“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.” ---Fourteenth Amendment, Section 1
On June 30, the Supreme Court released its decision on birthright citizenship, with Justice Roberts writing for the majority in upholding the interpretation that has been generally accepted for the past 160 years. In a 91-page opinion by Clarence Thomas, three justices dissented.
Commentary on both sides has been harsh, especially from the losing side. I have seen Roberts’ opinion described as “absurd,” and Thomas’s dissent called “brilliant” and a “tour de force.” I don’t think either opinion is especially insightful or wise, and I’ll tell you why.
First of all, the proper interpretation of the Fourteenth Amendment is not that complicated or open to varied meanings. If we are “originalists,” which is supposedly what most of the Court is, all we do is look to the plain meaning of the words when they were written. “Born or naturalized in the United States” is not at all fuzzy or ambiguous, and it means the same thing today as it did 160 years ago. “Subject to the jurisdiction thereof” is also as clear as an azure sky despite the extraordinary efforts to muddy its meaning.
We are talking about babies here, remember, because babies are the ones who get born. We are not talking about their parents or the parents’ DNA or their nationality or homeland. The ONLY question is whether the baby, the little guy or gal who got born here, is “subject to the jurisdiction” of the USA. And of course the answer is yes. He gets a birth certificate here instantly, and a social security number a few days later. From the moment of his first breath, he is a tax deduction for somebody on their 1040. If he is destitute, he is immediately eligible for welfare benefits here. In a few years, he will be claimed by authorities in the education bureaucracy.
In addition, there is no other jurisdiction with a claim on him. Even if his parents are Guatemalan citizens, Guatemala will not even know he exists. His parents may someday inform Guatemala they have a kid, and Guatemala may recognize the baby as one of theirs, but that may or may not ever happen. All we know at the moment of birth is that the baby is a “person born…in the United States and subject to the jurisdiction thereof.”
That should have been the Roberts opinion. He should have taken my last three paragraphs and called it a day. But Roberts blithers. He often blithers, and it gets him into trouble. Here, Roberts wanders off into an analogy about the English Common Law and what it meant to be a “subject” of the sovereign in 1608. He has gotten endless grief and mockery for this, and he deserves it because, well, being a subject of the king of England in 1608 has nothing whatever to do with being a citizen of the US under the Fourteenth Amendment.
Of course, Clarence Thomas does the same thing in his dissent. Most of his “authority” is from academic articles and remarks by Congressmen (rather than from case law), but one case he cites multiple times is The Pizarro, 15 U.S. 227 (1817) which involved, believe it or not, the interpretation of a 1795 treaty with Spain and whether the ship was actually “Spanish” when it was seized by privateers. It is certainly arguable that Thomas’s analogy is even less relevant than Roberts’ who-is-a-subject-of-the-king musings.
The most troubling part of Thomas’s dissent, however, comes just after his citation of The Pizarro when he completely mischaracterizes the holding of The Slaughter-House Cases, 83 U.S. 36, a very important and often-cited Supreme Court opinion from 1873.
First, Thomas writes, “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).” Thomas Dissent, p.4.
Interesting! The ellipsis by Thomas conceals a world of meaning. The actual language of the Slaughter-House opinion is this: “The phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” Thus does Justice Thomas subtly try to score points for his side with a proposition that no one really disputes: children of foreign ambassadors or consuls do not become US citizens just by being born here.
Worse than this, however, is Thomas’s omission of the next paragraphs from the Slaughter-House Cases, which nail down the OPPOSITE of what Justice Thomas claims the case holds:
“The next observation is more important in view of the arguments of counsel in the present case. It is that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.
Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. (Emphasis added.)
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.”
Slaughter-House Cases, 83 Wall. 73-4.
There is one rather obvious reason to exclude these paragraphs---because they demolish Thomas’s argument that a person born in the USA must also be “domiciled” here to be a citizen. According to the Slaughter-House Cases, the legal meaning of the 14th Amendment could not be more clear: if you are born in the United States, you are a citizen. It doesn’t matter where your domicile is.
This error is more than a little disturbing. Claiming a case says the opposite of what it actually says is not a little thing. This is the sort of mistake one might expect from an AI-addled first-year law student, but never from a man regarded as one of America’s greatest legal authorities. I can only hope this misstatement is brought to Justice Thomas’s attention, and that he takes whatever steps he can to rectify the situation.
Following the six pages of introduction, which concludes with the mistakes noted above, Justice Thomas presents a 45-page argument that citizenship under the 14th Amendment REQUIRES that the person be domiciled in the United States. I think the fact that this screed rolls on for 45 pages is itself evidence of its fundamental weakness, but there is a much bigger problem. Not only do the Slaughter-House Cases explicitly hold that there is no requirement of domicile for citizenship to exist, but the 14th Amendment itself includes no hint that domicile has any relevance at all.
The word “domicile” has been around for hundreds of years. It appears in statutes and legal writings that long pre-date the 14th Amendment. Every person in Congress and in state legislatures who debated passage of the 14th Amendment knew the meaning of the word. I don’t know whether there was any debate over using the word in the text of the Amendment, but there could have been. In any event, the people who wrote the 14th Amendment could have used the word “domicile” and, for whatever reason, they chose not to. Instead of “domiciled” in the United States, they said “subject to the jurisdiction” of the United States, and that makes all the difference. “Subject to the jurisdiction” is a very different standard from “domiciled.” Justice Thomas is demanding that we import a different standard into the 14th Amendment than the standard that is there.
Being “subject to the jurisdiction” of a place is very easy. Almost everyone present in a place for any period is subject to the jurisdiction thereof. (Exception: diplomatic immunity.) Being “domiciled” there is much more difficult.
To be subject to the jurisdiction of a place, you need merely pass through it. If you run through a stop sign while driving through Florida, you may have to pay Florida a fine. If you spend a night in Nevada and impregnate a woman there, you may be subject to Nevada law for purposes of child support. You may even be subject to the jurisdiction if you never physically enter a place, but enter into a contractual relationship with someone there. As the Slaughter-House Cases informs us, “subject to the jurisdiction” excludes almost nobody. Simply being born here is usually enough to make you a citizen. “[i]t is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.“ Slaughter-House, 83 U.S. at 74.
Thomas’s proposed “domicile” standard would exclude a large percentage of Americans who have been treated as citizens since birth. Being “domiciled” somewhere is not easy. “Domiciled” means you live there, for at least a substantial portion of your time. You pay taxes there. If you want to drive, you need a license from the government there. You may be called for jury duty. If there is a military draft, you may have to fight for the place. Justice Thomas would change the common understanding of “subject to the jurisdiction thereof” and suddenly demand an enormous commitment of time and money and effort from those we have regarded as citizens for the past 160 years. And all because he feels the word “domicile” should appear somewhere in the 14th Amendment.
I think of myself as Clarence Thomas’s biggest fan. Over the years, I’ve probably read half of his opinions. His dissent in Gruter v. Bollinger, the affirmative action case, brought tears to my eyes. I have told friends many times that 250 years from now, his opinions are the only ones that will still be read.
This dissent, however (and I hate to say this), looks suspiciously like a results-oriented piece where the justice decides in advance what he wants the opinion to conclude and then drafts an argument to reach that conclusion. I have never before seen a Clarence Thomas opinion that made me suspect such a thing. The leftists on the Court do this all the time, of course. Roberts also does it often, and he may have done it in this case.
Thomas has certain prejudices, as all of us do, but they are not political in nature, and I’ve never read an opinion of his where I thought his political views tilted his legal judgment. It would be a shame if, as we approach the end of his brilliant legal career, that began to happen.
Finally, let’s go back to the beginning. How did we get here?
President Trump’s Executive Order, signed on January 20, 2025, put forth the most extreme position he could possibly have adopted on birthright citizenship. For 160 years, Congress, courts, and presidents had understood and accepted that Section 1 of the 14th Amendment meant that babies born in this country (with a few exceptions), were citizens. Trump attempted to change that history by edict.
There is nothing in our laws that permits a president to change unilaterally the meaning of a Constitutional provision. Section 5 of the 14th Amendment states that “The Congress shall have the power to enforce by appropriate legislation, the provisions of this article.” But Trump wasn’t interested in that. He decided he could personally reverse generations of legal meaning because he didn’t like the accepted interpretation. And he probably believed that once his views became law, hundreds of thousands of people who thought they were American citizens would have to go “home” to places they had never even visited, like Mexico, Pakistan, and Syria.
If the concern is “birth tourism” or anchor babies, there is still nothing that prevents Congress from enacting “appropriate legislation” to address those issues and further the aims of the 14thAmendment. It is even possible that Trump alone could nibble around the edges of current law by Executive Order. What he CANNOT do is what he did.
This Supreme Court decision is no surprise. What is surprising is that the decision was not unanimous.
Copyright2026MichaelKubacki
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