amendment as an “anticaste engine” whenever rank, prejudice, and inequity are present.

Justice Thomas critiques this view, saying the 14th Amendment “was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.” One could make a list of such projects, from same-sex marriage to the end of the Virginia Military Institute as a single-sex institution.

Of course, Lincoln himself in the Gettysburg Address recognized the need for a “new birth of freedom,” a sort of national redemption bought by the blood of so many sons and husbands slain in the Civil War (as in the Second Inaugural: “every drop of blood drawn with the lash shall be paid by another drawn with the sword”). I think of the debate on the so-called “Second Founding” along the lines of how Pope Benedict XVI talked about the Second Vatican Council—the hermeneutic of reform and renewal or a hermeneutic of discontinuity and rupture? Like Lincoln, I see the Civil War and its aftermath as a moment of national renewal, of realizing the best of the Declaration of Independence (“that all men are created equal”) and purging America of her original sin.

The 14th Amendment gave us a colorblind constitution, but it did not give us a nationality-blind constitution. Concepts of citizenship and nationality have existed since time immemorial—just look at the power of the Apostle Paul’s invocation of Roman citizenship in Acts 22. It is important that American citizenship retain its meaning. The Court has ruled, incorrectly in my view—now Congress must act to fix our immigration system and protect our border to ensure birthright citizenship is not abused by illegal immigrants or citizenship tourists.