The Supreme Court’s recent decision affirming birthright citizenship (Trump vs Barbara) surprised many Americans because of the radical historical position advanced by Justice Clarence Thomas. In his opinion, Thomas rejected the overwhelming historical understanding that the Fourteenth Amendment constitutionalized the long-established Anglo-American principle of jus soli — citizenship by birth on the nation’s soil.
The principle of jus soli did not originate with the Fourteenth Amendment. It was deeply rooted in English common law, inherited by the American colonies, and broadly recognized throughout the United States long before the 14 Amendment was drafted. In fact, the principle of citizenship by birthplace was so universally understood that the writers of the Constitution didn’t even see a need to spell it out in the original document. Following the constitutional catastrophe of Dred Scott v. Sandford (1857), the Reconstruction Congress adopted the Fourteenth Amendment to restore and permanently protect the traditional rule of birthright citizenship in the text of the US Constitution. The recognized exceptions remained narrow: children of foreign diplomats, children born on foreign public vessels, children of enemy occupying forces, and, at that time, children born to members of sovereign Indian tribes. Everyone else born on American soil was an American.
Justice Ketanji Brown Jackson correctly reminded the Court that the Citizenship Clause was not enacted solely for formerly enslaved Black Americans. While overturning the consequences of Dred Scott was unquestionably one of its principal purposes, Congress deliberately chose broad constitutional language that protected birthright citizenship generally rather than creating a limited guarantee applicable only to one group. Indeed, the 1866 debates demonstrate that lawmakers explicitly anticipated objections regarding the children of foreigners — including those here on a merely temporary visit — yet deliberately chose a universal guarantee that left no loophole for parental legal status.
Justice Thomas, however, advances a fundamentally different historical narrative. He fiercely argues that the Citizenship Clause should largely be understood as a measure intended only for formerly enslaved people. To defend this flawed and radical view, Thomas intentionally rejects over a century of binding legal precedent, most notably the Court’s 1898 decision in United States v. Wong Kim Ark, and gives little weight to the broader common-law tradition. By attempting to rewrite history, he completely glosses over the fact that the Court already settled the question of temporary visitors long ago. Rather than engaging with the broad reality of our common-law tradition, Thomas deliberately locks his interpretation into a narrow, manufactured window of time — stubbornly pretending the Fourteenth Amendment was merely a temporary, race-conscious remedy rather than the permanent, universal guarantee it was written to be. Many judges and legal experts disagreed with him, arguing that such a deeply flawed interpretation disregards both the common-law tradition and the historical record of the Reconstruction debates. By doing so, his dissent attempts to severely constrict a foundational American right that the Framers intentionally made absolute and all-inclusive.
What concerns me even more is the constitutional logic underlying the dissenting Justices’ position. In my reading, Justices Thomas, Samuel Alito, and Neil Gorsuch do not merely disagree about the meaning of the Fourteenth Amendment. They reject the traditional American understanding of citizenship that long predates the Amendment itself — and indeed predates the US Constitution. Their un-American approach would functionally replace the historic American rule of jus soli with a foreign hereditary principle resembling jus sanguinis, making a child’s citizenship depend entirely on the legal status of their parents.
That is precisely why I see an important historical parallel with Dred Scott. Before 1857, American law generally followed the English common-law tradition of jus soli. Dred Scott represented a radical break from that tradition by denying citizenship on the basis of ancestry and inherited status. The decision deliberately engineered a hereditary principle in order to preserve a cruel caste system.
Today, the dissenting Justices attempted a similar constitutional re-engineering. The category has changed — from enslaved parents to undocumented immigrant parents — but the legal method is strikingly similar. Rather than recognizing citizenship according to birthplace, they would make a child’s constitutional status depend on the status of their parents. This is a direct attempt to revive the same hereditary logic that Dred Scott shamefully employed, even though that vicious logic was repudiated by the Fourteenth Amendment and had never been part of the broader American constitutional tradition before 1857.
To be clear: today’s immigration system is not slavery. But both approaches rely on the exact same premise: that a child’s legal rights should depend on who their parents are, rather than where they were born. It was precisely that hereditary principle that the Fourteenth Amendment sought to reject by restoring the traditional American rule of birthright citizenship.
Fortunately, that effort did not prevail. The Court reaffirmed the constitutional principle of birthright citizenship. Yet I believe the dissent should serve as a warning. It does not simply propose a different reading of the Fourteenth Amendment; it challenges a legal tradition that stretches from English common law, through colonial America, through the Founding, and into Reconstruction.
For me, the historical irony is profound. In 1857, Chief Justice Roger Taney used twisted legal reasoning to deny citizenship to the descendants of enslaved people. Today, Justice Thomas embraces a worldview that would strip citizenship from children because of their parents’ immigration status.
The historical contexts are different, but the irony is inescapable. A Supreme Court Justice who has personally benefited from the constitutional transformation of the Reconstruction Amendments is now advocating an interpretation that would dismantle their most enduring guarantee: Birthright Citizenship!



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