History Lesson: Dissenting Opinions on Trump v. Barbara
I don't often wade into politics here, but in light of the 250th anniversary of the most important political document ever drafted, I'm making an exception. The recent Supreme Court ruling that President Trump's Executive Order interpreting the 14th Amendment's language on citizenship is unconstitutional was not surprising to me. Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett, though appointed by Presidents Bush and Trump, have disappointing track records. Perhaps the shining points in this ruling were the dissenting opinions of Justices Thomas and Alito, whose 90 and 40 page dissents present brilliant lessons in history and law. They should not go unread. Given their length, here are a few excerpts that I found brilliant. (Note: I removed numerous legal citations to make them more easily readable)
In America, you were generally a citizen if you were born here and this was your home. The legal word for home was domicile. The concepts were so linked as to be taken as effectively synonymous at time...Citizens were not the people who were temporarily passing through a territory or who happened to be born within it. Citizens were the permanent members of the body politic—the people whose roots were in a place, who called that place home, and who would, if necessary, go to war for that place...
The Court’s decision to hold the Citizenship Order facially (i.e., always) unconstitutional, in other words, makes it unlawful for the President to enforce the Order against a single person. He cannot enforce the Order against a child of an alien enemy or a child of a foreign spy. He cannot even enforce the Order against children who are raised in foreign countries, join foreign armies, and fight wars against the United States. The Court, without considering any of these individual circumstances, holds unconstitutional the application of the Citizenship Order in all of them.
In my view, the Citizenship Order is not facially unconstitutional. The Order is consistent with the original meaning of the Citizenship Clause, at least insofar as it applies to children born to parents, here lawfully or unlawfully, who are not domiciled in the United States. The Citizenship Clause was enacted for people who were born in this country and called it home. It was enacted for freed slaves such as Dred Scott, who had “a domicil” here and therefore were entitled to sue as citizens. It was enacted for men such as Frederick Douglass, who demanded citizenship “not as aliens nor as exiles,” but as “Americans.” Its authors and supporters promised, over and over again, that it would exclude the children of “persons temporarily resident” here, whom “we would have no right to make citizens.” In Senator Trumbull’s words: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means.” And, for decades after ratification, it was interpreted by all three branches of Government and by a wide range of legal authorities to be limited to people who were already Americans.
— Supreme Court Associate Justice Clarence Thomas, dissenting opinion, Trump v. Barbara
This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake. As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of “birth tourists,” women who come here solely for the purpose of giving birth to a child and then promptly return home. Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country...
According to the Court, the Fourteenth Amendment’s Citizenship Clause codified the British rule of birthright subjecthood with only one new exception, which was needed to accommodate the unique status of American Indians. That is a curious claim, and it is ironic that the Court should embrace it only days before we celebrate the 250th anniversary of our Declaration of Independence, which emphatically renounced the foundation on which the British rule rested. That rule did not concern “citizenship.” There was no such thing as a “citizen” of England, Scotland, or Ireland. The inhabitants of the British Isles were the King’s “subjects.”
— Supreme Court Associate Justice Samuel Alito, dissenting opinion, Trump v. Barbara
If you're interested—and I daresay you should be—read the entire decision and opinions here.
