Quote · The Ben Shapiro Show
Ep. 2456 - LIVE: Ben Breaks Down SCOTUS on Birthright Citizenship
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Justice Thomas's Dissent: Domicile Is the Foundation of Citizenship
At 43:20 · chapter starts 33:20
This is the intellectual core of the episode. Shapiro walks through Thomas's 91-page stemwinder, the longest dissent Thomas has ever written, which systematically dismantles the Roberts majority's historical narrative. Thomas's core argument is that the Citizenship Clause was crafted to remedy one specific injustice — the denial of citizenship to Black Americans who had no other homeland, no foreign allegiance, and were permanently domiciled in the United States. Dred Scott denied them what was rightfully theirs; the 14th Amendment corrected that. But the same logic cannot apply to children of foreign temporary visitors, who are attached to their home countries and lack the bonds of permanent residence. Thomas argues the legal concept of domicile — one's permanent home — was so central to 19th-century citizenship law that it was considered synonymous with citizenship itself. Justice Bushrod Washington, he notes, equated domicile with citizenship explicitly. Under this framework, a baby born to Mexican parents who entered illegally, with the family's domicile remaining in Mexico, is no more American than the parents. Thomas also revisits Wong Kim Ark, arguing the Chinese parents in that case were effectively domiciled in the U.S. because the Chinese Exclusion Act barred them from both renouncing Chinese citizenship (on pain of death) and obtaining American citizenship — making them de facto stateless Americans. Shapiro declares Thomas's dissent 'dispositive' and 'very clearly correct.'
Roberts cited 128 years of precedent since United States v. Wong Kim Ark (1898) as support for the birthright citizenship interpretation.
Thomas writes 91 pages to make one fundamental point: citizenship in America has always required domicile — that a place is your home. Birth alone was never enough. A baby dropped on U.S. soil by parents who owe allegiance to a foreign country was never, under the original meaning, an American citizen.
Thomas doesn't reject Wong Kim Ark — he reinterprets it. The Chinese parents in that case couldn't renounce their Chinese citizenship (it meant death) and couldn't obtain American citizenship due to the Chinese Exclusion Act. They were effectively domiciled in the U.S., which is why their child was a citizen.
Thomas argued that the Chinese parents in Wong Kim Ark were effectively domiciled in the U.S. because the Chinese Exclusion Act of 1882 barred them from obtaining U.S. citizenship.
