I haven’t read the Court opinions, but from what I’ve heard, Justice Thomas sails blithely past the fundamental rule of constitutional and statutory interpretation, without even a passing nod.
If I remember correctly from law school (which I left almost 40 years ago), statutory (or constitutional) interpretation starts with the plain language of the statute/provision. The idea arises from English common law. Torts, for example, in the common law, arise from practice, not legislation (I speak generally). So “assault” is defined in case law as an “offensive contact,” and further refined “offensive” as understood by “a reasonably prudent person.” (No, I’m not going to define that. This discussion won’t need more rabbit holes.) To determine what that means on the facts presented by a particular case, you have to refer to relevant case law, seeking definitions of “contact” and “offensive,” and so on. I can tell you that, while you might think contact must be bodily, in one case the defendant struck the tray out of the hands of the plaintiff. That was deemed “contact” sufficient to establish the tort.
Similarly, with statutory interpretation, one begins with the case law. I don’t know what Thomas does with Wong Kim Ark, but that case clearly held that a person born here was “subject to the jurisdiction thereof.” His parents certainly were: the Chinese Exclusion Act barred them from being citizens, but not, the Court held, their child, under a very plain reading of the first clause of the 14th Amendment. Which, frankly, I find dispositive of Thomas’ putative argument. At least what I’ve read about it. (Caveats abound!) If the case law doesn’t provide an adequate interpretation of the statute based on the facts presented, one turns, carefully, to statutory interpretation.
Such interpretation starts with the language of the law. If that doesn’t clearly answer the question, one looks to the legislative history, or even how words and phrases were understood at the time the law was adopted. I can tell you as some trained in textual analysis and word changes (both in literature and Biblical works), that the rules of statutory interpretation are often obtuse and bizarre. But we don’t have to go into them because, as I said, Thomas doesn’t.
What Thomas does is ignore the language of the 14th, and replace it with his own. So children of slaves get citizenship, which bootstraps him into citizenship. (Rather like Thomas would undo every Court ruling on what marriages are allowed by the Constitution, except Loving v Virginia, the case that disallows criminalizing mixed race marriages.) But people not “domiciled” here, says Thomas, have no such privilege.
Here I would point out that “domicile” and “residency” have little meaning in Texas law. You need an address in order to register to vote; or to use some of the city services of Houston, like recycling centers (largely meant to keep companies from showing up with skiploaders of trash). But “residency” had limited meaning in Texas law, and I don’t believe the word appears anywhere in the Constitution. Even the restrictions on the President, who must be over 35 and a “natural born citizen” (i.e., by birth), doesn’t include being a resident of the United States, or domiciled here. Frankly, if we’re going to add requirements to the qualifications, it should bar anyone convicted of a crime of moral turpitude. A felony, IOW. But we can’t interpret the Constitution that way (or even bar a candidate for participating in an insurrection; clause 3 of the 14th.) We can decide a President enjoys limited criminal immunity, but that’s a different question of Constitutional interpretation (not really different, but we pretend it is).
But I digress, and I said I wouldn’t do that. The point being, Thomas is reading the requirements of residence or domicile, even allegiance, into the plain text of the Constitution, when those words don’t appear, those concepts don’t apply (else they would have been included). I was a child in school pledging allegiance to the flag and the United States long before I had any idea what I was pledging (or what “pledging” meant), but I was an American citizen ab initio, because of place of birth, not because of my parents (i.e., blood). Nor did the freed slaves have to pledge allegiance in order to be free (the states put a lot of other restrictions on them, but that’s another matter). Indeed, the descendants of slaves didn’t enjoy the full benefits of citizenship until the Civil Rights movement and the Civil Rights and Voting Rights Acts (now a half a loaf victory, thanks to this Court).
Thomas, in short, wants to create a 14h Amendment as he sees fit, from whole cloth, and tailored to his individual preferences. The latter he doesn’t get in this republic, although he and Stephen Miller and Elon Musk, among others, think they’re entitled to do so, simply because they prefer the country that way. As for the former, that would require an amendment to the 14th Amendment (that would not be a constitutional anomaly), which he can retire and lobby Congress for as a private citizen. Of course, his sugar daddies might not be quite so interested in buying gifts for him then….
We’re gonna need two Congresses simultaneously; or just one, that can walk and chew gum. There’s a lot of legislation to be written and/or amended (starting with the VRA, ending with the size, and term limits, of the Court); and a separate track just to clean the Augean stables of the rank corruption these decades have wrought.
But they can start with forcing the corrupt Thomas from the bench. His corruption is not just ethical, it’s in his legal reasoning, which is NOT all created equal but just applied differently. If that were true, we’d all be able to graduate law school handily. And then we really would have an Idiocracy.
(Somebody told Trump
about U.S. v. Ark. That link also shows the argument accepted by Thomas has an old, and racist, pedigree,
Quelle surprise, huh?
