Three justices just looked the Constitution in the face and said no. Thomas. Alito. Gorsuch. They didn’t interpret the text. They contradicted it. The 14th Amendment says “all persons born.” Three justices said “not those persons.” That’s not jurisprudence. That’s insurrection in robes.
The 14th Amendment exists because this country used to deny that Black people were citizens. Dred Scott said Black people couldn’t be citizens. The Civil War killed 750,000 people to settle that question. The amendment was the fix. The blood guarantee. And now Clarence Thomas, a Black man sitting in Thurgood Marshall’s seat, argues that the amendment was only for freed slaves. He’s narrowing the blood guarantee into a historical footnote while ignoring that the text says “all persons.” The framers specifically rejected limiting it to freed slaves. Roberts’ own opinion points this out. Jackson’s concurrence eviscerates Thomas on this point, arguing he fundamentally misunderstands what the Reconstruction Amendments were trying to accomplish. Thomas isn’t doing originalism. He’s doing editorialism. He’s editing the Constitution to say what he wishes it said.
The dissenters argue that undocumented people aren’t “subject to the jurisdiction” of the United States. But if that’s true, the government can’t arrest them. Can’t try them. Can’t deport them. They are subject to U.S. jurisdiction. That’s the entire legal basis for removing them. The argument eats itself. If you’re not subject to U.S. jurisdiction, the U.S. has no authority over you. But the U.S. exercises authority over undocumented people every single day. The word means what the dissenters need it to mean, not what it says.
The opinions span 194 pages. Thomas wrote 91 pages of dissent. His longest ever. That’s not interpretation. That’s a man trying to bury a three-word truth under a mountain of words because the truth doesn’t serve him. “All persons born.” Three words. Ninety-one pages to say “not those persons.” If the text was on your side, you wouldn’t need a novella to explain why it doesn’t mean what it says.
The same people who scream “textualism” and “originalism” are the ones rewriting the text. “All persons born” is three words. A child can understand it. But Thomas reads “all persons” and hears “only persons whose parents I deem acceptable.” Alito reads “all persons” and hears “only those children who, at birth, owe allegiance solely to this country.” Gorsuch reads “all persons” and signs his name to Thomas’ 91-page dissent saying the same thing. That’s not reading the law. That’s writing it. The “rule of law” crowd is the mob with the matches. The dissenting opinions appeared “more interested in exploring the intent of the people who adopted the 14th Amendment” rather than the text and history.
Thomas said the majority “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.” The projection is the confession. He’s the one repurposing the amendment. He’s narrowing it to serve a political project of exclusion. The “sad history” isn’t the amendment being applied broadly. The sad history is that 158 years later, a Black man sitting in Thurgood Marshall’s seat is still arguing about who counts as a person.
Roberts wrote that the Framers “extended that promise to ‘every free-born person in this land.'” Jackson’s concurrence notes that “where the dissents see feudalism, the Framers of the Fourteenth Amendment saw emancipation.” The majority is handing us the weapon. Use it. The Framers explicitly rejected the narrow reading the dissenters are pushing. The historical record the dissenters claim to revere actually destroys their argument.
Kavanaugh concurred in part and dissented in part. He said the executive order violated federal statute, but he disagreed with the majority’s constitutional holding. He explicitly said Congress could amend the statute or enact new legislation establishing exceptions to birthright citizenship for children born to parents who don’t have permanent legal status. He’s saying the president can’t erase citizenship by himself, but Congress can. That’s not defending the Constitution. That’s defending the process of dismantling it. He didn’t join the dissenters, but he gave them the roadmap. He’s the guard who doesn’t open the gate himself but tells the invaders which latch is broken.
Alito acknowledged that longtime residents have a “strong moral claim” to remain in the United States, but said sorting out their legal status was up to Congress. He sees the humanity. He admits it exists. Then he says “not my problem.” That’s not jurisprudence. That’s watching someone drown and saying “someone should throw a rope” while you hold one in your hands.
If birthright citizenship is eliminated, what happens to these children? They’re not citizens of the U.S. They’re not citizens of their parents’ country in many cases. The dissenters are arguing for the creation of a permanent underclass of stateless people born on American soil who belong nowhere. That’s not immigration policy. That’s a human rights violation under international law. That’s the manufacture of nobodies.
A baby in a Houston hospital. She’s two days old. Her mother crossed a border to give her a better life, and now that baby is lying in a bassinet in a country that three justices say she doesn’t belong to. She’ll grow up American. She’ll speak English. She’ll know no other soil. But Thomas and Alito and Gorsuch look at that baby and see an intruder. They see a legal problem. They see a line item in a 91-page dissent about “allegiance” and “domicile” and “jurisdiction.” They don’t see a child. They never see the child. The legal theory has a body count. It just hasn’t been counted yet.
The text is clear. “All persons born.” Settled law for over a century. Wong Kim Ark. 1898. The Supreme Court already decided this. The word “domicile” the dissenters rely on isn’t in the 14th Amendment. It’s a word they invented to exclude the people they want to exclude. And the “birth tourism” panic doesn’t change the Constitution. You don’t get to ignore the document because you don’t like what it requires. That’s the entire point of having one. The framers specifically rejected limiting the amendment to freed slaves. Roberts documents this. Jackson eviscerates Thomas on this point. The historical record the dissenters claim to revere destroys their argument. The only people who disagree are the ones who need the text to be narrow so they can exclude the people they’ve already decided don’t count.
Should they be removed? Impeachment exists for a reason. Article III says judges hold office “during good behaviour.”
Refusing to uphold the explicit text of the Constitution isn’t good behavior.
It’s a violation of their oath.
They swore to “support and defend the Constitution.” Three of them just attacked it. If a justice won’t uphold the Constitution, what’s their purpose? They’re legislators in robes. Kings in black. And kings who ignore the law get removed. That’s the whole point of the American project. Or it was.
The 14th Amendment was a promise. If you’re born here, you belong here. Three justices just said the promise is conditional. And conditional promises aren’t promises. They’re threats. The amendment was written in blood. These three justices just tried to erase it in ink. And the only question left is whether we let them.
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