Also:
- Gerren Keith Gaynor, theGrio: Justice Jackson scolds Trump, Clarence Thomas in ruling against claim birthright citizenship was only for ‘babies of slaves’
- Max Rego, the Hill: Jackson rebukes Thomas over his birthright citizenship dissent
- Robert Schmad Fox News: Jackson accuses Thomas of echoing infamously racist court decision in birthright citizenship clash
_________________ _________________
1Cite as: 609 U. S. ____ (2026)
JACKSON
, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 25–365
DONALD J. TRUMP, PRESIDENT OF THE UNITEDSTATES,
ET AL
., PETITIONERS
v.
BARBARA,
ET AL
.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITEDSTATES COURT OF APPEALS FOR THE FIRST CIRCUIT[June 30, 2026]
J
USTICE
J
ACKSON
, with whom J
USTICE
S
OTOMAYOR
joinsas to the introduction and Part I, concurring.I join the Court’s opinion in full. I write separately torespond to some of the themes in the principal dissent. De-spite his longstanding endorsement of a “colorblind” Con-stitution, J
USTICE
T
HOMAS
now surprisingly suggests thatthe Citizenship Clause was a race-conscious remedialmeasure, relating only to “freed slaves such as Dred Scott,”
post
, at 56, and those who shared with them certain char-acteristics,
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 par-ents] not domiciled here” are not entitled to claim birthrightcitizenship.
Post
, at 3–4. But that narrow vision of theFourteenth Amendment bears little relationship to the his-tory of its ratification. Even worse, J
USTICE
T
HOMAS
’s tell-ing elides the entire point of the Second Founding: The Re-construction Amendments were an anticaste,antisubordination reset for the Nation, not a mere spottreatment for the dark stain of slavery.IIt is common ground that the Fourteenth Amendmentwas “enacted . . . with the one pervading purpose of secur-ing equal citizenship for the freed slaves.”
Post
, at 90
2 TRUMP
v.
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ACKSON
, J., concurring
(internal quotation marks omitted). Also true is the factthat this Court “has time and again denied Americans thatpromise.”
Post
, at 90.
1
But consensus about the Fourteenth Amendment’s central motivation does not justify J
USTICE
T
HOMAS
’s myopic treatment of it. The Amendment causeda paradigm shift in the trajectory of our Nation; the teacherwho scolds a student for bullying a classmate hopes the stu-dent learns the broader lesson of treating
everyone
withkindness, not just that one kid.In the aftermath of the Civil War, those who championedthe Fourteenth Amendment—both within and beyond Con-gress—understood the assignment. Their work productused “language that transcended race and region,” andthereby “changed and broadened the meaning of freedomfor
all
Americans.”
2
Instead of the limited salve the princi-pal dissent makes it out to be, the Citizenship Clause re-flects this universalist approach. AConsider, first, the voices of those outside the chambersof the Senate and the House of Representatives, whose ad-vocacy and organizing culminated in the Fourteenth
——————
1
I suspect, though, that J
USTICE
T
HOMAS
and I disagree about whenand how that promise has been denied by this Court. My list is long (andsadly only getting longer). For a sampling, consider:
Civil Rights Cases
,109 U. S. 3 (1883);
Plessy
v.
Ferguson
, 163 U. S. 537 (1896);
De Lima
v.
Bidwell
, 182 U. S. 1 (1901) (otherwise known as the Insular Cases);
Downes
v.
Bidwell
, 182 U. S. 244 (1901) (same);
Korematsu
v.
UnitedStates
, 323 U. S. 214 (1944);
Milliken
v.
Bradley
, 418 U. S. 717 (1974);
McCleskey
v.
Kemp
, 481 U. S. 279 (1987);
Parents Involved in Commu-nity Schools
v.
Seattle School Dist. No. 1
, 551 U. S. 701 (2007);
ShelbyCounty
v.
Holder
, 570 U. S. 529 (2013);
Students for Fair Admissions,Inc.
v.
President and Fellows of Harvard College
, 600 U. S. 181 (2023)(SFFA);
Louisiana
v.
Callais
, 608 U. S. ___ (2026).
2
E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, pp. 257–258 (1988) (emphasis added).
3Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
Amendment.
3
First in the North (as States abolished slav-ery), and then in the South (after Emancipation and theUnion’s victory in the Civil War), Black people who weregenerally not permitted at the polls or in the halls of powermobilized nevertheless to advance the universalist vision ofbelonging and citizenship that eventually won the day.The odds were long and the stakes were high. Indeed,around the time they gained their freedom, former slavesfaced a crisis similar in relevant respects to the Americanimmigrant experience. With little in terms of possessionsand even less in terms of opportunities to make a living forthemselves and their families, freed Blacks were not ush-ered warmly into the broader community (with apologies orcompensation), set up for success, or even given the rightsand privileges others enjoyed. Though they’d tilled the soilfor centuries and had labored to build every building, oncefreed, they were basically treated as “strangers” in a not-so-strange land.
4
This was not for lack of trying to survive and belong onthe freedmen’s part. They constructed churches, schools,and mutual-aid societies—safe zones amidst America’sracialized social and economic order.
5
Outside thoseenclaves, however, freed Blacks were characterized asunassimilable and incapable of full civic participation.
6
——————
3
Cf.
Wolford
v.
Lopez
, 609 U. S. ___, ___, n. 15 (2026) (J
ACKSON
, J., dis-senting) (slip op., at 28, n. 15) (explaining the importance of ensuringthat Black experiences and perspectives “are not (here again) excludedfrom” our analysis of the relevant history).
4
African Methodist Episcopal Church
v.
City of New Orleans
, 15 La. Ann. 441, 443 (1860); see also
ante,
at 6–7 (majority opinion) (citing I.Berlin, Slaves Without Masters 136–137 (1974)). Regarding freedmen inthe North prior to the Civil War, see also J. Horton & L. Horton, In Hopeof Liberty 125–176 (1997).
5
Ibid.
6
See D. Nieman, To Set the Law in Motion: The Freedmen’s Bureauand the Legal Rights of Blacks, 1865–1868, p. 72 (1979) (Nieman); seealso K. Stampp, The Era of Reconstruction 1865-1877, p. 12 (1965)
4 TRUMP
v.
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ACKSON
, J., concurring
Their humanity was disregarded.
7
Serious doubts abouttheir claims to citizenship were also being sown.
8
Thereason was clear: “[A]n integrated, race-blind society underthe rubric of ‘all men are created equal’—required a societalcommitment to” antisubordination principles and practices,
i
.
e
., “a well-resourced effort to undo the damage done toblack people by slavery.”
9
But “even the most ardentopponents of slavery recoiled” from that prospect.
10
One solution that gained traction in the early 1800s wasto physically separate the freedmen and other Black peoplefrom the general polity. Antislavery Northerners and pro-slavery Southerners found common cause in the idea thatfreed Blacks would surely “be happiest in a black-led repub-lic, beyond the contempt of and competition with white
——————(Stampp) (“In the nineteenth century most white Americans, North andSouth, had reservations about the Negro’s potentialities—doubted thathe had the innate intellectual capacity and moral fiber of the white manand assumed that after emancipation he would be relegated to an infe-rior caste”).
7
See I. Wilkerson, Caste: The Origins of Our Discontents 153 (2020)(Wilkerson) (“The crimes of homicide, of rape, and of assault and batterywere felonies in the slavery era as they are today . . . [b]ut the countryallowed most any atrocity to be inflicted on the black body”); see also,
e
.
g
.,
id
., at 147–148 (describing Alabama surgeon James Marion Sims,widely known as “the founding father of gynecology,” who pioneered pro-cedures by operating on Black female slaves without anesthesia; Simssaid the surgery was “ ‘not painful enough to justify the trouble’ ”); seegenerally D. Smith, Less Than Human: Why We Demean, Enslave, andExterminate Others 119 (2012) (“The dehumanization of African Ameri-cans did not end with the creation of the new nation in 1776, or with theabolition of slavery in 1865. Books and pamphlets published during thelatter part of the nineteenth and early twentieth centuries continued toassert that they were beasts”).
8
See O. Power-Greene, Against Wind and Tide: The African-AmericanStruggle Against the Colonization Movement 15–16 (2014)
.
9
See N. Guyatt, Bind Us Apart: How Enlightened Americans InventedRacial Segregation 247 (2016) (Guyatt).
10
Ibid.
5Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
Americans.”
11
This vision of “paternal caste” prompted thecreation of the American Colonization Society, which estab-lished the colony of Liberia and pushed for freed Blacks torelocate there voluntarily.
12
Once freed Blacks were out ofsight, they would (thankfully) be out of mind, eliminatingany need for a racial reckoning in America.Meanwhile, many States pushed the envelope, passing“Black Laws” (in the pre-War North) and “Black Codes” (inthe post-War South), intending to make it difficult for freedBlacks to live and work there.
13
Violence, too, played a sig-nificant role in the isolation effort. Those who opposed abo-lition banded together with those who resented the extracompetition in the job market to form marauding mobs,
——————
11
M. Jones, Birthright Citizens: A History of Race and Rights in Ante-bellum America 37–38 (2018) (Jones); see also Guyatt 268–269.By the middle of the century, colonization was so popular that it foundfavor with leading abolitionists, including President Abraham Lincoln.During an August 1862 meeting at the White House between Lincolnand a “committee of free Negroes,” Lincoln described a fund Congresshad created “for the purpose of ‘colonizing people of African descent,’ acause he had long favored.” C. Sandburg, Abraham Lincoln: The Prairie Years and the War Years 316 (1954). The problem, as Lincoln describedit to his visitors, was that “ ‘[y]our race suffers very greatly, many of them, by living among us, while ours suffers from your presence.’ ”
Ibid.
He continued: “ ‘Your race are suffering, in my judgment, the greatestwrong inflicted on any people. But even when you cease to be slaves, youare yet far removed from being placed on an equality with the whiterace.’ ”
Ibid.
Colonization would allow free Blacks to thrive, withoutforcing Whites to accommodate their demands for equal treatment andlegal protection. Interestingly, Lincoln held a universalist view ofcitizenship despite his support for the colonization movement. See
infra
,at 10–11.
12
Jones 37; see also E. Foner, The Second Founding: How the Civil Warand Reconstruction Remade the Constitution 12 (2019) (Foner, The Sec-ond Founding); Guyatt 267, 271–272.
13
For Black Laws, see,
e
.
g
., K. Masur, Until Justice Be Done 16–18,230–231 (2021) (Masur); Foner, The Second Founding 13. For BlackCodes, see,
e
.
g
.,
id
., 47–49; Nieman 72–76; Masur 309–310;
Wolford
, 609U. S., at ___–___ (slip op., at 26–32) (J
ACKSON
, J., dissenting) (discussingBlack Codes).
6 TRUMP
v.
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ACKSON
, J., concurring
ransacking Black neighborhoods, homes, and stores.
14
Andlocal law enforcement? They did little to help. BeforeEmancipation, per the federal Fugitive Slave Act, state of-ficers pursued and arrested Blacks suspected of having es-caped slavery. Afterwards, the cavalry looked the otherway when Black neighborhoods were terrorized by vigilanteviolence.
15
The Ku Klux Klan would form, and then flour-ish, starting in 1866.
16
——————
14
See D. Blight, Frederick Douglass: Prophet of Freedom 473 (2018)(Blight); Jones 95, 105; K. Lewis, A Curse Upon the Nation: Race, Free-dom, and Extermination in America and the Atlantic World 176, 182–183 (2017)
.
Frederick Douglass’s first-hand account from the Baltimoreof 1834 provides insight into White resentment over freed Blacks’ entryinto the labor market:“The circumstance which led to [my being fired] was the committing ofan outrage upon me, by the white apprentices of the ship-yard. The fightwas a desperate one, and I came out of it shockingly mangled. I was cutand bruised in sundry places, and my left eye was nearly knocked out ofits socket. The facts which led to this brutal outrage upon me illustratea phase of slavery which was destined to become an important elementin the overthrow of the slave system, and I may therefore state them withsome minuteness. That phase was this—the conflict of slavery with theinterests of white mechanics and laborers. In the country this conflictwas not so apparent; but in cities, such as Baltimore, Richmond, NewOrleans, Mobile, etc., it was seen pretty clearly. The slaveholders, witha craftiness peculiar to themselves, by encouraging the enmity of thepoor laboring white man against the blacks, succeeded in making thesaid white man almost as much a slave as the black slave himself.” F.Douglass, Life and Times of Frederick Douglass 223–224 (1892).
15
See Masur 234–235. The violence, of course, continued after the Warand during Reconstruction. The Colfax, Louisiana, massacre of 1873, forexample, was “[t]he bloodiest single instance of racial carnage in the Re-construction era.” Foner, Reconstruction, at 437. Two hundred andeighty Black people were ruthlessly slaughtered on Easter Sunday.“[T]he Colfax massacre taught many lessons, including the lengths towhich some opponents of Reconstruction would go to regain their accus-tomed authority.”
Ibid
.
16
Foner, Reconstruction, at 342, 428–429; see also
id
., at 430 (“[T]heKlan aimed to regulate blacks’ ‘station in society’”).
7Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
Still, most freed Blacks resisted the pressure to self-deport.
17
Instead, many started organizing toward thecreation of the kind of Nation the colonizationists opposed— one that guaranteed liberty and justice for all. In thedecades leading up to the ratification of the Fourteenth Amendment, Black Americans organized and gathered atmore than 600 local and national conventions across thecountry.
18
There, delegates erected the political andintellectual scaffolding for the Fourteenth Amendment and,later, for the Black Civil Rights Movement moregenerally.
19
Critically for present purposes, these visionaries alreadyunderstood themselves to be American citizens. “The re-frains ‘we are Americans’ and ‘we are citizens’ echoed inconferences throughout the North.”
20
Moreover, “[b]irth-right figured importantly” as “delegates frequently charac-terized their status as that of native-born citizens.”
21
The
——————
17
See generally Brief for Historians Martha S. Jones et al. as
AmiciCuriae
11–16.
18
See Colored Conventions Project, Conventions Records (Feb. 12,2025), https://www.coloredconventions.org/about-records/ (archived athttps://perma.cc/3ZD2-3WHS) (collecting “minutes, proceedings, news-paper articles, speeches, letters, transcripts, and images”); see also M.Sinha, The Rise and Fall of the Second American Republic: Reconstruc–tion, 1860–1920, p. 158 (2024); J. Fox, The Constitution of Black Aboli-tionism: Reframing the Second Founding, 23 U. Pa. J. Const. L. 267,272–334 (2021).
19
See E. Ball, Performing Politics, Creating Community: AntebellumBlack Conventions as Political Rituals in The Colored ConventionsMovement: Black Organizing in the Nineteenth Century (P. Foreman, J.Casey & S. Patterson eds., 2021), pp. 155–157.
20
Jones 63; see also Address of the Colored National Convention to thePeople of the United States, in Proceedings of the Colored National Con-vention, Held in Rochester, July 6th, 7th, and 8th, 1853, p. 8 (“We ad-dress you not as aliens nor as exiles, humbly asking to be permitted todwell among you in peace; but we address you as American citizens as-serting their rights on their own native soil”).
21
Jones 63; see also Proceedings of the National Convention of ColoredMen, Held in the City of Syracuse, N. Y., Oct. 4, 5, 6, and 7, 1864, p. 42
8 TRUMP
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ACKSON
, J., concurring
delegates argued that, as such, they had the requisite alle-giance, so, at a minimum, the Federal Government owedthem the duty of protection.
22
The famed orator Frederick Douglass was one of thesedelegates. Capturing the spirit of the moment, Douglassproclaimed that Chief Justice Taney—the author of the ma- jority opinion in
Dred Scott
v.
Sandford
, 19 How. 393(1857)—“[could] do many things, but he [could not] . . .change the essential nature of things.”
23
In the absence ofthe artificial evils of slavery and racial subordination,Douglass explained, “the glorious birthright of our commonhumanity, will become the inheritance of all the inhabit-ants of this highly favored country.”
24
Do note this: The citizenship thesis of the Colored Con-ventions was thus not that some
new
status should be cre-ated and conferred on freed Blacks. It was instead that
——————(Syracuse Convention) (“[H]ere were we born, for this country our fathersand brothers have fought, and here we hope to remain in full enjoymentof enfranchised manhood, and its dignities”).
22
This was, of course, an invocation of the principle of “
jus soli
,” see
ante,
at 4, which was well-known and widely accepted during this histor-ical period. Delegates at the Colored Conventions drew upon its twinduties—allegiance owed and protection given—to demand not only thattheir rights as humans be honored, but also that “due attention shouldbe given to our needs.” Syracuse Convention 42. The delegates pointedlyobserved that “[t]he laws which have made white men great, have de-graded us, because we were colored, and because we were reduced tochattel slavery.” Proceedings of the Colored People’s Convention of theState of South Carolina, Held in Zion Church, Charleston, Nov. 1865, p.23 (S. C. Convention). So, they argued, in slavery’s wake, the law neededto make things right: It had to provide “[e]quality—expressed in suchlanguage as equal liberty, equal justice, equal rights, and equal citizen-ship.” Foner, The Second Founding, at 13; see also
id
., at 94 (“We claimexactly the same rights, privileges, and immunities as are enjoyed bywhite men—we ask nothing more, and will be content with nothing less”(quoting The Colored Mass Convention held in Mobile (1867)).
23
Speech on the Dred Scott Decision (May 1857), in Two Speeches byFrederick Douglass (1857) pp. 27–30, 31, 32–46.
24
Id
., at 46.
9Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
freed Blacks already had a rightful claim to citizenship
be-cause they had been born on American soil
. After all, theNation, from its founding, had “boldly proclaim[ed] that allmen are born free and equal, and that consequently life, lib-erty, and the pursuit of happiness, are inherent in every in-dividual, vested inalienably by natural birthright.”
25
Noideal was more inherently American. Now, “rest[ing their]cause on the republican standard of the revolutionary Fa-thers,” freed Blacks were “knock[ing] at the doors of theconstitution and demand[ing] an entrance.”
26
And “[i]f . . .asked what evidence [they] bring to sustain [their] qualifi-cations for citizenship, [they would] offer them certificatesof . . . BIRTH and NATIVITY.”
27
Would the Nation live upto its promise?Such universalist appeals were a conscious choice. Yes,Black Americans had suffered a singular wrong. And yes,they had “‘fought and bled’” for the Union, paying a steepprice for their freedom.
28
But the delegates did not rest onthese laurels. Rather, they drew upon the moral and polit-ical force of the universal principles that were already coreto the Nation’s identity.That bears repeating: Freed Blacks did not advocate fora 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 marginalizedgroups. Instead, those whose gatherings helped galvanize
——————
25
Minutes of the State Convention of the Colored Citizens of the Stateof Michigan, Held in Detroit (Oct. 26–27, 1843), in 1 The Proceedings ofthe Black State Conventions, 1840–1865 (P. Foner & G. Walker eds.,1979), p. 192; see also Foner, The Second Founding, at 94 (“The formerslaves . . . self-consciously viewed themselves as individuals ‘newly in-vested with all the rights of an American citizen.’”).
26
Minutes of the State Convention of the Coloured Citizens of Penn-sylvania, Convened at Harrisburg (Dec. 13–14, 1848), p. 20.
27
Ibid
.
28
Post
, at 1 (T
HOMAS
, J., dissenting) (quoting 2 Life and Writings ofFrederick Douglass 256 (P. Foner ed. 1950)).
10 TRUMP
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, J., concurring
the push for full equality understood that “[a] diverse origindoes not disprove a common nature, nor does it disprove aunited destiny.”
29
The firmest foundation for freedomwould require an anticaste reset—“both for his sake and forours”
30
—and would benefit all.During his U. S. Senate candidacy, Abraham Lincoln de-veloped a similar vision. In the lead-up to the now-famousLincoln-Douglas debates, Lincoln explained that the prom-ise of liberty and equality in the Declaration of Independ-ence “was held sacred by all, and thought to include all.”
31
Lincoln expressly and intentionally linked the fate of Black Americans and immigrant groups (“among us perhaps halfour people who are not descendants at all” of the Founders),and noted that the Nation’s future hinged on a universaldefinition of citizenship that excluded neither.
32
He ex-plained that the Declaration’s promise that “all men arecreated equal” was the “electric cord . . . that links thehearts of patriotic and liberty-loving men together,” regard-less of race or descent.
33
The case was made. First, there was war. And then, thedelegates’ (and Lincoln’s) universalist view of citizenshipmade its mark on the Constitution.
——————
29
F. Douglass, The Claims of the Negro Ethnologically Considered: An Address, Before the Literary Societies of Western Reserve College, July12, 1854, p. 34.
30
F. Douglass, Composite Nation, Delivered in the Parker FraternityCourse, Boston, 1867, p. 21 (1867); see also
ibid.
(“I want a home herenot only for the negro, the mulatto and the Latin races, but I want the Asiatic to find a home here in the United States, and feel at homehere. . . . Right wrongs no man”).
31
Abraham Lincoln, Speech at Springfield, Illinois (June 26, 1857), in2 Collected Works of Abraham Lincoln, p. 404 (1953).
32
Abraham Lincoln, Speech at Chicago, Illinois (July 10, 1858), in 2
id
., at 499 (1953).
33
Id
., at 500.
11Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
BThe Civil Rights Act of 1866—the predecessor to the Cit-izenship Clause, see
ante,
at 8–9—was initially drafted asa spot treatment. Senator Lyman Trumbull’s first proposalhomed in on the freedmen and provided merely that “allpersons of African descent born in the United States arehereby declared to be citizens of the United States.”
34
If
that
language had prevailed, the view J
USTICE
T
HOMAS
as-serts today might be well founded. See
post
, at 4–5 (findingbirthright citizenship’s “feudal” origins inconsistent withCongress’s focus on “secur[ing] equal rights for the freedblacks”).But Senator Trumbull changed his mind. The day afterhe submitted that first proposal, he requested to “withdraw[the original] and . . . offer another in lieu of it to the samepurport, changing the phraseology.”
35
Consistent with the views espoused by activists, Trum-bull’s new proposal adopted a distinctly universalist regis-ter: “All persons born in the United States, and not subjectto any foreign power, are hereby declared to be citizens ofthe United States, without any distinction of color.”
36
Thisis the language Congress would eventually enact as part ofthe Civil Rights Act of 1866. And the Civil Rights Act of1866 would go on to become the basis for the Fourteenth Amendment’s Citizenship Clause.Senator Trumbull’s progression from specific to universalwas more than mere word choice. In the face of the virulentanti-immigrant—and, in particular, the anti-Chinese andthe anti-Romani—sentiment of that era, language target-ing just freed former slaves would have been the path of least (or less) resistance. But Senator Trumbull, along withthose colleagues who took up the same mantle during the
——————
34
Cong. Globe, 39th Cong., 1st Sess. 474 (1866).
35
Id
., at 498.
36
Ibid
.
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, J., concurring
ratification debates, expressly rejected that narrow fram-ing.Do not miss this context. Throughout the mid-19th cen-tury, Chinese immigrants to America were often portrayedas “‘coolies,’” a racist slur implying indentured servitudeand allegiance to a Chinese master.
37
Some Members ofCongress brought that sentiment to the Civil Rights Act’scitizenship-related debates. Notably focusing his attentionbeyond freed former slaves, Senator Edgar Cowan, for ex-ample, argued that German immigrants’ children born inPennsylvania should be citizens, but Chinese immigrants’children should not—because Germans and Chinese weredifferent.
38
In response, Senator Trumbull emphasizedthat the law he had drafted drew no such distinctions.
39
Undeterred, Senator Cowan would warn again—thistime during debates on the Fourteenth Amendment—thatthe Citizenship Clause would let Chinese immigrants“overrun” California and “double or treble the population”of that State.
40
Senator John Conness of California, whereanti-Chinese sentiment was arguably most pronounced, re-sponded that “the children begotten of Chinese parents in
——————
37
J. Shugerman, An Originalist Case for Birthright Citizenship 77U. C. L. J. (forthcoming 2026) (draft, at 3). When anti-Chinese sentimentreached a fever pitch decades later, Congress enacted the Chinese Exclu-sion Act and prohibited all Chinese immigration. See
id
., at 26. JusticeHarlan’s dissent in
Plessy
v.
Ferguson
—the “most celebrated Fourteenth Amendment opinion” according the principal dissent, see
post,
at 37—did not rise above such prejudice. Justice Harlan described Chinese im-migrants as a “race so different from our own that we do not permit thosebelonging to it to become citizens of the United States” and instead deemthem “absolutely excluded from our country.” 163 U. S., at 561 (dissent-ing opinion). Justice Harlan thus drove a wedge between Black Ameri-cans and other non-Black minorities.
38
Cong. Globe, 39th Cong., 1st Sess., at 498 (“The children of Germanparents are citizens; but Germans are not Chinese”).
39
Ibid
.; see also
ante,
at 9.
40
Cong. Globe, 39th Cong., 1st Sess., at 2891.
13Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
California . . . shall be citizens.”
41
In fact, he said, the CivilRights Act had already declared “that the children of allparentage whatever . . . should be regarded and treated ascitizens of the United States.”
42
No Senator rose to agreewith Senator Cowan or dispute what Senator Conness hadsaid.
43
And no Senator said what the principal dissent saystoday: that the text at issue conferred citizenship only onfreed Blacks and those in analogous situations.
44
The debates went similarly with respect to the Roma peo-ple, who were referred to at the time as “gypsies.”
45
Whenasked whether native-born Romani children would be birth-right citizens of the United States under the proposed CivilRights Act, Senator Trumbull replied: “Undoubtedly.”
46
President Andrew Johnson apparently agreed. In his mes-sage vetoing the Act, Johnson noted with disapproval that,under the law, “the Chinese of the Pacific States, Indianssubject to taxation, the people called gypsies, as well as the
——————
41
Ibid
.
42
Ibid
.
43
See
id
., at 2891–2897.
44
See Shugerman, 77 U. C. L. J. (draft, at 26). In response to this his-tory, the principal dissent notes that Francis Wharton, a late-1800s legalscholar and State Department official, posited that because foreigners“ ‘born in the United States’ of ‘parents not being here domiciled’ ” are notsubject to the jurisdiction of the United States, Chinese children born inthis country “ ‘are not citizens.’ ”
Post
, at 39 (quoting Conflict of Laws 41(2d ed. 1881)). But J
USTICE
T
HOMAS
leaves out the motivation behindWharton’s contention: not the Constitution, but that the Chinese wereinsufficiently “civiliz[ed]” and that “[t]o admit such rights to an emigrat-ing nation, would be not merely to establish a foreign sovereign, but aforeign barbarism, within our national domain.” Conflict of Laws 26(1872)
.
45
William Blackstone called the Roma people “Egyptians” and brandedthem “outlandish.” See 4 Commentaries on the Laws of England 165(1770). (He did not exclude them from the common-law rule of birthrightcitizenship, however. See
id
., at 166.) The proper term for this grouptoday is “Romani” or the “Roma people.” See Brief for Gerard N. Mag-liocca as
Amicus Curiae
1, n. 2.
46
Cong. Globe, 39th Cong., 1st Sess., at 498.
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, J., concurring
entire race designated as blacks,” would be birthright citi-zens.
47
Without making any changes to the bill or respond-ing that Johnson was mistaken in his understanding of it(or otherwise capitulating to Johnson’s views in any re-spect), Congress overrode that presidential veto.
48
During the ratification debates, Senator Cowan took aimat the Roma people too, characterizing them as undeservingof birthright citizenship because they “wander[ed] ingangs,” “infest[ed] society,” and “impos[ed] upon the simpleand weak everywhere.”
49
And again, Senator Conness dis-missed Senator Cowan’s prejudices: “The only invasion ofPennsylvania within my recollection was an invasion verymuch worse and more disastrous to the State, and more tobe feared and more feared, than that of Gypsies. It was aninvasion of rebels [at Gettysburg].”
50
When ratified, the Citizenship Clause thus vindicated theuniversalist vision of the delegates at the Colored Conven-tions and their allies in Congress. Far from the principaldissent’s representations, freed Blacks did not receive citi-zenship as a reward for their military service or for having,through no choice of their own, “no other homeland [and] noallegiance to any foreign power.”
Post,
at 1. Instead, the Amendment recognized their rightful claim to birthrightcitizenship simply and solely by virtue of their having beenborn on American soil. John Bingham—one of the Amend-ment’s principal architects—said this clearly: The “rights
——————
47
A. Johnson, Veto Message (Mar. 27, 1866), in 6 Compilation of theMessages and Papers of the Presidents 405 (J. Richardson, ed. 1897); seeFoner, Reconstruction, at 247–248.
48
E. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869,p. 70 (1990).
49
Cong. Globe., 39th Cong., 1st Sess., at 2891.
50
Id
., at 2892.
15Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
of citizenship” are universal because they are the “sacredrights of person[hood].”
51
With this recognition, the U. S. Constitution finally gotan anticaste engine. And with it, the Nation gained a newfont of legitimacy and vitality.IIFast forward 150 years, to 2026. Section One of the Four-teenth Amendment still contains that same universalistlanguage, consistent with its origins and the ratifiers’ in-tent. So, respondents say, our Constitution confers citizen-ship upon almost anyone and everyone who is born on American soil—to include the children of immigrants andtemporary sojourners not domiciled in the United States— just as it did at the time of the Fourteenth Amendment’sratification.
52
But the Government’s view (which the principal dissentadopts) rejects this. Its argument focuses on the fact thatthe Citizenship Clause had a particular purpose: to reverse
Dred Scott
’s holding that Black Americans were not entitledto citizenship. See Brief for Petitioners 13–14;
post,
at 1–2.The reasoning is, in essence, that the Fourteenth Amend-ment recognized freed Blacks as citizens because they had“‘fought and bled’” in the Civil War, “had no other home-land, owed no allegiance to any foreign power, and weresubject to no other authority.”
Post
, at 1; see also Brief forPetitioners 16–18. Thus, the argument goes, the
——————
51
Id
., at 1090. Bingham “believed the liberation of the slaves hadforced the United States to federalize the Bill of Rights and apply it toall Americans.” Blight 479.
52
Brief for Respondents 7–23. At this point, the “almost” caveat per-tains mainly to “the ‘children of ambassadors’ and other representativesof foreign sovereigns.”
Ante
, at 15 (quoting
United States
v.
Wong Kim Ark
, 169 U. S. 649, 675 (1898)). Congress addressed the founding-eraexclusion of “those born in the ‘alien nations’ of Indian tribes,”
ante
, at15 (quoting
Wong Kim Ark
, 169 U. S., at 681), in 1924, with its enactmentof the Indian Citizenship Act, ch. 233, 43 Stat. 253.
16 TRUMP
v.
BARBARAJ
ACKSON
, J., concurring
Amendment’s guarantees are for only Black Americans andthose who fit their fought-and-bled-for-country, no-other-homeland, domiciled mold.
Post
, at 1–3, 90.That contention is ahistorical for the reasons laid out inPart I,
supra
, and those explained in the Court’s opinion.In my view, it is also difficult to square with the notion of a“color-blind” Constitution, which has loomed large in theCourt’s Fourteenth Amendment jurisprudence.
53
TheCourt’s conception of a color-blind Constitution and theGovernment’s (and principal dissent’s) cramped, group-spe-cific reading of the Citizenship Clause are two sides of thesame coin, stemming from a basic misunderstanding of the
——————
53
See
Allen
v.
Milligan
, 608 U. S. ___, ___, ___ (2026) (
per curiam
) (slipop., at 1, 3) (concluding, in light of “our colorblind Constitution,” that itis likely unconstitutional for States to be ordered to draw maps that pro-vide fair electoral opportunities for Black Americans, no matter the race-conscious, remedial origin of the Fourteenth Amendment that made the Voting Rights Act possible);
SFFA
, 600 U. S., at 213 (declaring that race-conscious university admissions programs that promote diversity violatethe Fourteenth Amendment); see also
Parents Involved
, 551 U. S., at747–748 (plurality opinion) (rejecting efforts to defend race-consciouspublic-school placements against claims of unconstitutional discrimina-tion brought by White students).There are myriad ways in which the Court’s adherence to color-blind-ness is mistaken, some of which I have addressed in other opinions. See
SFFA
, 600 U. S., at 385 (J
ACKSON
, J., dissenting); see also,
e.g.
,
id
., at206, 208 (majority opinion) (conflating “[e]liminating racial discrimina-tion” with eliminating all “[d]istinctions between citizens solely becauseof their ancestry” (internal quotation marks omitted));
Callais
, 608 U. S.,at ___ (slip op., at 17–18) (similar);
Parents Involved
, 551 U. S., at 747–748 (declaring that “[t]he way to stop discrimination on the basis of raceis to stop discriminating on the basis of race,” including by ceasing anyrace-conscious action designed to remediate the consequences of deeplyentrenched housing segregation). My concern now is that a fleeting na-ture is among its many flaws. One wonders how the outcomes in theabove cases might have differed had the Court, like the Government andthe principal dissent today, relied upon the fact that the Fourteenth Amendment was enacted to ensure that Black Americans are not treatedas second-class citizens, or had it at least acknowledged the connectionbetween the Amendment’s historical context and its remedial purpose.
17Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
relevant history. As I have shown in this opinion, the Four-teenth Amendment is
not
color-blind; rather, its core prin-ciple is that our Nation does not tolerate racial caste—
i
.
e
.,the systemic subordination that many (even some who op-posed slavery) had wished to perpetuate after the CivilWar.
54
So, the architects of the Second Founding did notthink or pretend that race didn’t matter. Quite to the con-trary, they understood that race made an enormous differ-ence to the lived experiences of all concerned—and to thefate of our union. Indeed, it is for that very reason that aradical restructuring was required.
55
The CitizenshipClause applies universally precisely because such universalapplication was necessary to achieve the Amendment’s ownrace-conscious remedial purposes.Putting a finer point on this: When colonizationists ob- jected to changing their norms to accommodate the equalcitizenship and rights of freedmen, freed Blacks and theirallies organized to push for a Constitution that would bringtheir own antisubordination vision to fruition. See
supra
,7–10. That kind of ambitious transformation—nothing lessthan the remaking of the soul of a Nation beset by rank,entrenched race-based prejudice and inequity—did notcome for free, or purely by the say-so of those who claimedto be “color-blind.” It required heavy lifting, a fundamentalshift—the very thing for which the Fourteenth Amendment
——————
54
“A caste system is an artificial construction, a fixed and embeddedranking of human value that sets the presumed supremacy of one groupagainst the presumed inferiority of other groups on the basis of ancestryand often immutable traits, traits that would be neutral in the abstractbut are ascribed life-and-death meaning in a hierarchy favoring the dom-inant caste whose forebears designed it. . . . [T]hroughout human history,across time and space, [at least] three caste systems have stood out tothis day. The tragically accelerated, chilling, and officially vanquishedcaste system of Nazi Germany. The lingering, millennia-long caste sys-tem of India. And the shape-shifting, unspoken, race-based caste pyra-mid in the United States.” Wilkerson 17.
55
Stampp 12.
18 TRUMP
v.
BARBARAJ
ACKSON
, J., concurring
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 striveto eliminate, all remaining vestiges of historical subjuga-tion.So the principal dissent is wrong to complain that theCourt “has repurposed the Fourteenth Amendment to pro-tect . . . rights that the Reconstruction Congress never con-templated.” See
post
, at 91. Delegates to the Colored Con-ventions drew upon their own experiences to successfullyargue for a new Constitution—one that protected funda-mental human rights, including an individual’s “‘right toown his body and mind’” and “the right of personal securityand protection against injuries to our bodies or goodname.”
56
Thus, even in cases where the protagonist was nota Black American, this Court’s Fourteenth Amendmentcases have focused, at bottom, on the same universal libertyand equality interests that motivated the Fourteenth Amendment itself. The question is (and always has been):Does the affected individual or group enjoy equal dignity? And the correct answer is (and has always been) to heed theFourteenth Amendment’s universalist, antisubordinationcommand. Our Nation did not undergo something as pro-found and world-shifting as “Reconstruction” for naught.*** After the Civil War, Fredrick Douglass frequently re-flected on the events of the time through the lens of biblicalstories. In one speech, Douglass described how God leveledSodom and Gomorrah on account of sin, and how, in the af-termath, Abraham stood atop a nearby mountain to surveywhat remained. “[T]he orator used the image of Abraham
——————
56
S. C. Convention 27; see also
ibid.
(asserting that “our bodies havebeen outraged with impunity”); Syracuse Convention 41 (“As a people,we have been denied ownership of our bodies, our wives, homes, children,and the products of our own labor”).
19Cite as: 609 U. S. ____ (2026)J
ACKSON
, J., concurring
looking down upon the destroyed landscape to demand that Americans look down upon their own recent self-destruc-tion, and all but unjustified survival, and
remember
.”
57
Douglass declared that his own aim was to “‘show that na-tions should have memories.’”
58
In the time since Douglass’s prescient observation, Amer-icans have come to learn that fading memories are not theonly danger. The distortion of historical facts—retellingsthat reimagine and repurpose past events to lend credenceto misbegotten aims—may be an even greater threat. Yet here we are. The Government, the principal dissent,and a handful of revisionist commentators now vigorouslypromote an interpretation of the Citizenship Clause that di-verges sharply not only from what the text says, but alsofrom the historical record as interpreted by the keepers of “the call of remembrance” (trained historians).
59
What ismore, this alternative account pitches Black Americansagainst immigrants when the advocates who promoted theFourteenth Amendment did no such thing. Freed Blacksfought for the shared humanity of
all
people. And the GreatEmancipator eventually foresaw that the only path forwardthat could prevent a return—in any form—to slavery andrace-based subordination was to link the fates of all.
——————
57
Blight 482.
58
Ibid.
59
Ibid
.; see Brief for Historians Martha S. Jones et al. as
Amici Curiae
;Brief for Race Law Scholars as
Amici Curiae
4–12; Brief for OriginalistScholars Evan D. Bernick et al. as
Amici Curiae
; Brief for Gerard N.Magliocca as
Amicus Curiae
4–7. A substantial amount of scholarly workhas been done to unearth historical truths about the facts and circum-stances that gave rise to the Reconstruction Amendments. In additionto the sources I have cited throughout this opinion, see, for example, D.Faust, This Republic of Suffering: Death and the American Civil War(2008); E. Mathisen, The Loyal Republic: Traitors, Slaves, and the Re-making of Citizenship in Civil War America (2018); K. Stampp, Americain 1857: A Nation on the Brink (1990).
20 TRUMP
v.
BARBARAJ
ACKSON
, J., concurring
Ultimately, then, it is the Government and J
USTICE
T
HOMAS
who have “repurposed the Fourteenth Amend-ment.”
Post,
at 91. By ignoring that our Constitutionstands firmly against caste and subjugation—on all axesand in all manners—they deny the clear, universalist visionshared and proclaimed by the Fourteenth Amendment’sFramers: to “rebuild a shattered empire . . . to plant deepand solid the corner-stone of eternal justice, and to erectthereon a superstructure of perfect equality of every humanbeing before the law.”
60
Of course, the ultimate irony is that for all the talk aboutthe detestable
Dred Scott
decision, the Government and theprincipal dissent propose a return to its core tenet. Theirbottom line is that, for certain people, being born on Amer-ican soil will not suffice to confer citizenship. It is that odi-ous conclusion that the Citizenship Clause plainly rejects,as the Court explains.
Ante,
at 26. I add only that the Four-teenth Amendment’s universalist aims should forever bethe death knell for this kind of claim—one that seeks tomake bloodline the marker of birthright. The America thatwas reborn from the rubble of the Civil War simply does notcountenance that inequitable result. Thankfully, a major-ity of the Court
remembered
this today, and has dutifullypreserved the most basic animating principle of our Na-tion’s founding—that all human beings are created equal—once more.
——————
60
Address by Congressman Thaddeus Stevens, Bedford, Pa., Sept. 4,1866, in Cincinnati Commercial, Sept. 11, 1866, p. 2, col. 1
