Justice Ketanji Brown Jackson has accused Justice Clarence Thomas of echoing a core tenet of the Dred Scott decision by opposing the Supreme Court's decision to uphold birthright citizenship.
In her concurrence with the majority's opinion in Trump v. Barbara, Jackson argued that the 14th Amendment's citizenship clause was historically intended to apply to all people born in the United States, including children of illegal immigrants.
Jackson wrote that the 14th Amendment was intended to provide a path forward that would prevent a return to slavery and race-based subordination, and that it was not limited to freed slaves.
By invoking the Dred Scott decision, Jackson was referencing an 1857 Supreme Court decision that held that people of African descent were not included under the word "citizens" in the Constitution.
However, Thomas disagreed with Jackson's characterization of the historical context surrounding the 14th Amendment, arguing that it was ratified specifically to provide slaves freed after the Civil War with citizenship.
Thomas went on to describe the distinction he believes is drawn between Black Americans and foreigners residing in the country, arguing that citizenship under the 14th Amendment requires birth in the United States as well as domicile, a legal concept he defines as both one's physical home and one's permanent allegiance to the country.
Jackson fired back at this line of reasoning, calling it "myopic" and noting that Thomas's interpretation of the 14th Amendment bears little relationship to the history of its ratification.
Jackson argued that the Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery, and that Thomas's interpretation elides the entire point of the Second Founding.
