MR. JUSTICE CLARENCE THOMAS IS WRONG!
Nassau, The Bahamas
When ideologues read the law, they do not seek the law. They seek confirmation of what they wish the law to be. Take domicile: within Anglo-American jurisprudence, it has never named a fact of mere LOCATION; it has named an ACT OF WILL conjoined to a FACT OF PRESENCE.
Mr. Justice Story, in his “Commentaries on the Conflict of Laws”, designated the union of ‘factum’ and ‘animus manendi’, the bodily residing and the intention to remain.
Therefore, to possess domicile, in the technical sense Justice Thomas’ dissent invokes, is to be capable of an act of SELECTION, ELECTION, DIRECTION, VOLITION, DECISION…which is to say: AN ACT OF WILL and to be present.
A juridical capacity to choose one’s place and to be recognized by law as having chosen it. This capacity presupposes legal personhood: the standing, before the sovereign, to perform acts the sovereign will count as one’s own.
In context, the enslaved person, under the law that governed slavery in the United States before 1865, was precisely excluded from this capacity. Slave codes throughout the South denied the enslaved person standing to contract, to sue, to marry with legal effect, to choose a place of abode against the will of an owner and domicile, being itself a species of legal election, cannot be exercised by one to whom the law denies the power of election. The enslaved person’s location was assigned, as a wife’s or a minor child’s domicile was assigned under coverture, by the will of another; it was, in the vocabulary of the doctrine, a derivative domicile, never an acquired one.
One need not travel far for confirmation; the Court’s own decision in Dred Scott v. Sandford, (1857), rests on EXACTLY this denial: that the enslaved person and his descendants stood outside the category of persons inherently capable of the juridical acts, citizenship among them, that domicile presupposes.
The Reconstruction Congress - which Thomas mentions - did not legislate against an empty premise. It legislated against a settled doctrine in which the very people the Fourteenth Amendment meant to enfranchise had been denied, by the law of slavery itself, the legal personhood from which domicile in the technical sense flows.
Here a transition from constitutional history to a question of logical form becomes necessary, and I mark it as such:
1. If a domicile-based test for citizenship requires antecedent legal personhood
2. If legal personhood is the very thing slavery withheld,
3. THEN….necessarily…a domicile-based test cannot, by its own internal logical criteria, secure citizenship for the freed slave without first smuggling in, by exception or by retroactive fiction, the personhood - the power of will - that the test elsewhere presupposes as already given. The test would have to suspend itself in the one case it claims to have been written for.
Thomas’s own citizenship as an American is secured, not by an “act of will” as Dred Scott promulgated…it is secured by presence; which the Fourteenth Amendment secures to him by birth on American soil independent of any domicile inquiry whatever once jus soli is the governing rule, as the majority held.
It is rather a defect internal to the structure of the domicile theory itself: that the theory, applied with any rigor to the historical condition of the enslaved, dissolves the very class it was offered to protect. This is the structural form of the objection Madam Justice Jackson raised in concurrence, when she noted the discord between Thomas’s professed colorblindness and a theory that requires racial particularity to do its remedial work.
The difficulty is not biographical but architectonic. Rather, it belongs to the shape of the argument and not to the person of Justice Thomas.
