The majority opinion just issued by the Supreme Court on birthright citizenship in favor of the status quo granting citizenship simply because one was born here is another case where the “Living Constitution” left ruled the day. Justice Clarence Thomas, an “Old Constitutionalist” whose ancestors were slaves, issued a scathing dissent since the historical evidence was clear that the 14th Amendment in 1868 applied only to freed slaves.
It should be noted that for the last 30 years the Court’s conservatives, including Justice Thomas and Antonin Scalia, were often in frustrated dissent— but those dissents have often proved to be the foundation for the current Court’s majority opinions. The latest example came recently in the voting-rights case, Louisiana v. Callais, where the majority declared racial gerrymanders to be illegal in most cases and cited Justice Thomas’ comments in a 1994 case that dissected the Court’s Thornburg ruling. Thomas dissents matter.
Thomas starts off by explaining the Founders desire for a new system based on individual property rights that God had given us, and our choice to become loyal citizens governing themselves (as opposed to being subjects of a King who owned all the land under the Old World “feudalism structure”). Territorial birth is a feudal concept and has nothing to do with citizenship election.
Thomas then dives into the original intent of the 14th Amendment for the new black freemen becoming citizens of the United States after the Civil War which requires birth plus domicile, which means allegiance: “Blacks were entitled to citizenship because they were Americans. 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, to ensure that they would never be treated as second class under the law.”
Thomas then contrasts the legal treatment of tribal Indians who were never considered citizens, despite being born here, because of their primary loyalties to their tribal governments. “If the Court were right that the Citizenship Clause applies to anyone who is born here and is subject to our laws, then the 14th Amendment would have conferred citizenship on all tribal Indians—but the exception for “tribal Indians not taxed” in Section 2 was well established at the time and remained until Congress eliminated it by statute in 1924.”
Thomas concludes: “The Court’s interpretation of the 14th Amendment is not only contrary to its original meaning, it produces grotesque results—that will seriously affect the country’s future.”
Steve Gardes is a Certified Public Accountant (CPA) and Certified Valuation Analyst (CVA) with over 40 years of public accounting experience.
