JUSTICES ROBERTS AND JACKSON ARRIVE AT THE SAME CONCLUSION BY DIFFERENT MEANS: Genealogy, Formal Colorblindness, and the Undisclosed Peril of Trump v. Barbara
By H.E. Professor Gilbert Morris
Nassau, N.P., The Bahamas
I. Axiom
A constitutional clause that fixes the terms of belonging is never merely a rule of classification. It is a settlement, arrived at after a war, that carries within its wording the specific historical injury it was written to foreclose. To read such a clause is therefore to read a genealogy, and any interpretive method that abstracts the clause from that genealogy, however rigorous its formal apparatus, has already altered what it purports only to describe.
II. Definition
Trump v. Barbara presents three distinct accounts of the Citizenship Clause of the Fourteenth Amendment. The majority, in an opinion by the Chief Justice, holds that the common law rule of jus soli, birth within the sovereign’s territory and power, was carried into the Amendment nearly unaltered, its only long-settled exceptions being the children of foreign ministers and of tribes possessing their own dominion. Justice Thomas, dissenting, proposes instead that the phrase “subject to the jurisdiction thereof” imports a requirement of domicile, understood in its technical sense as the union of physical residence and the settled intention to remain. Justice Jackson, concurring, accepts the majority’s jus soli holding but writes separately to insist that the Amendment’s deeper purpose was not a narrow remedy addressed only to persons resembling the freed slaves of 1868, but an antisubordination reordering of the Republic’s whole conception of belonging.
These three accounts do not simply disagree about a rule. They disagree about what kind of object the Fourteenth Amendment is: a codification of a settled common-law category, a technical term of art borrowed from the conflict of laws, or a historical event whose meaning exceeds any of the formulas used to state it.
III. Proposition
My colleague - the resistance historian - Ted Stoermer proposes that Justice Roberts, unlike Justice Jackson, ignores the genealogy of Black citizenship, and that his opinion therefore eviscerates that citizenship in a manner ominously continuous with his prior narrowing of the Voting Rights Act. Examination of the actual text does not sustain this proposition in the form stated, and yet his observation foreshadows a more ominous tendency in Roberts’ rulings.
The Chief Justice's opinion devotes several pages, not as ornament but as the ground of its holding, to the transatlantic passage of jus soli, to the Southern states' wartime abandonment of the common-law rule with respect to Black Americans, and to Dred Scott v. Sandford as the doctrine's most odious repudiation.
The opinion states plainly that the common law made no distinction of race, that the slave states departed from that law precisely in order to deny citizenship to Black Americans on grounds of caste, and that Dred Scott imposed the Southern view upon the whole nation by substituting blood for soil as the criterion of belonging. Wong Kim Ark, the majority holds, confirmed rather than qualified this reading three decades after ratification. The domicile theory that the passage attributes to the Court's overall posture is in fact the position of the dissent, and the majority rejects it on both textual and historical grounds.
What is accurate, and what survives the correction, is a subtler and in some ways more troubling observation: the majority secures the correct result through a formal, jurisdictional register, that is, through the vocabulary of sovereignty, territory, and legal power inherited from Schooner Exchange, rather than through the substantive register of racial repair, testimony, and organized Black political agency that Justice Jackson supplies from the historiography of Martha Jones and Eric Foner.
The majority's authority for the jurisdictional register runs from Chief Justice Marshall's opinion in Schooner Exchange through Chancellor Kent's treatment of Indian tribes as dependent nations retaining their own dominion to the post-ratification, domicile-inflected gloss that the State Department and certain treatise writers such as Francis Wharton later attempted to append to the Amendment. Justice Jackson's authority, by contrast, runs through the freedmen's own churches, schools, and mutual-aid societies, through the historiography of birthright citizenship claims asserted by Black Americans well before the Fourteenth Amendment existed, and through Foner's account of a Reconstruction Congress that used language transcending race and region.
The difference between these two registers is not a difference in conclusion, since both Justices join the same judgment. It is a difference in what each register can subsequently be made to justify, and it is here, rather than in any sentence eviscerating Black citizenship, that the passage's intuition of an ominous continuity finds its proper object.
IV. Proof
Consider first the internal coherence of the domicile theory that Justice Thomas proposes, tested not against a hypothetical but against the very population the Reconstruction Congress is agreed to have had chiefly in view.
Domicile, in the technical sense the dissent invokes, requires factum, physical presence, joined to animus manendi, a settled intention to remain, an intention that presupposes a legal capacity to form it.
The enslaved person, under the law of slavery that governed the American South until 1865, possessed no such capacity. The law that Dred Scott articulated and that the slave codes had long practiced denied the enslaved person standing to contract, to marry with legal effect, or to choose a place of abode against an owner's will.
Dred Scott's own holding rests on exactly this denial, excluding from the constitutional category of “citizens” those descended from persons who, in Chief Justice Taney's phrase, had “no rights” cognizable under that instrument.
A domicile requirement, applied with the rigor its proponents claim for it, would therefore have to treat the enslaved person's location as an assigned domicile, derivative of the owner's will, in the manner that the common law treated a wife's domicile as derivative of her husband's or a minor's as derivative of a parent's guardian.
If this is correct, then the domicile theory cannot secure citizenship for the freedperson without first importing, by exception or by retroactive fiction, the very legal personhood that domicile elsewhere treats as a precondition rather than a consequence of citizenship. The theory does not simply fail to reach the freedperson. It dissolves the category it claims to explain at the exact point of application its own proponents say matters most.
It is this structural defect, rather than any biographical fact about Justice Thomas's own citizenship, which Justice Jackson gestures toward when she observes the tension between his professed and longstanding commitment to a colorblind Constitution and his willingness here to read the Citizenship Clause as tethered to the racial particularity of one group's circumstances at ratification.
The tension is genuine, and it is not resolved by the fact that Justice Thomas's own domicile, and therefore his own citizenship, is untouched by the difficulty, since a descendant of freed slaves born and raised in the United States satisfies the domicile test trivially. The difficulty belongs to the architecture of the argument, not to the person advancing it.
V. Argument
Turn now from the internal proof to the external pattern the passage under consideration is reaching toward, which is real, though it is not where the passage first locates it.
Chief Justice Roberts has, across more than a decade, developed a recognizable jurisprudential habit: resolving a case in a manner that appears, on its face, protective of an institution or a right, while explicitly reserving the deeper question for a future proceeding, and thereby leaving open a formal channel through which a later, differently postured case might reach the opposite result.
The clearest instance predates Barbara by thirteen years. In Shelby County v. Holder, the Chief Justice invalidated the coverage formula of the Voting Rights Act's preclearance regime, while inviting Congress to enact an updated formula responsive to current conditions.
No such formula has since been enacted, and the invitation, whatever its sincerity in 2013, has functioned in practice as a permanent closure dressed in the grammar of an open door.
The same habit recurs, in miniature, one day before Barbara was decided. In Trump v. Cook, the Chief Justice, writing again for a majority, declined to define the outer boundary of the President's power to remove a Federal Reserve governor for cause, resolving only that the particular process afforded in that instance had been insufficient.
The Court left explicit room for the President to renew the attempt upon supplying adequate notice and an opportunity to respond, a reservation that several observers read as leaving Federal Reserve independence, in the longer run, unresolved rather than secured.
Louisiana v. Callais, decided some two months before Barbara and cited by Justice Jackson herself among the list of cases in which this Court has, in her words, repeatedly denied Americans the promise of equal citizenship, extends the same formal colorblindness that animates Justice Thomas's dissent in Barbara into the law of voting.
Justice Alito's opinion in Callais, joined by the Chief Justice, subordinates Section 2 of the Voting Rights Act to an equal-protection framework that treats race-conscious remedial districting as itself constitutionally suspect, a doctrinal move that Justice Kagan's dissent, joined by Justices Sotomayor and Jackson, characterized as rendering the statute’s protections largely inoperative in redistricting cases. The Chief Justice did not author Callais, and the correction owed to the record must be repeated here as well: it is Justice Alito's opinion, not the Chief Justice's, that supplies the doctrinal engine.
What joins Callais to Barbara is not common authorship but a common grammar: both opinions locate the Fourteenth Amendment's meaning in a formal test, domicile in one case, colorblind neutrality in the other, that is indifferent on its face to the racial history from which the Amendment sprang, and that can therefore be redeployed, without any need to overrule Barbara itself, against whichever population a later litigant wishes to place outside the boundary the test defines.
This is the sense in which the passage's intuition about an ominous continuity across the Term is sound, even though its search for a single evisceration in Roberts's own prose in Barbara does not succeed: the peril lies not in what the Chief Justice said in this case, but in the interchangeability of the formal register he has helped to construct across several cases, a register capable of being filled, in the next case, with a content quite different from the one it holds today.
VI. Corollary
A further consequence follows for the concept of domicile itself, considered now not as a legal term of art but as a philosophical category. Domicile presupposes a subject already constituted, already capable of election, already standing in the kind of temporal continuity that permits an intention to remain to accumulate meaning.
Bergson's account of duration suggests why a formal category of this kind will always underdescribe the lived history it attempts to capture: duration is a qualitative continuity, each moment interpenetrating the next, and any attempt to spatialize it into discrete, countable states, residence here, intention there, necessarily loses what made the continuity a continuity in the first place.
Heidegger's analysis of Dasein's historicity supplies the complementary insight from the side of the subject rather than the category: a people's present legal standing cannot be understood apart from its having-been, so that a domicile test asking only where a person now stands, detached from the history of how that people came to stand anywhere at all, has already forgotten the ground on which the question depends.
Justice Jackson's genealogical method, whatever its outcome in this case, is therefore not merely a rhetorical counterweight to Justice Thomas's formalism. It is the only method, among the three on offer, that keeps faith with the kind of object the Fourteenth Amendment actually is: not a spatialized rule waiting to be applied, but a historical event whose having-been continues to determine what its words can rightly be made to mean.
VII. Measured Restatement
The majority in Trump v. Barbara reaches the correct result and grounds it, at real length, in the very genealogy of Dred Scott's repudiation that the passage under consideration supposed it had ignored. The domicile theory belongs to Justice Thomas's dissent, not to the Chief Justice, and that theory, tested against the enslaved and their immediate descendants rather than against birth tourists or the present-day undocumented, dissolves under its own criteria before it reaches the population the Reconstruction Congress is agreed to have most wished to protect.
The genuine peril Stoermer (and Professor Noah Feldman) senses is real, but it is diffuse rather than located, a pattern spread across Shelby County, Trump v. Cook, and Louisiana v. Callais rather than a single sentence in Barbara, and it consists in the Chief Justice's recurring willingness to resolve the case before him in a formal register that leaves the substantive, historically grounded register, the one Justice Jackson supplies, permanently available for erosion in some later case that Barbara itself does not foreclose.
VIII. Conclusion
Justice Roberts and Justice Jackson do indeed arrive, in Trump v. Barbara, at the same judgment from what the passage rightly calls two different universes of method. The danger is not that Justice Roberts's universe secretly contains an evisceration it has concealed. The danger is that his universe, being formal, can be entered by any future litigant carrying different facts and a different aim, while Justice Jackson's universe, being genealogical, resists exactly that kind of entry, because it insists that the meaning of a constitutional clause cannot be detached from the history that produced it. A settlement arrived at after a war is safest when the Court that enforces it remembers the war. Trump v. Barbara remembers it in its result. Whether the Court will continue to remember it in its method is the question this Term leaves, in the fullest sense, undecided.
