Justice Clarence Thomas, joined by Neil Gorsuch, argues in Trump v Barbara the Fourteenth Amendment grants citizenship not to everyone born on American soil, but to persons born here who are also domiciled here—that is, whose permanent legal home is the United States.
Thomas begins with Dred Scott v. Sandford. That decision denied citizenship to Black Americans by treating them as an inferior caste. The Civil Rights Act of 1866 and the Fourteenth Amendment’s Citizenship Clause overturned that result. In Thomas’s account, they did so because formerly enslaved people were Americans: they lived here permanently, owed allegiance to no foreign country, and were subject to the full authority of the United States. The Reconstruction Congress eliminated race as a barrier to citizenship; it did not, he says, establish citizenship for children whose parents were merely visiting or remained legally attached to another nation.
The organizing concept in Thomas’s dissent is domicile, meaning a person’s legal home and intended permanent residence. Nineteenth-century American law treated citizenship and domicile as closely related. Domicile determined national character, allegiance, taxation, the law governing personal affairs, military obligations, and the government entitled to protect a person abroad. Minor children ordinarily inherited their parents’ domicile. A temporary visitor therefore remained subject primarily to the visitor’s home country, even while required to obey American laws during the visit.
Thomas reads the Civil Rights Act and the Fourteenth Amendment together. The 1866 Act declared citizens those born in the United States and “not subject to any foreign power.” The Citizenship Clause soon afterward covered persons born here and “subject to the jurisdiction” of the United States. Thomas argues that the phrases conveyed the same requirement: full and complete jurisdiction, not merely the territorial authority to enforce criminal and civil laws. He relies on statements by Senators Lyman Trumbull and Jacob Howard and Representative John Bingham, who described citizenship as excluding temporary residents and persons owing allegiance elsewhere. The treatment of tribal Indians reinforces his reading: although born within American territory, members of sovereign tribes were initially excluded because the United States did not exercise complete jurisdiction over them.
Thomas also invokes early governmental practice. Congress reenacted the Civil Rights Act’s “not subject to any foreign power” language in 1870. Executive officials repeatedly denied citizenship to children born here while their families remained domiciled abroad. Early Supreme Court opinions, including the Slaughter-House Cases and Elk v. Wilkins, spoke of complete political jurisdiction and freedom from foreign allegiance. Legal scholars likewise distinguished permanently domiciled immigrants from transient visitors. Thomas considers this evidence far stronger than the majority’s historical account.
He rejects the majority’s reliance on three authorities. Calvin’s Case, a 1608 English decision, rested on perpetual feudal allegiance to the sovereign; Thomas argues that Americans rejected, rather than adopted, that conception. Lynch v. Clarke, an 1844 New York inheritance decision supporting broad territorial birthright citizenship, was an isolated lower-court ruling, rarely mentioned during Reconstruction and later undermined by New York precedent. United States v. Wong Kim Ark, he says, held only that a child born to parents permanently domiciled in the United States was a citizen. Because Wong’s parents were settled residents rather than temporary visitors, broader language in the opinion was dicta and does not decide the present question.
Thomas adds three procedural objections. The certified class includes unidentified persons extending indefinitely into the future, raising standing problems. Neither the Citizenship Clause nor the immigration statute expressly creates a cause of action, and the plaintiffs challenged no final agency action under the Administrative Procedure Act. Most importantly, the plaintiffs brought a facial challenge, which requires proving that the order has no lawful application. Yet Thomas believes it is constitutional as applied to children of lawful temporary visitors and at least some undocumented immigrants who are not domiciled here. He leaves open whether children of long-term undocumented residents may acquire American domicile, saying that issue should be resolved through individual, as-applied cases.
Finally, Thomas argues that the citizenship statute did not broaden the Constitution when Congress codified nationality law in 1940; it merely adopted the Citizenship Clause’s language. He closes on a historical note. The Fourteenth Amendment was designed to secure equal citizenship for freed Black Americans. By transforming it into a guarantee for every child of a temporary visitor, “birth tourist,” or undocumented immigrant, the majority, in his view, detaches citizenship from permanent membership, allegiance, and national belonging—and thereby diminishes the “dignity and glory” of American citizenship.