The Court Sided With the Soil

I read Trump v. Barbara so you don’t have to, and the short version is that the Court chose the soil over the citizen.

The holding is this. A child born on American soil to parents who are here illegally, or here for a few days on a tourist visa, is a citizen at the moment of birth. The whole case turns on five words, “subject to the jurisdiction thereof,” and the majority decides they mean almost nothing. If American law can reach you, if you could be pulled over or hauled into court while standing on our dirt, then you are subject to our jurisdiction and your baby is one of us. So a woman can fly in during her ninth month, deliver, and fly home, and she has made an American. Citizenship handed out like a party favor at the airport.

I think that is wrong, and I think Justice Thomas took it apart in dissent.

Look first at where the majority’s rule actually comes from, because the opinion would rather you didn’t. It comes from Calvin’s Case, an English decision from 1608. The idea there was that a person born on the king’s soil owed the king a natural, permanent allegiance, a bond he never chose and could never shed, born with the child and ended only in the grave. England had subjects, bound to a place and its master. It did not have citizens. That is the doctrine the majority dressed up as the birthright of a free people: the medieval rule that the land you are born on claims you for whoever owns the land.

Now remember what this country is. We are the people who, in 1776, told the sovereign of our birth that his claim on us was void, that a man is not the property of the ground he stands on or the crown that holds it. The very Congress that gave us the Fourteenth Amendment passed a law, the same year it was ratified, declaring every person’s right to shed an old allegiance and choose a new one. You cannot square a people who wrote down the right to walk away from the king of their birth with a rule that says the king of your birthplace owns your children.

So what did “subject to the jurisdiction” mean, if not “reachable by a cop”? The men who wrote it told us. Senator Trumbull, asked point blank, said it meant “not owing allegiance to anybody else. That is what it means.” Senator Howard, who introduced the clause, called it “full and complete jurisdiction,” the same “as applies to every citizen of the United States now.” They even used a different phrase, “within its jurisdiction,” a few words later in the same amendment, when they wanted to cover everyone physically present. They knew the difference, they chose the narrower words on purpose, and they said out loud that the narrower words left out the child of the man passing through.

And for decades everyone acted like it. The government denied citizenship to babies born here to visitors from Switzerland, Germany, Austria, and Ireland, under presidents of both parties. The majority’s answer is that all of this was a later nativist plot aimed at Chinese immigrants. Thomas points out the hole: the people actually turned away were European, and the Chinese the plotters supposedly feared were mostly settled here, so a real anti-Chinese scheme would have demanded a citizen-parents rule, not a home-here rule. The story does not survive its own facts.

Here is the part that matters most to me, and the part both sides get wrong. The rule Thomas defends is not blood and soil. It is the opposite. It is domicile, and domicile asks one question: is this your home, is your allegiance here and nowhere else, have you actually joined. It asks nothing about your ancestry. It is the melting pot written as law. Dred Scott lost because the Court used a rule of blood; his own lawyers argued that citizenship follows your home, and that rule would have made him a citizen. Domicile is the anti-caste principle. The majority thinks it is honoring the amendment that buried Dred Scott while it quietly trades that colorblind principle for an accident of geography.

Be honest about the limits, because the honest version is stronger than the loud one. Domicile means residence plus the intent to stay, so a family that has lived here quietly for fifteen years with no other home probably is domiciled here, and their kids probably are citizens under the exact rule Thomas is defending. What the rule cleanly excludes is the birth-tourism business and the genuine tourist, the people whose home is somewhere else and who arranged to be here just long enough to deliver. That is a narrower and fairer line than either the open-borders crowd or the blood-and-soil crowd wants to admit.

The majority quotes Frederick Douglass and thinks it is on his side. But Douglass asked to be a citizen “not as aliens nor as exiles,” but as an American whose home and allegiance were here. That is the whole argument in one line. Membership is a compact, not a coincidence. It is something you enter, not something that happens to you because of where you were standing when you were born.

The Court forgot that. Thomas didn’t.