The latest Supreme Court spectacle struggling over the 14th Amendment’s guarantee of American citizenship–some people call it the “Anchor Baby case”–was actually the most important case to date for the future of this country that has yet been argued during Mr. Trump’s term of office.
Interesting for a wide variety of reasons, the Trump administration’s assault on birthright citizenship–saying ‘simply because you’re born here does not mean you belong here ‘- should not be seen simply as another dispute over immigration rights or constitutional interpretation between liberal and strict constructionist justices. Rather, this case is a modern attempt to decide once and for all who counts as a real American, who qualifies as a U.S. citizen, and who possesses the right to have protected rights in this country.
Though the majority opinion for the case was written by Chief Justice Roberts, the real meat of the battle was, interestingly enough given the history of the issue, between the Supreme Court’s two African American justices, Thomas and Jackson.
In summary–he wrote a 91-page dissent of the majority’s decision– Justice Thomas, a Black man, wrote that the 14th Amendment was strictly written to provide former slaves with legal American citizenship.
The amendment was not written, he said, to be used to grant other immigrants automatic American citizenship simply because their parents gave birth to them here. That original purpose had to be recognized and underlined, he said, to avoid confusion on the issue. Citizenship was not automatic for immigrants born here from non-citizen parents (the anchor baby stereotype).
Justice Clarence Thomas argued, using a specific historical and legal framework, that what he called the narrow or “Domicile-Based” view of the 14th Amendment does not mandate or even allow the existence of a universal birthright citizenship in the U.S. His argument rests on a specific historical and legal framework that he said showed that the 14th Amendment was designed exclusively to secure equal rights for formerly enslaved Black Americans. He argued that the citizenship clause in the 14th Amendment has regularly been improperly “repurposed” for modern political projects. Justice Thomas argued that the 14th Amendment phrase, “subject to the jurisdiction thereof,” created a domicile requirement (i.e., required political allegiance and a permanent home (domicile) in the United States) to be operable.
Justice Thomas further argued that the original phrasing used in the 14th Amendment excluded not only foreign nationals, because temporary visitors and undocumented immigrants maintained an allegiance to a foreign sovereign, but also asserted that their children could not fully fall under U.S. jurisdiction in a constitutional sense and are not automatically entitled to citizenship. Thus, simply being born here gave one no title to automatic citizenship.
In summary, Justice Jackson’s argument took Justice Thomas’ argument to the woodshed. In a concurring opinion with the majority, Justice Jackson said that Justice Thomas’s interpretation, if allowed to prevail, would repeat the failed logic of the old Dred Scott decision, which rendered Black folk as forever non-citizens in this country. A black justice agreeing with the Dred Scott Case result–what a retort.
Justice Jackson said, in standing with the majority, that the 14th Amendment not only intended to provide citizenship exclusively to formerly enslaved Black Americans, but the amendment also reset the United States against artificial social castes and legal subordination. She said the phrase in the 14th Amendment, “Subject to the Jurisdiction of, ” required complete political allegiance and permanent U.S. domicile (citizenship) applied to anyone born on U.S. soil, regardless of their parents’ legal status, outside of visiting diplomats and dignitaries.
The particular arguments rendered by these two justices should be included in high school and college textbooks for a long time. They contest the very basis of American citizenship.
