Harry Litman - The Dissents in the Birthright Citizenship Case Were Even Crazier Than You Thought
While the media’s primary reaction to the Supreme Court’s opinion in the birthright citizenship case was to tout the Court’s rebuff of Trump, many commentators, myself included, perceived a different headline. The real, gobsmacking detail was not the Court’s holding but the fact that 4 Justices—Thomas, Gorsuch, Alito, and Kavanaugh—were prepared to uphold a radically counter-textual reading of the plain text of the 14th Amendment to exclude from citizenship children born here to parents who were in the country illegally or only temporarily.
Justice Thomas’s principal dissent in Trump v. Barbara—joined by Justice Gorsuch—rests on a discredited method: original-intent originalism, the practice of asking what a text’s drafters subjectively meant to accomplish rather than what the words they wrote actually say. Justice Kavanaugh’s separate opinion raises a different, and in some ways more troubling, set of problems of its own.
Thomas’s dissent is far more tendentious and unorthodox than just the offensive bottom line. Thomas didn’t simply reach a result aligned with the administration’s wishes; he got there by abandoning the method of interpreting the Constitution that mainstream judges and scholars, conservative and liberal alike, have firmly adopted.
The first sentence of the 14th Amendment prescribes a clean two-part test: anyone 1) “born... in the United States” and 2) “subject to the jurisdiction thereof” is a citizen. Period, full stop.
https://harrylitman.substack.com/p/the-dissents-in-the-birthright-citizenship
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