Will Birthright Decision Pass the Test of Time?

We think of The New York Sun as an includer rather than excluder. So our instinct is to share the view of birthright citizenship handed down this morning from the pen of, no less, the Chief Justice of the United States. Yet we also have a streak that nags at us to avoid, when possible, siding with the majority. So in respect of Trump v. Barbara, we quickly turned to the dissent by Justice Clarence Thomas to see what the dissenters have to say.“I am not sure that today’s opinion will stand the test of time,” is the way that Justice Clarence Thomas concludes his dissent. The thought was on the tip of our own quill. Justice Thomas, after all, is the longest serving sage on the court. The Citizenship Clause, he reckons, “added greatly to the dignity and glory of American citizenship,” while today’s opinion by the majority “devalues that citizenship.”Chief Justice Roberts’s majority opinion invalidates President Trump’s executive order ending the longtime policy of granting citizenship to nearly any child born on American soil. The majority included the court’s liberal justices plus Justice Amy Coney Barrett. Justice Brett Kavanaugh agreed only with the majority’s judgment, not with its reasoning, arguing that the dispute could have been decided based on federal law, not the 14th Amendment.A Reconstruction-era measure, the 14th Amendment is at the heart of Chief Justice Roberts’s majority opinion. “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States,” the amendment states. Mr. Trump and his solicitor general, John Sauer, argued that illegal migrants or tourists are not “subject to the jurisdiction” of America, and so their children are not entitled to citizenship.In Chief Justice Roberts’s telling, the common-law conception of citizenship is an inheritance from Britain. Birthright citizenship “crossed the Atlantic with the colonists,” he writes. Early residents of the Republic, he adds, no matter their nation of origin, “could be assured that their children would be American citizens by birth alone.” This had to be clarified after the Civil War, when lawmakers sought to affirm the citizenship of former slaves and their children.Enter the 14th Amendment which, the chief justice says, “neatly captures the common law rule” of Birthright Citizenship, “with its broad reach and narrow exceptions.” A high court precedent from 1898, United States v. Wong Kim Ark, “confirms this rule,” he adds. Joined by Justice Neil Gorsuch, Justice Thomas in his dissent argues that the 14th Amendment’s terms “guaranteed citizenship to persons born and domiciled in the United States.”This guarantee, Justice Thomas asserts, encompassed those born here “regardless of their race.” Yet the amendment did not grant “citizenship to persons who were not domiciled in the United States,” he adds. “Blacks were entitled to citizenship because they were Americans,” with “no other homeland,” Justice Thomas says. “The same could not be said for the children of foreign temporary visitors,” he goes on to say. Such visitors, Justice Thomas writes, “were attached to their home country, lacked similar bonds to this country, and would not be called upon in time of war.” The majority ruling in Barbara, he says, “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.”Justice Samuel Alito argues that the majority fails to heed abuses of the 14th Amendment’s guarantee, including “birth tourism.” The majority opinion affirms Senator Lyman Trumbull’s claim that the 14th Amendment’s citizenship clause was meant to cover “every free-born person in this land.” As Chief Justice Roberts puts it, “we keep that promise today.” As for tomorrow, though, and beyond, the dissenters’ doubts in Barbara could well prove prescient.

Will Birthright Decision Pass the Test of Time?

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