The Significance of Parental Domicile Under the Citizenship Clause

Virginia Law Review ^ | APRIL 2015 | Justin Lollman

[nathanbedford]

In addressing these issues, this Note seeks to fill a significant gap in the legal literature. To date, little scholarly attention has been paid to whether the Citizenship Clause, as interpreted in Wong Kim Ark, requires a showing of parental domicile. What is more, no scholar has ever actually analyzed, in any systematic way, how such a requirement would apply to the U.S.-born children of illegal immigrants. The requirement for which this Note argues is unique in two main respects.

[DiogenesLamp]

Citizenship by birth is defined by the Constitution and cannot be redefined by Congress, that is the holding of the Wong case.

Citizenship is not defined in the US Constitution. Very few things are, and "citizenship" is not one of them. I believe the conceptualization of American Citizenship understood by the founders was the one put forth by Vattel. One piece of evidence in support of this is the usage of the word "Citizen." The English common law term was "Subject", yet Jefferson deliberately changed the term to "Citizen" instead of saying "Subject." Not only did he change the term to "Citizen", He obliterated the word "Subject" which he had originally written on the document which actually created US Citizenship, the Declaration of Independence.

So how does this prove our citizenship is influenced by Vattel iteration of "Natural Law" rather than English Common law?

There are Several reasons, but the one I want to focus on is usage of the word "Citizen."

Searching the word in Shakespeare and Blackstone, the word is invariably used to describe members of a City. (It literally means "Inhabitants of a City." ) It is not used to describe members of a Nation. The usage of the word to describe members of a Nation was uncommon in 1776, so what Prompted Jefferson to use that word instead of "Subject" which he almost used?

Well it so happens that a widely distributed treatise on natural law happened to be making the rounds at this time.

In this work, the word "citoyen" was used invariably to describe the member of a Republic which had broken away from a monarchy, in the manner that the Swiss Republic had broken away from their monarchy.

What I am saying, is that the very usage of the word "Citizen" is evidence that Vattel's work was the one informing their intent, and not English common law.

Had we intended to follow English Common Law on subjects, we would be talking about "Subjects". That we didn't is demonstrated by the fact we are talking about "Citizens."

[Cold Heat]

To add to that, at the time the 14th was penned, it was not the federal government who decided just who and who was not a citizen. It was the States.

[DiogenesLamp]

I believe it is probably wishful thinking to believe that we can convince the court consisting of four leftists whose vote is already in the bank and two unreliable jurists that everybody's understanding of the fourteenth amendment for more than a century was wrong.

Agreed. We can't even convince them that marriage isn't "gay", so trying to convince them of anything else they do not wish to believe is an exercise in futility.

Just as the people who said that the "Defense of Marriage Act" didn't go far enough, and that a constitutional amendment was needed, were absolutely right, so too are those people who believe that nothing short of a Constitutional Amendment is going to fix this.

The Courts have literally cut themselves adrift from anything resembling reality, and they will not be constrained but through unambiguous and deliberate rebuking of their wrong opinions through the power of the electorate.

[moehoward]

"Congress has plenary power to do as it pleases concerning naturalization but no power over citizenship by birth."

First, this notion of permanent domicile relating to Ark, IIRC the parents did leave with him for China, I do not believe they returned with him. I'm not sure 'intent' to permanently domicile or 'allegiance' to the US on the part of the parents was especially demonstrated. But let's assume it was sufficiently expressed.

The Court weighed heavily on the concept of domicile, assumedly of the legal variety in the Ark decision. Since Congress has the power of naturalization, it seems odd they would not be the considered arbiters of what constitutes 'intent to domicile'. Unless there's going to be different levels of "intent" it seems reasonable that once the bar is set, it should be meet for citizenship regardless of whether it's gained by naturalization, or birth.

[Cold Heat]

The entire purpose of the 14th was to take away this citizenship power from the States and give it to the Federal government for the sole purpose of granting citizenship to freed slaves.

That’s it.....

The only way to fix this, IMO, it to shoot all the lawyers..

[tarheelswamprat]

nathan, just stopped in to check mail and the forum and found this article and post. As always, you provide relevant information and thoughtful, insightful commentary. I don’t have time right now for an in-depth reply, perhaps later this evening. However, I do wish to note that, as seemingly thorough and convincing as the author’s argument may be, he is, in fact and at best, wrong.

At worst, his argument is specious, deceptive sophistry. He proceeds from false premises:

1. The equation of “domicile” with “allegiance” is not valid. It is an arbitrary legal sophistry contrived to justify a desired political and cultural agenda.

and

2. Despite the currently fashionable PC dogma, the Fourteenth Amendment does NOT confer citizenship upon the children of illegals. As is finally being explained in the public dialogue, and as is fully illustrated in the historical record, it was intended to rectify the plight of the newly freed slaves post-Civil War - nothing more. the current incorrect use of the 14TH derives from another, 20th Century judicial sophistry, much like the false penumbras of Roe vs. Wade and the non-existent “constitutional” Separation of Church and State.

The Fourteenth Amendment has been twisted and misconstrued by enemies of the US Constitution in order to destroy it, in the same manner as the so-called General Welfare, Commerce and Treaty Clauses. Another example of this is the completely bogus doctrine of “Incorporation” of the Bill of Rights, wherein only certain Amendments are deemed “active” because they’ve been in incorporated by judges in case law, but others, e.g. the 9TH and 10TH, are mere “truisms” and no longer relevant.

It is long past time to stop the mindless, obsequious worship of Precedent and Case Law which are being used by a corrupt, entrenched legal/judicial establishment to guard their own fiefdom and thwart the original purpose and function of the Constitution as the tool of the will of the People.

[Electric Graffiti]

More support on Vattel and Natural Law.

I thought this was an interesting article:

Does the Constitution really give Congress power over immigration?

Article I, Section 8, Clause 10 of the Constitution granted power to Congress to “define and punish . . . Offences against the Law of Nations.” I decided to dig more deeply into the eighteenth century legal sources to determine whether that might include authority over immigration. Sure enough, it turns out that during the Founding Era, restrictions over immigration and emigration comprised a well-recognized branch of the “Law of Nations.” In other words, Congress’s power to “define and punish . . . Offenses against the Law of Nations” included authority to “define” immigration rules and “punish” those who violated them. An explanation appears in latest update of my book, The Original Constitution: What It Really Said and Meant .

[DiogenesLamp]

The problem is the fourteenth amendment was adopted in 1868 not in 1787. The author's thesis is to the effect that geography determines unless there is an absence of domicile. That puts us back in nearly as tight a box as the conventional reading which says that all non-diplomat, non-soldier births are citizens leaving us with only tourism babies.

I would think the words of the prime author of the 14th amendment, and his explanation as to their meaning ought to carry more weight than subsequent judicial hair splitters.

From the primary author of the 14th amendment, John Bingham.

Who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth — natural born citizens. There is no such word as white in your constitution. Citizenship, therefore does not depend upon complexion any more than it depends upon the rights of election or of office. All from other lands, who by the terms of your laws and compliance with their provisions become naturalized, and are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens.

Here is another quote from John Bingham:

...“[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ”

There are other quotes from other members of the Congress which enacted the 14th amendment which clarify their meaning as to who was intended to be covered by the 14th amendment.

[nathanbedford]

The power to tax is the power to destroy

versus

The power to tax is not the power to destroy so long as this court sits

Which side of the argument you take concerning whether Congress can define intent to domicile depends on which side you take of the slippery slope argument above. Do you say that so long as Congress can define the time needed to create intent it can do away with birth citizenship? In other words, it certainly would not be credible if Congress said the parents must be in residence fifty years before the birth to establish domicile, nature would have taken its course long before then.

On the other hand, you could say that the power of Congress to determine domicile is limited by review of the Supreme Court and as long as that court sits…

At any rate the Wong case makes it clear that the court wants to reserve unto itself ab initio the power to define domicile and hence the power to control birth citizenship. Your points in opposition to that I well taken.

[DiogenesLamp]

The American Indians were long domiciled, yet what prevented them from coming under the 14th was the fact that they refused to be under the jurisdiction of the US.

This is actually a salient point. It is unquestionable that Indians were excluded from citizenship until 1924. Most Mexican and Central and South American immigrants are actually Indians, in the meaning of the term as understood in 1868.

This demonstrates precedence in their exclusion prior to 1924, and that was only changed through an act of congress. Presumably what congress changed one way, it can change back.

Congress would never touch this for that reason because it has become too politically correct to even entertain the idea, but legally, they could.

Just classify illegals as "Indians", amend the Indian Citizenship act of 1924 to only apply to tribes recognized to be in our borders, and voila! Problem solved.

(Yes, I'm joking.)

[DiogenesLamp]

and it has been overruled in the Dred Scott decision by a civil war.

It was overruled by the passage of the 14th amendment. It was the need to overrule Dred Scott that formed much of the impetus for passing the 14th amendment.

The Civil War did not overrule that decision, it continued on afterward as before, though it was likely mostly ignored, but technically it was still valid.

The Supreme Court can reverse itself, but it didn't in the case of Dred Scott. The Constitution was amended to render the decision moot.

[DiogenesLamp]

To add to that, at the time the 14th was penned, it was not the federal government who decided just who and who was not a citizen. It was the States.

And this is where some more confusion crept in. Many states followed jus soli, and others did not. Pennsylvania, for example, made it explicitly clear that they followed natural law as related by Vattel.

[nathanbedford]

Sen. Bingham takes us to the threshold of the jump from allegiance to domicile. The author maintains that the law at the time in 1868 was that allegiance was defined by domicile.

In other words, the author has no quarrel with either you or Sen. Bingham as far as you go. Do you have a quarrel with the author at the point of the next jump thereafter?

[DiogenesLamp]

The Fourteenth Amendment has been twisted and misconstrued by enemies of the US Constitution in order to destroy it, in the same manner as the so-called General Welfare, Commerce and Treaty Clauses. Another example of this is the completely bogus doctrine of “Incorporation” of the Bill of Rights, wherein only certain Amendments are deemed “active” because they’ve been in incorporated by judges in case law, but others, e.g. the 9TH and 10TH, are mere “truisms” and no longer relevant.

Another ping to another conservative's opinion of the 14th amendment.

[wildwoodla]

Thank you!

[nathanbedford]

Please allow me a little literary license.

[DiogenesLamp]

Offenses against the Law of Nations” included authority to “define” immigration rules and “punish” those who violated them.

I would think that illegal immigration is an "offense" against the "Law of Nations" as the terms were understood in the founding era. A real problem they were having in the early 1800s was that of British Subjects claiming to be American Citizens, and involving the US Government in neutrality violations in the war between England and France.

James Madison and James Monroe were very concerned about British Subjects passing themselves off as American citizens around this time, because the French Authorities were growing suspicious of them that the US Was not actually neutral.

This problem later flipped the other way around when the British started impressing Americans into their Navy.

Anyways, Madison was well familiar with the phenomena of people claiming US Citizenship when they didn't actually have it. He was doing anything he could to stop it.

[frog in a pot]

A snap shot response:
...the conventional understanding that "subject to the jurisdiction" means obligated to obey our nation's laws.

I do not believe it is a “conventional understanding”.
Do you and I agree there is no logical basis for such an interpretation given the clear meaning and definition stated during the debates by the authors of the 14th?

If not, and apart from the legislator’s intent, such an interpretation renders the clause unnecessary and superfluous. Every single person within US boundaries regardless of their legal status, unless granted specific government immunity, is obligated to obey our nation's laws.

(This reminds one of the “blue state – red state” phenomena. Everyone in the 1950’s understood that which constituted a “red state” but the present day meaning became too pointed for some influential operators.)

But Congress may not legislate with a view to denying "domicile" in an attempt to amend the Constitution which prescribes jus soli rights of birth citizenship as a constitutional matter free of any interference by the Congress…

If you are paraphrasing the author’s argument, he overlooks two obvious points:
1. That to be entitled to the benefit of claiming domicile, it cannot have been obtained by unlawful measures.
2. This language in the 14th: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The jus soli/domicile concept was born in the 14th and the legislature reserved the right to address that concept.

[DiogenesLamp]

In other words, the author has no quarrel with either you or Sen. Bingham as far as you go. Do you have a quarrel with the author at the point of the next jump thereafter?

I'm not sure. Chief Justice of the Supreme Court John Marshall (and Member of the Virginia Ratifying legislature) also emphasizes the role of "domicile" in determining citizenship and allegiance.

"The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages."

"The domicile is the habitation fixed in any place with an intention of always staying there. A man does not, then, establish his domicile in any place unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not remove his domicile elsewhere. In this sense, he who stops, even for a long time, in a place for the management of his affairs has only a simple habitation there, but has no domicile."

A domicile, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but "an intention of always staying there." Actual residence without this intention amounts to no more than "simple habitation."

[DiogenesLamp]

My apologies. On this website it is the custom to quibble, (especially about the civil war) and I fear I have made a habit of it. Yes, it does not detract from your main point, and so I should have just let it go.