US Supreme Court Justice Ketanji Brown Jackson accused Justice Clarence Thomas, who dissented from the court's ruling upholding birthright citizenship, of repeating one of the core principles of the racist 1857 Dred Scott decision.
In her concurring opinion in the Trump v. Barbara case, Jackson argued that the citizenship clause of the 14th Amendment was historically intended to cover everyone born in the US, including children of undocumented immigrants. Thomas, however, claimed that the amendment was only ratified to grant citizenship to freed slaves after the Civil War.
Jackson said, 'Freed blacks fought for the common humanity of all people. The Great Emancipator foresaw that the only way to prevent any return to slavery and race-based oppression was to unite everyone's fate.' Jackson stated that the government and Thomas propose a return to the essence of the Dred Scott decision, saying, 'The ultimate irony is that despite all this talk about the odious Dred Scott decision, the government and Thomas propose a return to that decision's core principle. Their conclusion is this: For some people, being born on American soil is not enough to confer citizenship.'
Thomas, however, said Jackson's universalist characterization of the 14th Amendment's historical context was unfounded. Noting that after the Civil War, the Reconstruction Congress first passed the Civil Rights Act of 1866 and then the Citizenship Clause of the 14th Amendment to overturn Dred Scott, Thomas said, 'Both the Civil Rights Act and the Citizenship Clause guaranteed citizenship to persons born and residing in the US regardless of their race. But neither guaranteed citizenship to persons not residing in the US.'
Thomas argued there was a distinction between Black Americans and foreigners in the country. 'Blacks were entitled to citizenship because they were Americans. They had no other homeland, they swore no allegiance to any foreign power, and they were subject to no other authority. The same cannot be said for the children of temporary foreign visitors,' Thomas said, adding that temporary visitors are loyal to their own countries and lack similar ties to the US, and would not be called up in wartime.
Thomas argued that citizenship under the 14th Amendment requires, in addition to being born in the US, the condition of 'residence,' meaning permanent allegiance to the country. He contended that the children of temporary foreign visitors, while subject to US laws, remain loyal to another sovereign power and therefore are not fully subject to US jurisdiction in the constitutional sense.
Jackson described Thomas's reasoning as 'narrow-minded.' 'Despite his long-standing advocacy for a 'color-blind' Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause is a race-conscious remedial measure only concerning 'freed slaves like Dred Scott,'' Jackson said, noting that Thomas's narrow interpretation of the 14th Amendment has little to do with its ratification history. 'The Reconstruction Amendments served as an anti-caste, anti-oppression reset for the nation, not a simple regional remedy for the black stain of slavery,' she said.
