Opinions on Opinions: Trump v. Barbara (Birthright Citizenship Case)

Introduction 

Last month (or at this point, nearly two months ago) I posted a quick summary of my thoughts on the Trump v. Barbara decision. That post can be read here, saying I would try to follow it up with a more in-depth one. It is now time for that more in-depth one. There is, in fact, more I wanted to say, but I set a hard time limit of "end of August" for posting it to prevent myself from delaying it to the point that whatever relevance it might have had would be nearly gone.

I should make some general opening statements. For those who do not know, President Trump issued an executive order declaring that contrary to longstanding practice, the proper interpretation of the Citizenship Clause in the US Constitution ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside") does not include the children of illegal immigrants or temporary residents born in the United States. Lawsuits immediately followed challenging the lawfulness of this, asserting that the executive order was a wrongful interpretation of the Citizenship Clause, and even if not it still contradicted statutory law.

This was a facial challenge, meaning the challenge was to say that the executive order was unlawful in any application of it. Thus, if the executive order is even partially lawful, it passes that challenge, and opposition to it must be done in as-applied challenges, where people assert that it is unlawful in certain instances. So, for example, if the conclusion was that it was valid in regards to temporary residents, but was not invalid in regards to illegal immigrants, then the facial challenge fails, but an as-applied challenge against the portion on children of illegal immigrants could succeed.

The Supreme Court ruled 5-4 that the facial challenge succeeded, and that the executive order was entirely unconstitutional. It ruled 6-3 that the facial challenge succeeded, and that the executive order was entirely unlawful (this difference occurs because one justice (Kavanaugh) thought the executive order was constitutional, but violated existing law while the others in the majority (Roberts, Barrett, Sotomayor, Kagan, Jackson) thought it was straight-up unconstitutional). The three dissenters thought it was allowable in some cases, but were somewhat fractured on the reasoning. Thomas thought it was constitutional in regards to not counting temporary residents, but did not decide on the issue of illegal immigrants, saying that should be decided in future as-applied challenges. Gorsuch joined Thomas's dissent, but wrote separately to make it clear he was coming down on the "it is not constitutional when it comes to illegal immigrants, at least those that have established a residence in the United States" side. The last justice, Alito, wrote his own separate dissent that is a bit confusing on the standard he would apply, but appears to think that the key question is about whether the child would gain citizenship from another country.

This is important to understand the decision. Some have tried to portray it as a close decision, focusing on the 5-4, but this ignores the specifics. First, while it is easier to change laws than change the Constitution, meaning if it was constitutional but in violation of the law it would be easier to change things, the fact this was done via executive order rather than a law is exactly evidence that there is insufficient support to change the law; had there been, they would have just done that. But even setting that aside, zero justices fully countenanced the executive order. While one could say Alito and Thomas at least left open that possibility, they didn't positively affirm it, and Gorsuch quite clearly rejected some of the executive order.

With this information in mind, I'll talk about my general thoughts. As you can tell from my prior post, I think the Supreme Court got the outcome right. I say this despite the fact that I do think the United States' birthright citizenship policy is too broad and should be narrowed, as most other countries have. Still--and this is something that I think a lot of people either do not understand or refuse to accept--it is entirely possible for something to be required by the Constitution and be bad policy. The fact that people in the mid 19th century may not have perfectly foreseen later developments when they drafted the Citizenship Clause does not mean they drafted something different than they drafted. The idea that the Constitution should (absent an amendment) change with the times is living constitutionalism, an idea that a textualist and originalist like myself rejects. Indeed, this case has been a good way to see what people who claim to identify as "originalists" are actually willing to carry that philosophy even to places where they disagree as policy, and which ones suddenly turn into living constitutionalists and start talking about how people in the 1860's didn't foresee the present situation, which is ironically the exact same thing one sees liberals say about the Second Amendment. Simply put, the most plausible textualist and originalist interpretation of the Citizenship Clause is the one the Supreme Court came up with. 

For those who are worried about the results of this decision (there have been some absurd freakouts online), I should point out that this decision does nothing but retain the status quo that has existed most likely for your entire life. And as noted, no one on the Supreme Court even gave a full blanket approval of the executive order.

One separate decision that may be worth revisiting, however, is one called Afroyim v. Rusk. Many of the problems people have with this decision in regards to policy seem like it could be solved by the government limiting dual citizenship. In fact, in the past there were various limitations, and people who gained dual citizenship at birth would often be required to, upon reaching adulthood, choose only one of those citizenships to maintain. Such laws were struck down by the 1967 Supreme Court decision Afroyim v. Rusk. I have not yet done a deep enough dive to decide whether I think that decision was right or not, but I will note that by reading the opinion and dissent, I think the dissent had the stronger argument. So this is something that could very much be worth looking into.

So with all of that out of the way, I'm going to delve much more deeply into the decision. Or more specifically, the dissents. This post is, more or less, a critique of them, for I find there to be plenty of problems with them. This post could be considered an "addendum" of sorts to the majority opinion, where I go in and point out some issues with the dissents the majority opinion did not. I originally considered writing this whole post up as if it were a concurring opinion (like this post over here did for another case), but I found it grew a bit tiring to stay "in character" so I abandoned it fairly quickly.

I'm not going to go in and tackle every single point made in the dissents. Not only did the majority opinion do much of that for me, it would also take far too long to do it--and again, I want to get this out in some kind of a timely fashion. I may come back in later and add some things, but for now it's time to get this out. 

But before we get to the dissents, there are some comments on the majority opinion and concurrences to make, so let's get to those first. 

Majority Opinion of Roberts and Concurrences of Jackson and Kavanaugh Examined 

When I reread the opinions for this, I think my opinion of the majority opinion has decreased a bit. Not because I think it's wrong--I still think it's right--but because there are some things in Thomas's dissent that I think it should have responded directly to, because he keeps repeating them over and over despite the fact the things he's citing aren't actually backing him up. For example, he repeatedly appeals to dicta in the Slaughter-House Cases, even though the dicta, while disagreeing with the majority opinion, also disagrees with Thomas's own assertions; him appealing to an opinion by Grant's Attorney General (Williams) that he badly misrepresents, and that the same Attorney General disagrees with Thomas's ideas elsewhere; and him appealing to a congressional statute that only helps him out if one goes into it thinking he is right to begin with, making it circular logic. And he keeps bringing these up over and over in his dissent. I understand that responding to each and every point in a dissent can inflate a majority opinion too much, but given his constant reiterations, I think the majority opinion would have been better had at least these points been addressed (at the very least, calling him out for his horrible misuse of Grant's Attorney General would have been good).

I also wish the majority opinion had mentioned some other things--for example, there are some statements by Senator Trumbull that I think are very strong support for its interpretation, where he equates "subject to the jurisdiction" with being subject to the laws, but are unfortunately not referred to (these will be discussed in this post). For many, their information comes from only the opinions(s) themselves, and I think an addition of things like this, which would not have expanded it too greatly, would have done better to persuade the people who read it. Granted, I'm aware many don't bother to read the opinions at all, but for those that do, such additional information could help persuade them, as they otherwise might have not been exposed to them. So while the majority opinion is good, I think it could have been better.

I do not have anything really to say about Jackson's concurrence. It is taking aim at things Thomas said that I do not particularly care about; I wish she had focused more on some of the things I'm going to discuss in here, most particularly some errors of representation.

Kavanaugh's concurrence, asserting that the Executive Order is illegal by law but not by the Constitution, is rather underdeveloped. It is possible he, concluding no one was interested in his idea, just "gave up" on trying to convince anyone of it and thus wrote a short one to simply register his opinion and offering some sort of grounding for it. So I really don't have much to say about any of them. Kavanaugh's is the one I disagree with most, but there's simply not much to interact with there.

Now for the dissents, beginning with Thomas's. 

Thomas's Dissent Examined 

Again, this isn't going to be a complete critique of every single point or claim in the dissent. This is simply to add some things that I think the majority opinion could have opined on more. I recommend reading the majority opinion before reading this. 

So what is Thomas's argument? He attempts to argue that the Citizenship Clause's requirement of being subject to the jurisdiction of the United States requires a domicile (permanent residence) in the United States. The Citizenship Clause should be quoted again:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." 

One notices the obvious fact that nowhere does it say anything about "domicile" in the text. If this domicile was so important, one thinks they would have said "and domiciled therein" could have accomplished it.

On page 3, the following claim is made:

After all, Congress “would have no right to make citizens” of “persons temporarily resident.” Id., at 572 (statement of Sen. Trumbull).   

Trumbull's speech should be examined in more depth to show what these "persons temporarily resident" were. The pertinent portion of the speech, which can be viewed here, says:

"The Senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States and who owe allegiance to it. I thought that might perhaps be the best form in which to put the amendment at one time, “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;” but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer."

In the second bolded portion, "temporarily resident" is found, which is what Thomas quotes. But just several sentences prior, he talks about "a foreign minister who is "temporarily residing here." That shows us what he means by temporary residence: foreign ministers, such as diplomats. The two bolded sections should be read together given their similar verbiage. He is not talking here about immigrants, but foreign ministers. This is further demonstrated by the fact he says "we would have no right to make citizens." Why would the country not have the right to make citizens of children of temporary immigrants? Someone might say it is a bad idea, but this would be an odd statement to make about such a thing. But it makes perfect sense if we are talking about children of foreign ministers who are regarded as essentially being on home soil legally speaking; it would be like declaring people born in another country of non-American parents to be citizens.

Thus this fails for the dissent and in fact ends up being an argument against the dissent's position.

On pages 4-5, several claims are made that bear noting. These are somewhat fleshed out more later on, but the basic issues can be discussed here. 

Regardless of administration or party, the Federal Government for decades after ratification regularly denied claims to citizenship by children who were born in the United States but not domiciled here. When a child was “born” in the United States to parents “domiciled” abroad, he was “not, therefore, under the statute and the Constitution a citizen of the United States by birth.” Letter from Sec. of State T. Bayard to B. Winchester (Nov. 28, 1885), in 2 F. Wharton, Digest of International Law 399–400 (2d ed. 1887) (Wharton Digest).

This ignores the fact that prior administrations thought differently, as the majority opinion notes and which the dissent seems to ignore (outside of a quote it misrepresents quite poorly). Thomas during his opinion repeatedly tries to appeal to people from the 19th century, saying they have better knowledge than us as what it means, but people earlier than the ones he cites say the opposite. As the Wong Kim Ark decision itself noted:

"In 1871, Mr. Fish, writing to Mr. Marsh, the American Minister to Italy, said: "The Fourteenth Amendment to the Constitution declares that `all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' This is simply an affirmance of the common law of England and of this country, so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage. The qualification, `and subject to the jurisdiction thereof,' was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extra-territoriality." 2 Whart. Int. Dig. p. 394. "

This is in fact noted in the majority opinion. Thomas offers no response to it that I see.

Scholars agreed: A child “born within the territory of the United States, of alien parents” was not a citizen unless his parents were “permanently domiciled within the United States.” W. Robinson, Notes on Elementary Law 70 (1875). 

The general issues with the citations of "scholars" (Thomas tries to cite some more later) is discussed in the majority opinion (see pages 21-22). And indeed, as Michael Ramsey notes in his article "Birthright Citizenship Re-Examined", pages 147-148, in response to an article trying to argue essentially what Thomas did:

"Nonetheless, the post-ratification evidence Jurisdiction and Citizenship supplies is inconclusive. First, the cited sources provided no consistent theory as to why or how the clause created a domicile requirement—they simply asserted that there was (or might be) one. Jurisdiction and Citizenship attempts to construct such a theory based on the need for “complete” jurisdiction, but does not show that the post-ratification commentators generally held that theory. Moreover, post-ratification sources expressed various versions of the exclusion, including that U.S.-born children might elect U.S. citizenship on maturity by returning the United States—again, with no explanation of how the clause led to this result. Thus the commentary seems more to seek a reasonable policy rather than to seek the best reading of the clause’s original meaning."

Ramsey goes into a little more detail on these cited sources in footnotes (some of which Thomas does cite later), but does not specifically mention the Robinson citation that Thomas seems to think is the most important given it's the one he refers to here. The problem is, it is hard to see what Robinson's statement is supposed to be based on. If one looks up this work and then looks to the left where it cites sources, it refers to the Fourteenth Amendment, the Slaughter-House Cases, and Minor v. Happersett. Do these back up this interpretation? The Fourteenth Amendment says nothing about domicile, so we can write that out. Minor v. Happersett, while saying that there have been “doubts” as to whether children born within the jurisdiction are citizens without reference to the citizenship of their parents, says “it is not necessary to solve these doubts” for the purpose of the case, thus taking no position. Nor is there any mention of a domicile. The Slaughter-House Cases also make no mention of a domicile. So it is not at all clear where this assertion is supposed to come from, as none of the cited sources actually say any such thing. So it is the same problem as Ramsey noted--no explanation is offered other than some citations that do not support the claim, it's simply an assertion with no evidence this is the interpretation. (Ramsey also goes on to point to post-ratification sources that do support a broad interpretation)

Speaking of the Slaughter-House Cases, that makes an appearance next:

This Court agreed: The Citizenship Clause “exclude[d] from its operation children of. . . citizens or subjects of foreign States born within the United States.” Slaughter-House Cases, 16 Wall. 36, 73 (1873).

As noted above, this says nothing at all about "domicile" or "domiciled". Further, this is an odd thing for the dissent to cite. After all, the dissent accepts that children of non-citizen permanent residents become citizens of the United States... but the quote from the Slaughter-House Cases would not include that. This quote from the Slaughter-House Cases may disagree with the majority, but the dissent can hardly cite it in its favor when it also disagrees with the dissent. It would be as if the majority argues blue is the best color, while the dissent argued red was the best, and then cited someone else saying that yellow was the best color. It may disagree with the majority, but it disagrees with the dissent as well.

It should also be observed that this remark in the Slaughter-House Cases is worthless as precedent. Not only was it passing dicta unrelated to the outcome of the case, it was explicitly rejected by Wong Kim Ark, which correctly noted that the statement "was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities."

But someone may still claim that even if it was rejected as precedent, it still showed the Supreme Court as understanding it this way. But this runs into several problems. First, as noted, this statement does not support the dissent's claim. Second, the Slaughter-House Cases was a narrow, 5-4 decision. 44% of the court chose not to sign onto the majority opinion which made this claim. So all this invocation of the Slaughter-House Cases does is to say that a slim majority of the Supreme Court signed onto this statement.

So what the dissent is pointing to is a remark that (1) disagrees with their own interpretation of the Citizenship Clause, (2) is passing dicta unrelated with the case outcome, (3) offers no argument or authority for its claim, (4) was joined only a bare majority of the court signed onto, and (5) was explicitly rejected by a later decision, . How in the world does this support Thomas's opinion here?

And, Congress agreed: The Citizenship Clause did not extend to a child born here but “subject to any foreign power.” See Enforcement Act of 1870, §18, 16 Stat. 144 (reenacting Act of Apr. 9, 1866, 14 Stat. 27).

We notice an absence of any mention of domicile here also. The dissent is simply assuming its interpretation is accurate and then reading it into this law.

The other issue with this is that what this is doing is, as it notes, simply re-enacting the Civil Rights Act of 1866. It is an argument some bring up to claim that the Civil Rights Act should be read to exclude illegal and/or temporary visitors and then apply that to the Citizenship Clause. But this assumes that is the right way to read the Civil Rights Act. As Michael Ramsey discusses this issue Originalism and Birthright Citizenship on pages 451-454; this entire section is worth reading, but even if we were to agree that the two clauses mean the same thing, "Thus it appears that when Senators said that the Amendment had the same effect as the Act, they took a broad view of the Act (rather than a narrow view of the Amendment)." There is more he says on the subject than this, and I invite the reader to look at those pages, but the most critical portion is this:

"Third, even if one accepts a need to align the Act and the Amendment, it is not clear that it should be done by reading the Amendment narrowly. To the contrary, it appears that the Act’s drafters understood it, like the Amendment, to include U.S.-born children of aliens. Senator Trumbull introduced what became the Act’s Citizenship Clause (with the “not subject to any foreign power” language), leading to the following exchange: 
Mr. COWAN. I will ask whether [Trumbull’s proposal] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?
Mr. TRUMBULL. Undoubtedly.
Cowan then argued at length (in expressly racist terms) against adopting Trumbull’s proposed language. Trumbull repeated his understanding later in the debate: 
I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is; but, inasmuch as some persons deny this, I thought it advisable to declare it in terms in the statute itself.
No one was recorded disputing the effect of Trumbull’s proposal; the question the Senators debated was whether it was a good idea. 
Thus it appears that when Senators said that the Amendment had the same effect as the Act, they took a broad view of the Act (rather than a narrow view of the Amendment)."

In some fairness, Thomas later on attempts to try to argue in more detail on the Civil Rights Act. Still, I do not believe he has any satisfactory answer regarding the lack of "domicile" being mentioned either in the discussions on the Civil Rights Act or the Citizenship Clause, as the majority opinion notes (page 21).

I would note again that the statement of Trumbull that Thomas previously cited as evidence for his position only ends up being evidence against, as Trumbull makes it more clear in context he is talking about children of a foreign minister temporarily residing here. This provides more evidence that "subject to any foreign power" was referring to the families of diplomats, not all temporary residents. 

Thus, Thomas's claims that the Executive, Judicial, and Legislative branches "agreed" with his interpretation simply fall flat, with his claims on the Judicial branch being especially embarrassing as his very quotation disagrees with his interpretation. 

Page 8: 

The United States thus did not claim as a citizen every child born on its soil. Instead, pursuant to the principle that children followed their parents’ domicile, a child was a citizen of the place where his parents were domiciled. “[A] child born of foreign parents is not, on principles of natural reason, necessarily to be considered as a citizen of the country where he is born.” 1 Tucker 57 (emphasis deleted). If he was “born in the country,” but “both his parents were strangers not designing a permanent change of country,” then he was “as much a stranger to the country as his father.” Ibid.

Note Tucker says "principles of natural reason". He does not say this is the law of the United States. Indeed, he goes on to talk about how various states do not follow this "natural reason" such as the common law. Glancing through it, I do not see him clearly saying what the rules in the United States were at the time... though, to be fair, there was no explicit rule. I do not see him making a clear statement that this portion of the common law was rejected in the United States.

On page 9, Ludlam v. Ludlam is cited. But Ludlam v. Ludlam, when read fully in context, better supports the opposite opinion, as noted by the majority opinion in this case as well as myself in this older post (the Ludlam discussion starts midway through, so do a search for "Ludlam" to find it).

There is little to say for a while after that; the dissent continues to talk about the importance of domicile but is not explaining how this ties into the Fourteenth Amendment until later on. Just because domicile as a concept exists does not mean it is in the Fourteenth Amendment, especially given the word is not there. The dissent is enormous, and would have been better served had extraneous things like this been cut. I may think the majority opinion could have gone into more detail in some things, but on the other hand its briskness means one does not have to go through page after page of material unimportant to the case and its constant repetitions.

Finally on page 18, we come to more of a point in a footnote.

3 The Court claims that “the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868.” Ante, at 18. It is the Court that focuses on “allegiance,” but, in any event, many sources disprove the Court’s claim. See, e.g., Ludlam v. Ludlam, 31 Barb. 486, 503 (N. Y. Gen. Term 1860) (He “continues under the obligations of [his home] allegiance, and his children, though born in a foreign country, are not born under foreign allegiance”); Inhabitants of Abington v. Inhabitants of N. Bridgewater, 40 Mass. 170, 176 (1839) (“domicil . . . fixes his allegiance”); The Santissima Trinidad, 7 Wheat. 283, 347 (1822) (Story, J., for the Court) (a per- son cannot “throw off his own allegiance” without a “change of domicile”); Hodgson v. DeBeauchesne, 14 Eng. Rep. 920, 932 (Privy Council 1858) (“a settled domicile in a country, imports an allegiance to the country, very different, from a mere obedience to its laws during a temporary residence”); Inhabitants of Calais v. Inhabitants of Marshfield, 30 Me. 511, 520 (1849) (“consent or change of domicile” required for “allegiance”).

This footnote seems to skip past the footnote in the majority opinion that addresses this. In the main opinion of the majority, it says "the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868" which the above seems to be in response to, but the above ignores the footnote accompanying it that says "The principal dissent comes closest with the decision of New York’s intermediate appellate court in Ludlam v. Ludlam, 31 Barb. 486 (N. Y. Gen. Term 1860). When New York’s highest court heard the case, however, it did not follow the lower court’s reasoning; it relied instead on Lynch v. Clarke. See Ludlam v. Ludlam, 26 N. Y. 356, 376 (1863)."

We have already discussed Ludlam v. Ludlam. But what of the other cases? Let us examine the other ones cited. First, remember the assertion of the majority was "the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868." Here is, again, the cases cited by the dissent:

Inhabitants of Abington v. Inhabitants of N. Bridgewater, 40 Mass. 170, 176 (1839) (“domicil . . . fixes his allegiance”)

I see nothing about allegiance at birth in the case.

The Santissima Trinidad, 7 Wheat. 283, 347 (1822) (Story, J., for the Court) (a person cannot “throw off his own allegiance” without a “change of domicile”);

This decision is discussing about how someone can throw off their allegiance with a change of domicile later on in life. It is not saying anything about allegiance at time of birth.

Hodgson v. DeBeauchesne, 14 Eng. Rep. 920, 932 (Privy Council 1858) (“a settled domicile in a country, imports an allegiance to the country, very different, from a mere obedience to its laws during a temporary residence”);

This statement made in this case says nothing about allegiance or domicile at birth. 

Inhabitants of Calais v. Inhabitants of Marshfield, 30 Me. 511, 520 (1849) (“consent or change of domicile” required for “allegiance”).

This quote from this case is talking about changes after birth.

So the majority opinion statement holds true: "the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868", for none of these citations of the dissent refer to allegiance at birth. This is another case of how the dissent will make claims that look good, but when you go through the process of checking the citations, they do not actually prove the point it claims.

On page 23, we reach discussion of the Civil Rights Act. This has relevance in that, as was stated, the Citizenship Clause was seen as accomplishing the same thing as the Civil Rights Act in this area, but with better language.

Unfortunately, the dissent focuses primarily on what we previously discussed, namely Trumbull's statement about those "temporarily resident" and ignores the larger context of his statement that indicates he is talking about foreign ministers, as discussed above.

While this discussion is more in-depth than the one on page 3, it still suffers from the fundamental problem that Trumbull's statement of "temporarily resident" comes mere sentences after he talks about a child of a foreign minister "who is temporarily residing here" and thus ends up being a point against the dissent. There is no reason to believe that, right after talking about those "temporarily residing", the "temporarily resident" meant anything other than those he was talking about before, which was in regards to foreign ministers.

The dissent does bring up a few more points, which bear looking at. On page 24:

Likewise, when Representative James Wilson spoke in support of the Act in the House, he explained “that every person born in the United States is a natural-born citizen,” except, “it may be,” “children born on our soil to temporary sojourners.” Id., at 1117.

Notice the stretch here. Wilson does not even say they are excluded, merely that they "may be" excluded. Also, he does not seem to be talking specifically about what the Civil Rights Act does, but what he views as the situation beforehand.

Others confirmed that the Civil Rights Act excluded the children of temporary visitors. Representative Bingham described the Civil Rights Act as “simply declaratory” of pre-existing law, id., at 1291, which, he had already explained, required that a citizen be both “born and domiciled” in the United States, Cong. Globe, 35th Cong., 2dSess., at 983. Bingham understood the Act to grant citizenship only to children “of parents not owing allegiance to any foreign sovereignty.” Cong. Globe, 39th Cong., 1st Sess., at 1291.

The "born and domiciled" statement is from 6 years prior; this jumping around is most unwarranted. Thomas relies so much on the importance of domicile in his theory, and yet he has to jump back 6 years to a separate discussion to find it. This is the issue with legislative history (that is, discussions of a law in congress), how one can just jump around to find statements one likes. It is especially problematic in cases like this where words like "domiciled" are thrown out and simply assumed to be precisely what the dissent wants them to mean.

The one statement that deserves attention is the mention "of parents not owing allegiance to any foreign sovereignty." This is an odd interpretation of the Civil Rights Act, as it says nothing about parents in the text.

Still, here is Bingham's statement in paragraph:

"I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright, and neither the Congress nor the States can justly or lawfully take it from him. But while this is admitted, can you declare by congressional enactment as to citizens of the United States within the States that there shall be no discrimination among them of civil rights?"

Bingham's statement of people "of parents not owing allegiance to any foreign sovereignty" at first glance seems potentially problematic, but we must note several factors. First, his focus was not on the part about citizenship, but what came after (the above paragraph is a brief part of a larger speech which is focused on other portions of the Act). One should not put too much importance in side remarks; what is important is when people are directly discussing a clause (not only does that allow them to better articulate their points, it gives others an opportunity to take issue with anything erroneous in it). Second, what does he specifically mean by "owing allegiance to any foreign sovereignty" given he does not offer a clear definition? If one simply interprets this as referring to diplomats or foreign ministers (who obviously owe allegiance to their home country in a manner that a regular immigrant, even a temporary one, does not), then this invocation fails for Thomas.

Bingham's statement does not seem to me to be of much help to anyone here, for it could be interpreted in different ways, and Bingham was not even focusing on it that part of the law in his speech, but only making a passing reference to it.

With the goal of getting this post out in something even resembling a timely fashion, I won't go further on this discussion of the Civil Rights Act other than to point out again that I feel Ramsey's remarks on pages 451-454 of "Originalism and Birthright Citizenship" well cover this issue and that in regards to the Citizenship Clause itself, pages 20-21 of the majority opinion do a decent job also.

Nevertheless, one more point should be noted from page 24:

Unsurprisingly, then, the public interpreted the Act to guarantee citizenship to “all persons born in the United States,” except “those subject to foreign governments,” a class which included those born to “foreign parents temporarily sojourning in this country.” The Chicago Republican, Mar. 30, 1866, p. 4; see also K. Lash, Prima Facie Citizenship, 101 Notre Dame L. Rev. 101, 147 (2026).

Kurt Lash's Prima Facie Citizenship was critiqued by Michael Ramsey in "Birthright Citizenship Re-Examined" but our focus is on this mention in The Chicago Republican. But Thomas forgets or ignores that this was explicitly responded to by an amicus brief here, which mentions in a footnote on page 16: "

Petitioners point to a lone newspaper article as “ratification-era evidence” purportedly supporting the position that the ratifying public understood the Clause not to apply to temporary sojourners, see Pet’rs Br. 24, but that article merely inaccurately paraphrased President Johnson’s message vetoing the CRA before calling the veto a “betrayal of the national faith.” The Chicago Republican, Mar. 30, 1866, at 4.

This amicus brief also cites several sources that go against the things Thomas cites. 

We now move on and skip forward some. At the start, we noticed how Thomas's claim of the Executive Branch's understanding the Citizenship Clause to include a domicile requirement was problematic, but he does now move onto it in more depth on pages 32 onward (including the tail end of page 31). As discussed, opinions from decades later by people who in some cases may have been regretting or even originally disliked the Citizenship Clause are not so helpful, but he attempts to make citations of some that were earlier, which end up failing for him. Thus on pages 31-32 (mostly page 32) we see:

The Executive Branch understood the Citizenship Clause to exclude the children of temporary visitors. In 1873, President Grant’s Attorney General George Williams interpreted it to apply only to persons over whom the United States had complete jurisdiction: “[T]he word ‘jurisdiction’ must be understood to mean absolute or complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” 14 Op. Atty. Gen. 295, 300. It therefore excluded “[a]liens” over whom the United States had “only” a “limited” jurisdiction, even if they were “born here.” Ibid.

This claim of Thomas is very problematic. It is the sort of hack citation that one would expect on badly written blog posts, not a Supreme Court dissent.

First, it is a bit unclear as to why he says "295, 300" when he quotes nothing from page 295. Perhaps he does so to indicate 295 is the beginning of the applicable section. In any events, both quotes are from page 300.

But does page 300 really aid in Thomas's view? Not really. The question asked was:

"Can a person who has formally renounced his allegiance to the United States, and assumed the obligations of a citizen or subject of another power, become again a citizen of the United States in any way than in the manner provided by general laws?"

Notice the question is not asking about someone born in the United States, but if someone can renounce their citizenship and then gain it back. Thomas, quite frankly, is misrepresenting the source. Look at the scattered quotations he offers, some of which are presented by him in a rather different way than was originally. Here is the sentence his quotes come from, and I'll bold the parts he quotes:

"Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent."

We can see how bad his representation was. This is not about, as he claims, "children of aliens", this is about someone who was born here and then later became a citizen elsewhere (as it says "and naturalized abroad"). Which is, indeed, what the question being asked about is answering. This simply says nothing on the question of birthright citizenship.

I have some respect for Clarence Thomas. I am appreciative of how he is willing to reconsider essentially every precedent. I think his ideas are often questionable, but this has led him to come up with ideas that, while initially shocking, I ultimately find persuasive (e.g. that the incorporation of the Bill of Rights should be done via the Privileges or Immunities Clause instead of the Due Process Clause; that the Establishment Clause does not apply to the states; and that the Equal Protection Clause, at least in regards to non-citizens applies only to state law, not federal law). But in this case, his representation is so poor it feels like hack work.

Even worse, the very person he cites--Attorney General Williams--does have something to say on birthright citizenship elsewhere, which is cited by the majority opinion. As the majority opinion says:

"In 1872, for instance, Attorney General George Williams was called upon to determine the citizenship of a child born of Austrian parents only “temporarily residing” in New York City. 14 Op. Atty. Gen. 154. Citing the Citizenship Clause (and Bates’s 1862 opinion), Williams explained that “a person born in this country, though of alien parents who have never been naturalized, is, under our law, deemed a citizen of the United States by reason of the place of his birth.” Id., at 155. Thus the child “is a native of this country,” Williams concluded, “and as such was originally clothed with American nationality.” Ibid."

This is the very same Attorney General as Thomas cited! Yet he gives the opposite conclusion that Thomas attributes to him... because Thomas did not represent him accurately, whereas Roberts (majority opinion writer) does represent him accurately. You can see for yourself, but to quote:

"One François A. Heinrich, now resident in Austria, was born in the city of New York, in 1850, of Austrian parents, who were then temporarily residing in that city, but who never became naturalized. The family returned to Australia when François was about two or three years old, taking him with them, and he has resided there since the return of his parents to that country."

Heinrich then wished to avoid military service in Austria by claiming he was an American citizen. The attorney declares declared that François was a citizen of the United States at birth ("the said François is a native of this country, and as such was originally clothed with American nationality"). Although the attorney general concluded that François had subsequently lost American citizenship and became an Austrian citizen on the grounds of a treaty between the US and Austria established in 1870, he still clearly declared him to have been born an American citizen.

What does Thomas say to this? Thomas does try to address this, but rather ineffectually I think. On page 35 he says:

Even the most expansive executive interpretation of the Citizenship Clause ultimately denied citizenship to a child born here but domiciled abroad. When Francois Heinrich, born of parents who ultimately returned to their native Austria, claimed to be an American citizen, President Grant’s Executive Branch did say that he was “‘originally clothed with American nationality.’” Ante, at 13 (majority opinion). But, it then promptly denied Heinrich’s claim to American citizenship. Heinrich was instead—despite being born in the United States—a citizen of Austria, where he was domiciled: “Francois A. Heinrich should be held by the United States to be an Austrian subject, and treated as such; . . . he is not an American citizen.” Letter from Sec. of State H. Fish to Baron Lederer (Dec. 24, 1872), in 2 Wharton Digest 395–396. 

But the whole reason for this was the specific fact that, as is noted, the United States and Austria had an agreement that "Citizens of the United States of America who have resided in the territories of the Austro-Hungarian monarchy uininterruptedly at least fie years, and during which residence have become naturalized citizens of the Austro-Hungarian monarchy, shall be held by the United States to be citizens of the Austro-Hungarian monarchy, and shall be treated as such." Fish concluded that, because François "has at different times obtained passports from the Austrian government and traveled under their protection as an Austrian subject, taken in connection with the length of time during which he has resided in Austria, may, I think, be viewed as sufficient manifestation of consent on his part, at those periods especially, to be a member of that nation."

Essentially, he concluded that François had as a result of this naturalized himself as an Austrian and therefore, according to the agreement, had lost American citizenship. Unless the United States has such an agreement with a country, it does not apply.

One may be wondering why we do not have such laws now. That is because, in the 1967 Supreme Court case Afroyim v. Rusk, the Supreme Court said that a US citizen could not lose their citizenship unless they voluntarily relinquish it (some later cases offered some exceptions to this). Perhaps, those displeased with Trump v. Barbara could begin a campaign to overturn this decision, for from an admittedly cursory examination, it looks to me like its rationale was weaker than that of Barbara's, and indeed an overturn of Afroyim would allow legislation that would negate some of the problems people have with Barbara regarding children of temporary immigrants.

But regardless of Afroyim, the fact remains: This case of François does not aid Thomas.  

Thomas then gives a more detailed version of his claim regarding the re-enactment of the Civil Rights Act and appeals to The Slaughter-House Cases, which we discussed early on. Despite the greater detail, I don't see anything here that I didn't already respond to when we discussed them earlier. His invocation of the Slaughter-House Cases continues to be puzzling given it again is not even in agreement with his own theory.

There is something else that I find problematic about these claims, as well as others made; it is how one-sided his depiction is. He has clearly read articles arguing for a restrictive reading of the Citizenship Clause, but seems unaware of or at least is largely uninterested in engaging with arguments from the other side. Ordinarily, perhaps one could excuse him for not reading the articles if he was only sticking with the amicus briefs... but he does cite articles. One, for example, is Kurt Lash's Prima Facie Citizenship. But he seems unaware of Michael Ramsey's critique of that article in Birthright Citizenship Re-Examined. Certainly he would have been aware of Michael Ramsey's earlier article, Originalism and Birthright Citizenship, for various amicus briefs cite it.

Indeed, as is noted in this analysis of the opinion:

"On the scholarly dimension, Justice Thomas’s engagement is real but one-sided. He engages the originalist scholarship that supports the narrow reading—Lash repeatedly, and Wurman—and he engages it seriously, drawing on Lash’s reconstruction of the debates and Wurman’s account of jurisdiction and citizenship. What is absent is any engagement with the originalist scholarship that reaches the opposite result. Michael Ramsey, Keith Whittington, James Heilpern, Akhil and Vikram Amar—none appears. Most striking, given the dissent’s claim to be vindicating the original meaning, is the absence of James Ho, who argued years ago, as a matter of original public meaning and well before this controversy was politically salient, that the Clause confers citizenship on the children of aliens including the unlawfully present. The point is not that Justice Thomas was obligated to agree with these scholars. It is that an opinion resting its result on original public meaning, and engaging the originalist literature on its own side, owes the reader an account of the strongest originalist work against it." 

There is not terribly much extra to comment on for a while that is not already covered, directly or indirectly, by either the majority opinion or by this post already. However, I should note the following. Trump's Executive Order applied to both children of temporary and illegal immigrants. After thundering on regarding the domicile claim and temporary residents for nearly 60 pages on his domicile theory, Thomas's only real remarks on illegal immigrants is in a footnote on pages 57-58, where he says he expresses no definite opinion on the subject of whether illegal immigrants, and he does not feel the need to give a definite answer as this was a facial challenge to the Executive Order. A facial challenge is when someone says a law or action is not merely unconstitutional in some applications, but is unconstitutional on its face. As Thomas believes he has established the Executive Order is not entirely unconstitutional, it would require as-applied challenges for things like this. But for those who complain about children of illegal immigrants being citizens, it should be noted that Thomas's dissent does not necessarily endorse your interpretation.

After some more repeating of his prior claims (Thomas could have easily cut down his dissent had he simply removed the redundancy), he finally begins to more directly address the majority opinion on page 60. I want to respond to a few things he has to say here.

The majority opinion says--quite correctly, in my view--that the natural interpretation of "subject to the jurisdiction" of the United States is to mean fully subject to the laws of the United States. That is the normal meaning of jurisdiction, and indeed during the Citizenship Clause debates Trumbull made a reference to how if Native Americans were subject to the laws of Colorado, they would be citizens (the majority opinion, regrettably, leaves out this quote). I will not simply repeat the arguments the majority opinion makes to establish this, however; one can read that.

Thomas writes on page 61:

Although the Court gestures toward diplomatic immunity as a basis for this exception, diplomatic immunity extends to “only a narrow set” of “diplomatic official[s],” not to all foreign representatives. Brief for Sen. Ted Cruz et al. as Amici Curiae 28–29. Most foreign officials receive a partial immunity, such as immunity for their official acts. See Dept. of State, Diplomatic and Consular Immunity (July 2019), www.state.gov/wp-content/uploads/2019/07/2018-DipConImm_v5_Web.pdf (archived at perma.cc/LK63-C3YL). But, partial immunity cannot render a person not “subject to the jurisdiction” of the United States for Fourteenth Amendment purposes. After all, a variety of clearly American government officials such as judges, prosecutors, and police officers—have similar partial official immunity. 

Thomas here ignores several things. First, the Citizenship Clause concerns the person who is born. What matters is not the amount of diplomatic immunity that their parents have, but how much the child has at the time of their birth. This is an issue that repeatedly occurs in Thomas's opinion, too much of a focus on parents; but prior to this he at least tried to somehow link the children's status to the parents. That brings us to the second, and more pertinent issue. Diplomatic immunity is shared with the child of a diplomat. But no one as far as I know believes that the children of judges, prosecutors, and police officers in any way retain whatever immunity their parents have.

On pages 62-63: 

Third, the Court says, a person is not subject to the jurisdiction of the United States when he is a “membe[r]” of an “alien and sovereign” nation. Ante, at 5 (internal quotation marks omitted). This category reflects the Court’s attempt to accommodate the historical record that the Citizenship Clause excluded the children of Indians in tribes. See Part I–D–1–b, supra. But, the Court cannot explain why tribal Indians were not “subject to the jurisdiction” of the United States if they happened to be born outside Indian lands while foreign temporary visitors were. It is true that tribal Indians belonged to “alien and sovereign” nations and that the United States’ relations with them implicated “intersovereign concerns.” Ante, at 12. But, temporarily visiting foreigners also belong to “alien and sovereign” nations, and the United States’ relations with them also implicate “intersovereign concerns.” It is difficult to understand why China, for example, would be less alien or less sovereign than the Cherokee Nations. It is also difficult to understand why tribal Indians would be less entitled to American citizenship if born on non-Indian land within the United States than children of birth tourists who immediately returned to China.

Thomas's entire counterargument here rests on the idea that Native Americans that "happened to be born outside Indian lands" are not subject to the jurisdiction of the United States. But where does he get the idea they are not? I am not sure where he gets the idea that is the majority's contention. Unless I missed something, it does not opine specifically on that subject. The interpretation I would take is that under the Citizenship Clause, should a Native American temporarily traveling outside of their reservation give birth, that child would be a United States citizen. I do not know if that is the opinion of the majority given it does not directly talk about this case, which in the present day is irrelevant due to the Indian Citizenship Act anyway. Perhaps that is something they should have addressed more explicitly. Still, Thomas is apparently unable to point to any statement of the majority opinion that explicitly says such Native Americans were not citizens (the citations he gives, to pages 5 and 12, do not say that). While I cannot speak for the majority, my assertion would indeed be that such Native Americans would be citizens under the Fourteenth Amendment.

Perhaps Thomas is asserting that Native Americans born outside of Indian lands were not regarded as citizens? If so, I am not sure where specifically he argues this. The only citation he offers is "Part I-D-1-b". Having looked at that (pages 24-26), I do not see him offer an argument that such Native Americans were not regarded as citizens. Thus, Thomas seems to be simply assuming that children of Native Americans temporarily off of their lands they did not qualify and using that argument, but does not offer evidence that they did not qualify. Again, maybe that is somewhere in the opinion, but I didn't see it, and it isn't in the only thing he cites, Part 1-D-1-b (unless we are supposed to consider page 12 with the "Ante, at 12" but that does not discuss it either).

Thomas then goes on to assert things like "The Court likewise cannot explain...", "It does not meaningfully engage with...", "And, it has no account..." I believe that, if one reads the majority opinion, it does properly address those issues. I invite people who may have only read the dissent to look at the majority opinion. I read the dissent first and thought that, while I did not find it persuasive, it did make me think the majority opinion did not adequately address its points. Then I read the majority opinion and saw that it did engage with them. Meanwhile, the dissent fails to grapple with various things in the majority opinion, such as when on page 22 of the majority it observes "When the principal dissent does grapple with the operative legal text—“subject to the jurisdiction” of the United States—it has little to say." Indeed, it is very notable how little time the dissent spends on the actual text of the Citizenship Clause, with apparently more focus on the Civil Rights Act rather than the actual text under discussion.

One point I was originally going to skip over was his footnote on page 67 about the Mogridge v. United States decision, but during the writing of this post, I happened upon this post which asserts Thomas misunderstood the decision. This specific issue is not of great importance to me, but one may read that post if they wish.

Thomas then goes on to re-repeat some of the claims he made that we already discussed and then re-re-repeat them. To name just one of the many examples, what we find on page 71:

The Court’s account does not make sense. To begin, the postratification evidence against the Court’s view begins not “nearly two decades after the Fourteenth Amendment’s ratification,” but immediately. Ante, at 13. Well before the Court has any explanation for a departure from its view, all three branches of the Federal Government had already rejected it. In 1870, Congress interpreted the Citizenship Clause to require that a child born here be “not subject to any foreign power.” See 16 Stat. 144 (reenacting Act of Apr. 9, 1866, 14 Stat. 27). In 1873, the Supreme Court interpreted the Citizenship Clause to “exclude from its operation children of . . . citizens or subjects of foreign States born within the United States.” Slaughter-House Cases, 16 Wall., at 72–73. And, the same year, President Grant’s Attorney General interpreted the Citizenship Clause to exclude the children of “[a]liens” over whom the United States had “limited” jurisdiction even though they were “born here.” 14 Op. Atty. Gen., at 300. 

Except we have already discussed why the 1870 law is simply him assuming his viewpoint, how the 1873 Supreme Court case is useless (and disagrees with him!) and how he has misrepresented Grant's Attorney General and not adequately explained the separate quote the majority uses from him.

This does create a fault of the majority, unfortunately; because Thomas brings up the above arguments so often, a more direct response by the majority would have been preferable. They should have at least responded on the Slaughter-House Cases and attorney general one, I think; it would not have enlarged the majority opinion that much and would have negated all of the times Thomas repeats and re-repeats and re-re-repeats the claim. I have seen some people say Thomas's dissent being longer is because it's in better detail; reading it again in full, it's obvious to me a major reason for its high length is instead how redundant it is.

A few more brief remarks. On page 73, Thomas claims "if the Court were right that the Citizenship Clause did not require domicile, then it would have increased dual nationality, which would have provoked concern among 19th-century Americans" and attempts to offer evidence of the concern it would have provoked. Even if we accept that, the problem with this argument is that the United States at the time would have been regarded as having the tools to deal with such things. The Fourteenth Amendment was ratified on July 9, 1868. It was around this time that the United States began passing the "Bancroft Treaties"--two of them actually before this point, including the Prussian one I discussed in the case of François--which made dual citizenship harder to maintain. Laws and treaties of this nature would have solved the problem. It would not be until about a century afterwards that the Supreme Court, in Afroyim v. Rusk, declared such laws unconstitutional (at least when the person is born in the United States). Thus this point of his seems negated.

On page 74:

Second, the domicile rule aligns national citizenship with the longstanding rule for state citizenship. Even after the Court’s decision today, Americans are citizens of only the State of their domicile, even if it is not the State of their birth. Wachovia Bank, 546 U. S., at 318. No one doubts that a child born to New Yorkers on vacation in Florida would be treated as domiciled in, and a citizen of, New York. Brief for Sen. Eric Schmitt et al. as Amici Curiae 7, n. 2. For the same reason, one would think that a child born to Canadians on vacation in Florida should not be a citizen of the United States. The Court, in other words, rejects and is bewildered by an approach to citizenship that is in fact the one we still know best.

But the Citizenship Clause says they are citizens of the state in which they reside. It does not say anything about residing in the United States. And if someone thinks they should be read together, then that would give the absurd result that people born in the District of Columbia would not be citizens.

On page 80, Ludlam v. Ludlam is invoked again, again ignoring the problems with it described here and for that matter described even in the majority opinion. 

On page 87, we see: 

The Court’s responses to my view also undermine its own. The Court criticizes my view for depending on “the parents’ status, not the child’s.” Ante, at 14. But, the Court’s view depends on the “parents’ status,” too. The Court, for example, excludes from citizenship the children of “representatives of foreign sovereigns” or enemy invaders. Ante, at 3, 15. Unless newborn babies are serving as inter- national diplomats, the Court’s account thus turns on parents’ status.

The key difference here, again, is that the babies share the diplomatic immunity of their parents. It is true that as a practical matter of not being tried, this is not very important, given that newborn babies lack the mental capacity to commit any crime. Still, it ultimately is the status of the child that matters, even if that is due to their parents.

Along the same lines, the Court asks why “[w]ords appearing frequently in the Executive Order— ‘mother,’ ‘father,’ ‘lawful,’ ‘temporary’—are absent from the Clause.” Ante, at 22. But, again, if that is a problem, then it is one for the Court’s theory as well. After all, the Court’s exceptions—for “foreign representatives,” “Indians,” and invading “enemies”—do not appear in the Clause, either.   

The issue is, we know precisely why these do not appear in the Clause. The history of the wording of the Civil Rights Act and the Citizenship Clause, even before anything was submitted to Congress, is given here by Senator Trumbull (page 572 the Congressional Globe of 1866 First Session (February 1):

 "The Senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States and who owe allegiance to it. I thought that might perhaps be the best form in which to put the amendment at one time, “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;” but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer.
Then it was suggested that we should make citizens of all persons born in the United States not subject to any foreign Power or tribal authority. The objection to that was that there were Indians not subject to tribal authority who were yet wild and untamed in their habits, who had by some means or another become separated from their tribes and were not under the laws of any civilized community, and of whom the authorities of the United States took no jurisdiction. The Senator from California [Mr. CONNESS] told us that there were in his State Indians who had been placed upon reservations under charge of Indian superintendents who had been separated from their tribes and were not under any tribal authority, but they were there under the regulations of treaties which had been made with them, and were supplied and looked after by our Indian agents the same as other Indians who were perfectly wild, not submitting at all to the usages of civilized life, and it could not be intended to make that class of persons citizens.
Then it was proposed to adopt the amendment as it now stands, that all persons born in the United States not subject to any foreign Power, excluding Indians not taxed, shall be citizens. What does that phrase "excluding Indians not taxed" mean? The Senator from Missouri understands it to be a property qualification to become a citizen. Not at all. It is a constitutional term used by the men who made the Constitution itself to designate, what? To designate a class of persons who were not a part of our population. That is what it means. They are not counted in the census. They are not regarded as part of our people. The term "Indians not taxed" means Indians not counted in our enumeration of the people of the United States." 

So we see how there were several attempts at wording. What gave them particular trouble was the issue of the Native Americans. After several attempts to find something that excluded them, Trumbull settled on "Indians not taxed" but this caused much confusion during the discussion; the whole reason he gave the above speech was to try to explain it, which then lead to more people trying to get clarification. It was clear that the term's meaning was not readily understandable.

The Citizenship Clause, which had the purpose of accomplishing the same goal, did not have the term "Indians not taxed". It instead replaced both that portion and the one about not being subject to a foreign power with the jurisdiction language. A Senator then immediately suggested they add "excluding Indians not taxed" in. Thus created a lengthy debate on the question of whether "subject to the jurisdiction" included them. Key for our purposes, namely the reason for the change, is that Trumbull talked about the subject again (Congressional Globe May 30, 1866, Page 2,894):

"We had a discussion on the civil rights bill as to the meaning of these words, "excluding Indians not taxed." The Senator from Maryland, I think, on that occasion gave this definition to the phrase "excluding Indians not taxed," that it did not allude to the fact of taxation simply but it meant to describe a class of persons; that is, civilized Indians. I was inclined to fall into that view. I was inclined to adopt the suggestion of the Senator from Maryland, that the words "excluding Indians not taxed" did not mean literally excluding those upon whom a tax was not assessed and collected, but rather meant to define a class of persons, meaning civilized Indians; and I think I gave that answer to the Senator from Indiana, who was disposed to give it the technical meaning that "Indians not taxed" meant simply those upon whom no tax was laid. If it does mean that, then it would be very objectionable to insert those words here, because it would make of a wealthy Indian a citizen and would not make a citizen of one not possessed of wealth under the same circumstances. This is the uncertainty in regard to the meaning of those words. The Senator from Maryland and myself, perhaps, would understand them alike as embracing all Indians who were not civilized; and yet, if you insert that language, "Indians not taxed," other persons may not understand them that way; and I remember that the Senator from Indiana was disposed to understand them differently when we had the discussion upon the civil rights bill. Therefore I think it better to avoid these words and that the language proposed in this constitutional amendment is better than the language in the civil rights bill. The object to be arrived at is the same."

So between these two speeches, the reason becomes clear. They wanted to exclude both Native Americans that were living under their own authority (recognized by the US government) and those who were living in the then-untamed areas under no tribal authority but had difficulty finding a good phrase to encompass them. They thought "Indians not taxed" was a way to do it, but it clearly caused problems, so they wanted to find something that would both include them and the other exceptions, and settled upon "subject to the jurisdiction" of the United States as a way to Native Americans and the others they wanted excluded. This answers Thomas's objection.

Indeed, what does Thomas think they should have said it if they were to express the majority's opinion? It has already been established they, when coming up with phrases that were specifically referring to the Native Americans, struggled to find one that worked and wouldn't be misunderstood. They could hardly simply say that "Indians" were excluded, as Thomas seems to suggest, for they obviously wanted to include what were considered "civilized Indians", those who left their tribes to live along ordinary Americans. And the other possibilities were ruled out for the above reasons. They ultimately settled on the current wording in order to finally find something that ruled out the Native American tribes without the term "Indians not taxed" while excluding the other exceptions they wanted.

For the record, Trumbull goes on to say the following to explain how the Native American tribes did not qualify, and one cannot help but notice how he puts emphasis on the question of laws applying to them:

I have already replied to the suggestion as to the Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States; and the Senator from Maryland, if he will look into our statutes, will search in vain for any means of trying these wild Indians. A person can only be tried for a criminal offense in pursuance of laws, and he must be tried in a district which must have been fixed by law before the crime was committed. We have had in this country, and have today, a large region of country within the territorial limits of the United States, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them. They would not be embraced by this provision.  

Statements such as this are not discussed in the dissent that I see. (I do wish the above quote had been explicitly noted in the majority opinion)

After some more repetitions of claims he already made and in most cases already discussed in this post--again, Thomas's opinion would have been much shorter had he not repeated himself so often--Thomas is finally done. I will be fair and say he has probably marshaled forward the strongest argument I have seen for his position... unfortunately, if this is the best they can do, they still fail compared to the arguments of the majority.

Alito's Dissent Examined

After all of this, it seems almost an afterthought to discuss Alito's dissent. There seems much less to say about it, not necessarily because there is less to criticize, but because I find it largely incoherent. Thomas's dissent, while having various problems, at least presents a something of a coherent vision regarding domicile. Alito's opinions are more confusing and difficult to figure out.

It should be noted, for the record, that Alito and Thomas's dissents do not seem reconcilable. They may both disagree with the majority opinion, but they disagree with each other. If someone tries to claim they agree with both, then they should be asked which they agree with, because you can't say both. Those who make statements like saying "Thomas and Alito had it right" show they do not know what the two even argued, for their positions are not reconcilable in any way that I see.

Still, we now turn to Alito's opinion. I will have substantially less to say to this, as some of its points are already discussed before and some are already handled by the majority opinion. I will note that he at least, unlike Thomas, attempts to pay better attention to the text of the opinion. Indeed, on a number of cases I feel Alito comes close to getting things right... but then retreats from the proper interpretation. So I have fewer comments.

Second, the phrase “subject to the jurisdiction” of the United States applies not only to those who are born in this country but also to those who are “naturalized.” After all, Congress would not include both qualifiers unless they were both doing some work. See Bufkin v. Collins, 604 U. S. 369, 386 (2025). Accordingly, there must be some people who are naturalized but are not “subject to the jurisdiction” of the United States. In other words, whatever “subject to the jurisdiction” of the United States means, it must mean something that is not inherent in naturalization.

Why would it not? Remember, the full phrase is "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Alito might have a point if it was simply "All persons naturalized in the United States, and subject to the jurisdiction thereof" but that is not the case; it says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof." Thus, even if naturalized and subject to the jurisdiction are redundant, that does not mean this is the case for born in which is also included.

Earlier on I noted how Thomas did not explain how, in his view, Congress would have passed the Citizenship Clause if it had wanted to enact what the majority thought it would. Alito at least offers a possibility (bolding and strikeout original):

The other exception—for the children of diplomats—was one that had been recognized under the British rule and was endorsed by leading authorities on the law of nations. E. de Vattel, The Law of Nations §217, p. 103 (1797). This was a minuscule category at best, and Congress could have preserved the exception with narrow language applicable only to the members of that group. For example, it could have said something like this: “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed and the children of foreign diplomats, are hereby declared to be citizens of the United States.” Congress did not take that approach. It chose instead to identify what it understood to be the character- istic that called for the exception and to deny birthright citizenship to anyone who shares that characteristic. That characteristic, as Congress saw it, was being “subject to any foreign power.”       

While it is amusing to see an actual usage of strikeout text in a Supreme Court opinion, the claim itself still strikes me as odd. In the first place, this would not have answered the issue, for as I understand it staff of foreign diplomats still have diplomatic immunity, even if they are not diplomats themselves. How does one specifically quantify who qualifies, particularly in a brief constitutional statement Ultimately, it's simply whether those people are subject to the foreign powers, whether they are ambassadors, aides to ambassadors, or some other category of people who are such due to being subject to a foreign power, hence why they went with that.

Alito then goes on to try to argue that if we talk about jurisdiction in the sense of laws applying to, Native Americans did qualify, and that means jurisdiction cannot simply mean subject to the laws of. But Alito is unable to point to any examples of such things prior to the Fourteenth Amendment. His best attempt is: 

In 1817, for example, federal criminal jurisdiction was extended to many crimes committed within the Indian country, Act of Mar. 3, 1817, ch. 92, 3 Stat. 383, and the Indian Trade and Intercourse Act of 1834, §25, 4 Stat. 733, extended that jurisdiction. 

What Alito misses here, which is very important, is that this has nothing to do with Indian-on-Indian crime, so to speak. It means, essentially, that if a non-Native American is killed by a Native American, in either the main United States or a Native American territory, they can be tried. (this also applies in the inverse, of a Native American being killed by a non-Native American) The first law law, which can be viewed here, explicitly says "Provided, That nothing in this act shall be so construed as to affect any treaty now in force between the United states and any Indian nation, or to extend to any offence committed by one Indian against another, within any Indian boundary."

At the time of the Fourteenth Amendment, the United States did not take any jurisdiction of crimes committed by one Native American on another (this was a point that Trumbull noted in the Citizenship Clause Senate debate, that the United States did not take jurisdiction of such things, and cited it as how they are not subject to the jurisdiction of the United States). Therefore, they did not fall under the jurisdiction of the United States.

Let us put it another way. If a Mexican kills a Mexican in Mexico, does the United States take jurisdiction over the case? Of course not. But the United States does have a claim if a Mexican kills a Mexican in America, or if a Mexican kills an American in America, or even if an American kills a Mexican in Mexico. There might be some shared jurisdiction between the United States and Mexico required for figuring out if the person would be tried in the United States or Mexico, but the point is the United States has some claim to jurisdiction over it. That is the key point, if the United States has full jurisdiction over the area.

Now let's move onto the other law, which can be found here (one will have to scroll down to page 733 though). The part Alito seems to think is key is section 25, which is on that page. This says "That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country: Provided, The same shall not extend to crimes committed by one Indian against the person or property of another Indian."

We see the same thing here. It was not until after the Fourteenth Amendment was enacted that the United States actually began to try to take ownership of crimes of one Native American against another on tribal land, and even then only to a limited extent (that is, what were deemed "major crimes"). Alito does not interact with this fact. 

In addition, treaties repeatedly described tribes as within the “jurisdiction” of the United States. E.g., Treaty Between the United States and the Navajo Tribe of Indians, Sept. 9, 1849, 9 Stat. 974 (ratified Sept. 24, 1850); Treaty Between the United States and the Utah Indians, Dec. 30, 1849, 9 Stat. 984 (ratified Sept. 9, 1850); Treaty Between the United States and the Apache Nation of Indians, July 1, 1852, 10 Stat. 979 (ratified Mar. 23, 1853).

This is an odd claim to make. Alito agrees that the Native Americans are not subject to the jurisdiction of the United States in the Fourteenth Amendment, yet he appeals to treaties that say they are? Clearly the meaning of "jurisdiction" here is different than that of the Fourteenth Amendment.

In any event, none of these treaties subjected the tribes to the full laws of the United States. The Navajo treaty only said that the laws engaging regulation of trade would apply (and the mention of jurisdiction seems to be chiefly in reference to the fact that they were in land previously owned by Mexico that was ceded to the United States). The same is true for the Utah Indians treaty. The Apache treaty is the only one that seems to be of help, as it says that they shall declare "that they are lawfully and exclusively under the laws, jurisdiction, and government of the United States of America, and to its power and authority they do hereby submit." The problem is, despite this verbiage, there seemed to be no exercise of this power in this treaty by actually putting them fully under the laws of the United States, nor does there seem to be any law independent of the treaty that did (we have already seen the ones Alito cited do not aid him).

Indeed, like others, the treaty says "Should any citizen of the United States, or other person or persons subject to the laws of the United States, murder, rob, or otherwise maltreat any Apache Indian or Indians, he or they shall be arrested and tried, and upon conviction, shall be subject to all the penalties provided by law for the protection of the persons and property of the people of the said States." If they were fully under US law, this would seem completely redundant. Indeed, given by Alito's claims they would be subject to the laws of the United States, this would mean the United States was taking ownership of murders and robberies among the Apache, as if one Apache kills another, it means they (someone subject to the laws of the United States) have killed an Apache, and thus fall under this portion. But we know the United States does not appear to have been doing that with the Native Americans prior to the Major Crimes Act.

Thus most plausibly this sweeping language simply was them accepting the laws of the United States regarding things like trade with the Native Americans and the fact that when crimes involve United States citizens, the United States has the ability to take jurisdiction of them. 

Even if we were to suppose that the Apache were a total anomaly in this regard, and the United States was in fact subjecting them fully to US laws, that would simply mean they were an anomaly and would have gained birthright citizenship, unlike the other tribes. The 14th Amendment was passed by Congress in 1866. At that point, the treaty with the Apache in force appears to have been this one. By the time the Fourteenth Amendment was passed, it looks to me like the treaty Alito cited was superseded by a later one that did not use the jurisdiction language. 

So for all of the above reasons, these treaty appeals do not aid Alito.

Likewise, this Court held that Indians were “within our jurisdiction and subject to our laws.” United States v. Coxe, 18 How. 100, 104 (1856). Thus, tribal Indians were subject to the jurisdiction of the United States in the sense that they could be and were governed by federal law, but they were not subject exclusively to federal law because they were also governed by tribal law. For that reason, their children did not become citizens at birth.

The full name of this case is "United States, Use of Jame Mackey et al. Plaintiffs in error, v. Richard S. Coxe". I have noted that some refer to it instead as Mackey v. Coxe. The mention of 1856 may have been in error; the case here says 1855.

But this did not say "that the Indians were "within our jurisdiction and subject to our laws." It said the territory was. Its exact words were: "The Cherokee country, we think, may be considered a territory of the United States, within the act of 1812. In no respect can it be considered a foreign State or territory, as it is within our jurisdiction and subject to our laws." It is talking not about the people, but the land. In fact, earlier it says "The Cherokees are governed by their own laws." This point is made well in an amicus brief that was filed for this case, which Alito should have read and thus he cannot plead ignorance. On page 11, it notes:

The sole question in Mackey was whether a District of Columbia law requiring full faith and credit to probate documents issued by other domestic jurisdictions encompassed the Cherokee Nation. 59 U.S. at 102. The Court found that it did, affirming that “[t]he Cherokees are governed by their own laws.” Id. Petitioners extract a few words from the opinion to claim it establishes U.S. authority over Cherokee people. Pet. Br. 38. In context, however, the quoted phrase merely reiterated the holding of Cherokee Nation v. Georgia that the tribal territories were not foreign because they were geographically within the United States: “The Cherokee country, we think, may be considered a territory of the United States …. In no respect is it a foreign State or territory, as it is within our jurisdiction and subject to our laws.” Mackey, 59 U.S. at 104; see Cherokee Nation, 30 U.S. at 17. But the claim that the United States regulated Cherokee territory was uncontroversial, reflecting its long-standing practice of governing non-Indians there. See, e.g., Act of July 22, 1790, 1 Stat. 137.

It is a bit annoying to see Alito cite Coxe when the problem with it was explicitly pointed out to him. Did he neglect to read this amicus brief? Did he forget about it? Did he not find it persuasive? If the latter, he offers no counterargument to it.

Moving onto page 18, Alito tries to deal with the majority opinion. 

First, it gives the Fourteenth Amendment’s citizenship test a meaning that plainly differs from that in the Civil Rights Act, even though it is beyond any reasonable dispute that Congress did no such thing. Accord, ante, at 26–31, 63–64 (THOMAS, J., dissenting). To justify its departure from the Civil Rights Act, the Court argues that the Act “raises more questions than answers” and that the Four- teenth Amendment “‘better’ expresses the views of the Reconstruction Congress.” Ante, at 24. But, as I see it, deciding whether someone is “subject to any foreign power” raises far fewer questions than deciding whether that person is “subject to the jurisdiction” of the United States. The Court’s commitment to avoiding the straightforward text of the Civil Rights Act strongly suggests that something is amiss. 

But again, the Civil Rights Act can easily be read to view "subject to any foreign power" as referring only to children of ambassadors and the like. I will give Alito one point in that I do think the majority opinion could have done a better job on this point... nevertheless, it does an adequate job, and the language of the Civil Rights Act can easily be interpreted in accordance with the majority's interpretation. Alito and Thomas keep trying to hammer away on this "subject to no foreign power" point despite the fact that they are really only reading their opinion into the text. 

Alito then gives several claims about how "the Court cannot explain..." even though the problem is his premises are flawed for reasons already given.

Alito goes on to complain on page 19 that "The Court does not confront these problems because it pays little attention to the constitutional text. Instead of performing its own textual analysis, the Court leans on precedent that glosses the text."

It seems to me this is something Thomas is far more guilty of than the majority opinion, so it seems to me Alito should be taking Thomas to task for this more so (remember, Alito's reasoning is in tension with that of Thomas, hence presumably why he wrote his own separate dissent). Regardless, the Court does discuss the text. Its discussion is a bit short, but I don't think there's much need to focus that much on the text, simply because a straightforward interpretation fits the majority opinion. If someone were to simply read the text, be given a dictionary, and ask what it means, the normal interpretation would be to say it means laws. I think it requires a strong amount of evidence that jurisdiction meant something unusual here if someone is going to try to interpret it otherwise, and the dissents lack that evidence.

Alito then trots out the same tired arguments from the ratification debates, ignoring the problems with them. For example:

Senator Lyman Trumbull, the author of the citizenship clause in the Civil Rights Act, explained just what the new amendment meant: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ . . . What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means.” Id., at 2893 (emphasis added).  

Oddly, Alito does not go on to quote what Trumbull says immediately afterwards, namely when he says "Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means." Note his example of how they are not subject to the jurisdiction of the United States is you cannot sue them in court; last I checked, one can sue temporary and illegal immigrants.

Even more problematic for Alito is what Trumbull says elsewhere, drawing a clear link between being subject to the laws and being subject to the jurisdiction:

"Mr. TRUMBULL. The Senator from Ohio says they ought to be. If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is "subject to the jurisdiction of the United States." Would the Senator from Wisconsin think for a moment of  bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."

Twice Trumbull equates being subject to the jurisdiction with being subject to the laws. And again his examples do not apply to immigrants: We absolutely do take jurisdiction of murders and robberies and other crimes committed by them upon another when they take place in the United States. This is a quote I do wish the majority opinion had included.

With this in mind, Alito's subsequent claims, which rely on this claim of his, are rendered moot. Alito amusingly complains "Those who disagree with this interpretation have not found any statement in which another Senator expressly disputed Senator Howard’s and Senator Trumbull’s interpretation of the amendment." I agree that no Senator expressly disputed their interpretation of the amendment... the problem for Alito is that those Senators do not agree with Alito's interpretation.

Alito then cites the Slaughter-House Cases as Thomas does, ignoring again the problematic fact this was passing dicta and does not even seem to agree with Alito's own interpretation, along with several other decisions where he wrenches more out of them than they actually say.

Alito goes on to express far more doubts about Wong Kim Ark than Thomas did, but I do not think further discussion on that point is necessary here. I will make just a few points; Alito complains about them interpreting "subject to the jurisdiction" and "subject to a foreign power" differently, ignoring that "jurisdiction" and "foreign power" are different terms, and in any event this seems to largely ignore the fact what we are talking about is the child, not the parents.

Alito also does not seem to explain properly why he thinks a child of an American citizen and a temporary immigrant would be a citizen under the Citizenship Clause, for surely under his impression that child would be subject to the other parent's country, would it not? Indeed, this is a problem with Alito's dissent, which is that it leaves it very unclear who precisely does qualify under the Fourteenth Amendment. 

Alito then makes a very confusing decision to spend pages 28-36 complaining about bad immigration policy leading to the present situation. What this has to do with the actual judgment, I am unsure. Things like this make it much harder to argue that Alito's opinions are not simply the result of his partisan desires, if he is going to insert what is essentially a policy rant into the text of his opinion. After he goes off on his irrelevant rant, Alito argues:

A great many persons who are born here to illegal immigrant parents fail this test because at birth they are automatically made nationals of their parents’ native country and, as a result, incur duties to that country. This means that they are “subject to a foreign power” and are thus not “subject to the jurisdiction” of the United States within themeaning of the Fourteenth Amendment.

But people who are born here to non-illegal immigrants can have this happen also. Why, precisely, would this not disqualify those born to two permanent residents who are citizens of other countries, if those countries have such similar laws? Look, for example, as his first example:

This is illustrated by the laws of countries on the list of those from which the greatest number of illegal immigrants come.14 Mexico is at the top of that list, and under Mexico’s constitution, the child of a Mexican parent can become a Mexican national at birth and acquires certain duties to the government. See Political Constitution of the United Mexican States, Arts. 30, 31 (1917). Among these are the obligation to receive military training and to join the National Guard. Art. 31.

But again, if this is the issue--that they would be made a citizen of another country at birth and have duties to it--why precisely is this not the case for anyone in the US who has a parent who is a Mexican citizen, even if their other parent is a US citizen? Alito does not seem to offer a coherent response to this, which the majority opinion calls him out on:

"If the test truly is whether a person is “amenable to the laws” of two governments at once, post, at 14 (THOMAS, J., dissenting), then it is a test that every child born to a foreign parent fails—a result that even the principal dissent cannot stomach. JUSTICE ALITO seems to recognize this bind, so he would create an ad hoc exception for those whose parents have “done everything within their power . . . to become Americans.” Post, at 27. He does not explain how that exception can be squared with his view of the text, which (to repeat) is that anyone “automatically” made a “national[]” of his “parents’ native country” was not entitled to citizenship under the Civil Rights Act. Post, at 37."

For that matter, it would seem that one does not even need a foreign parent to fail this test; if a country (say, Canada) were to enact a law declaring all people born in the United States to be citizens of Canada and with certain obligations, then no one born in the United States would be a citizen under the Citizenship Clause! The idea that the actions of foreign countries, independent of the United States, can change the function of the Citizenship Clause in this way makes little sense, and yet this seems the logical conclusion of Alito's position.

On page 38, Alito discusses the "grotesque results" of the majority's interpretation. This is odd, given even he seems to admit early (pages 1-2) on that his own interpretation could cause major problems, and asks Congress to pass laws fixing the situation. In any event, something being bad policy does not mean it is not what the Constitution demands.

And that brings us to the end of Alito's dissent. Compared to Thomas's, it is the weaker. Thomas at least articulates a coherent theory, whereas one is left confused by Alito's as to what his idea even is, unless he actually does hold the position that a child of a US Citizen and Mexican citizen born in the United States is not a citizen of the United States under the Citizenship Clause. In fact, it seems to me that under his idea, should any country pass a law granting citizenship to all children born in the United States, it would mean none of them would gain citizenship under the Citizenship Clause, even if both of their parents are US citizens.

Conclusion

And thus we reach the end of this. As one can see, I don't think the dissents do a good job. Thomas's requires quite a bit of misrepresentation, with some cases of extreme misrepresentation, while Alito's just comes across as plain incoherent. The majority opinion got it right. I do not know if this will persuade anyone--heck, considering the small amount of traffic this blog gets (and how much of that small amount is probably just robots), I don't know how many people will even read this--but I think having this information out there is hopefully useful to someone. If nothing else, I now have gotten this off my chest. In the end, if even one person finds this useful, I could consider it worth it.