Thomas: Birthright decision ‘devalues’ American citizenship

Justice Clarence Thomas disagreed with the Supreme Court’s decision on Tuesday to strike down President Trump’s executive order restricting birthright citizenship, contending the decision “devalues” American citizenship.

“I am not sure that today’s opinion will stand the test of time,” Thomas, the longest-serving conservative currently on the bench, wrote in a 91-page dissent to the ruling upholding the 14th Amendment right. “The Citizenship Clause ‘added greatly to the dignity and glory of American citizenship.’ Today’s opinion devalues that citizenship.”

Thomas did not read his dissent aloud from the bench.

His argument focused heavily on race and the interpretation of the term “domicile,” which is not mentioned in the 14th Amendment’s citizenship clause but has been historically understood to mean a person’s primary and permanent legal home.

“The Citizenship Clause was consistently interpreted not to apply to the children of foreign temporary visitors, who were by definition not domiciled in the United States,” Thomas reasoned. “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.”

He argued that the majority got its history wrong when it concluded that the phrase “subject to the jurisdiction thereof” should be understood in the context of the “feudal” principle of allegiance in English common law, which was then codified as “not subject to any foreign power” in the Civil Rights Act.

He also contended the precedent established in the landmark 1989 Wong Kim Ark ruling should not extend to the children in the U.S. on foreign temporary visitors.

“The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens,” Thomas wrote. “In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”

He reasoned that because much of the application of Trump’s Day 1 executive order was “consistent with the original public meaning” of the clause in the 14th Amendment, it should have been upheld.