In a ruling issued on the eve of the 250th anniversary of America’s founding, the U.S. Supreme Court rejected President Donald Trump’s racist attempt to end birthright citizenship.
Justice Ketanji Brown Jackson, in a concurring opinion for the court, wrote that the 14th Amendment was fundamentally about dismantling the nation’s caste system.
In a 20-page concurring opinion, Jackson painted a picture of America’s racial beginnings, including the history of slavery, to demonstrate that the Fourteenth Amendment was designed to dismantle America’s caste system. She drew not only from constitutional knowledge but also from scholars, including Frederick Douglass and Isabel Wilkerson, who is the author of “Caste: The Origins of Our Discontents” — describing the amendment as giving the Constitution an “anticaste engine.”
Read an abridged version of her concurring opinion, with Justice Sonia Sotomayor joining in the introduction and Part 1, below. The full opinion can be read here.
I join the Court’s opinion in full. I write separately to respond to some of the themes in the principal dissent. Despite his longstanding endorsement of a “colorblind” Constitution, JUSTICE THOMAS now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to “freed slaves such as Dred Scott,” post, at 56, and those who shared with them certain characteristics, post, at 1 (“no other homeland”); post, at 21 (“called America home”). It is for this reason, he says, that “children who were born in the United States but [to parents] not domiciled here” are not entitled to claim birthright citizenship. Post, at 3–4. But that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification. Even worse, JUSTICE THOMAS’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.
In the aftermath of the Civil War, those who championed the Fourteenth Amendment—both within and beyond Congress—understood the assignment. Their work product used “language that transcended race and region,” and thereby “changed and broadened the meaning of freedom for all Americans.” Instead of the limited salve the principal dissent makes it out to be, the Citizenship Clause reflects this universalist approach.
Freed Blacks did not advocate for a unique set of rules that catered only to their situation. Nor did they seek to advance their own position relative to, or at the expense and exclusion of, other marginalized groups. Instead, those whose gatherings helped galvanize the push for full equality understood that “[a] diverse origin does not disprove a common nature, nor does it disprove a united destiny.” The firmest foundation for freedom would require an anticaste reset—“both for his sake and for ours”—and would benefit all.
As I have shown in this opinion, the Fourteenth Amendment is not color-blind; rather, its core principle is that our Nation does not tolerate racial caste—i.e., the systemic subordination that many (even some who opposed slavery) had wished to perpetuate after the Civil War. So, the architects of the Second Founding did not think or pretend that race didn’t matter. Quite to the contrary, they understood that race made an enormous difference to the lived experiences of all concerned—and to the fate of our union. Indeed, it is for that very reason that a radical restructuring was required. The Citizenship Clause applies universally precisely because such universal application was necessary to achieve the Amendment’s own race-conscious remedial purposes.
Putting a finer point on this: When colonizationists objected to changing their norms to accommodate the equal citizenship and rights of freedmen, freed Blacks and their allies organized to push for a Constitution that would bring their own antisubordination vision to fruition. See supra, 7–10. That kind of ambitious transformation—nothing less than the remaking of the soul of a Nation beset by rank, entrenched race-based prejudice and inequity—did not come for free, or purely by the say-so of those who claimed to be “color-blind.” It required heavy lifting, a fundamental shift—the very thing for which the Fourteenth Amendment stands: a repudiation of the notion that there is a “superior, dominant, ruling class of citizens,” Plessy, 163 U.S., at 559 (Harlan, J., dissenting), and a willingness to see, and strive to eliminate, all remaining vestiges of historical subjugation.
After the Civil War, Fredrick Douglass frequently reflected on the events of the time through the lens of biblical stories. In one speech, Douglass described how God leveled Sodom and Gomorrah on account of sin, and how, in the aftermath, Abraham stood atop a nearby mountain to survey what remained. “[T]he orator used the image of Abraham looking down upon the destroyed landscape to demand that Americans look down upon their own recent self-destruction, and all but unjustified survival, and remember.” Douglass declared that his own aim was to “‘show that nations should have memories.’” In the time since Douglass’s prescient observation, Americans have come to learn that fading memories are not the only danger. The distortion of historical facts—retellings that reimagine and repurpose past events to lend credence to misbegotten aims—may be an even greater threat.
Freed Blacks fought for the shared humanity of all people. And the Great Emancipator eventually foresaw that the only path forward that could prevent a return—in any form—to slavery and race-based subordination was to link the fates of all.
Ultimately, then, it is the Government and JUSTICE THOMAS who have “repurposed the Fourteenth Amendment.” Post, at 91. By ignoring that our Constitution stands firmly against caste and subjugation—on all axes and in all manners—they deny the clear, universalist vision shared and proclaimed by the Fourteenth Amendment’s Framers: to “rebuild a shattered empire . . . to plant deep and solid the corner-stone of eternal justice, and to erect thereon a superstructure of perfect equality of every human being before the law.”
