Justice Clarence Thomas used a lengthy dissent this week to lay out his constitutional view of birthright citizenship, arguing that the Fourteenth Amendment was never intended to automatically confer citizenship on every child born within the United States regardless of the legal status of the parents.
Although the Supreme Court’s decision has reignited debate over the issue, the Court did not decide whether President Donald Trump’s executive order limiting birthright citizenship is constitutional. Instead, the justices addressed the scope of nationwide injunctions issued by lower federal courts, allowing litigation over the executive order to continue.
Even so, Thomas devoted much of his opinion to explaining why he believes the prevailing interpretation of the Fourteenth Amendment is historically and legally flawed.
The Citizenship Clause of the Fourteenth Amendment provides that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Thomas argued that the clause must be understood in the historical context in which it was adopted following the Civil War.
He noted that both the Civil Rights Act of 1866 and the Fourteenth Amendment were enacted in response to the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford, which held that Black Americans could not be citizens of the United States.
“Both the Civil Rights Act [of 1866] and the Citizenship Clause guaranteed citizenship to persons born and domiciled in the United States regardless of their race,” Thomas wrote. “Neither guaranteed citizenship to persons who were not domiciled in the United States.”
He continued by arguing that formerly enslaved Americans qualified for citizenship because they had no other national allegiance.
“Blacks were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority,” Thomas wrote.
Thomas further contended that modern interpretations of the Citizenship Clause have expanded its reach beyond what the Reconstruction Congress intended.
He criticized what he described as the Court’s broader approach to constitutional interpretation, writing that it has “repurposed the Fourteenth Amendment to protect its own set of preferred rights that the Reconstruction Congress never contemplated and that cannot find support in its text.”
BREAKING: Justice Clarence Thomas pens a scathing dissent after the Supreme Court upheld birthright citizenship.
Thomas accuses the majority of “repurposing” the 14th Amendment “to protect its own set of preferred rights that the Reconstruction Congress never contemplated and… pic.twitter.com/uMEI9C1ct0
— Fox News (@FoxNews) June 30, 2026
Thomas argued that extending automatic citizenship to the children of individuals who enter the country illegally or temporarily is inconsistent with the original meaning of the amendment.
Justice Samuel Alito, writing separately, expressed a similar view of the Citizenship Clause.
“In sum, the Fourteenth Amendment confers citizenship on a person who is born in this country or naturalized only if that person is also ‘not subject to any foreign power,'” Alito wrote.
He contrasted that interpretation with what he described as the prevailing understanding of the amendment, under which “subject to the jurisdiction thereof” is generally interpreted to mean subject to U.S. law while present within the country’s borders.
Alito argued that such an interpretation creates incentives for unlawful immigration and birth tourism.
“The Court’s interpretation preserves a powerful incentive to enter or remain in this country illegally,” Alito wrote, adding that the United States is unusual among developed nations in maintaining broad birthright citizenship.
He concluded by warning that the issue could have significant long-term consequences.
“If the Fourteenth Amendment required these results, the country would have to live with them or amend the Constitution,” Alito wrote. “But the Fourteenth Amendment does not include the rule the Court now imposes on the country. In my judgment, the Court has made a mistake that will seriously affect the country’s future.”
