Conventional political philosophy has a blindspot over what turns out to be a crucial concept: the precise nature of the legal relationship between the human person and the regime under which he lives. In the US, we call this citizenship but how precisely is that different from the old-world notion of being a subject to a sovereign?
Confusion over this issue led the majority in the Supreme Court decision in Trump vs. Barbara to overrule an executive order that challenged automatic birthright citizenship. Only a few years back, anyone who would have challenged this idea would have been considered some kind of civic heretic, despite how rare this legal right is in the world.
Justice Clarence Thomas’s dissenting opinion was more than a passing disagreement. He penned a treatise of monumental importance to our time. He has completely reframed the distinctly American idea of citizenship as a two-way agreement between the person and the political community. It is not conferred by birth alone but also requires domicile, which means allegiance and the forsaking of other political loyalties.
Thomas’s mighty dissent, extracted in full at this link, is really for the ages and teaches this generation something substantial about our history. The purpose of the 14th Amendment was to admit blacks as full members of the polity. “Blacks were entitled to citizenship because they were Americans,” Thomas explains.
“They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority. They ‘fought and bled in the same battles,’ ‘gained and gloried in the same victories,’ and were ‘liable to be called upon to defend [America] in time of war’ alongside every other citizen. The Citizenship Clause thus guaranteed them the ‘dignity and glory of American citizenship,” so as to ensure that they would never be treated as second class under the law.”
They were not considered citizens simply because they were born here. This distinction has more significance than first appears. Thomas then explains the difference between the feudal concept of subjection vs. the free society’s understanding of citizenship. There is mighty meaning here, one that is central to the uniquely American understanding of the relationship between the people and the government – a topic that reaches to the core of who we are and what the Founders were attempting to do.
The majority in this case plainly reinvented a feudal concept that the Founders pledged their fortunes, lives, and sacred honor to overthrow. Did they know or understand what they were doing? Not likely.
The emergence of birthright citizenship turns the entire history of its head and introduces a notion concerning individuals and the state that is contrary to the entire American idea. For the majority of the court to do this – probably without understanding the implications – on the 250th anniversary of the Founding only adds to the insult.
He concludes: “The Court’s interpretation is not only contrary to the original meaning of the Fourteenth Amendment, it produces grotesque results. While foreigners who wish to immigrate lawfully must sometimes wait for many years, a child born here to a birth tourist is automatically a citizen.” He warns “the Court has made a mistake that will seriously affect the country’s future.”
Thomas’s full opinion is extracted here. Please circulate.
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