Posted on 08/21/2015 8:22:45 AM PDT by 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.
(Excerpt) Read more at virginialawreview.org ...
If you are paraphrasing the authors 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.
My friend, I am bound to say I think you are inaccurate not in your sentiments but in your assessment of the author’s position.
1. The other is explicit in believing that domicile is not dependent at all on being legally acquired.
2. The power of Congress to enforce the provisions of the fourteenth amendment have to do with compelling states not with definitional terms.in other words, Congress has the power to enforce the fourteenth amendment but not to amend it.
The author makes clear that there were cases based on the jus soli/domicile concept before 1868.
I'm not at all sure it would rank all that highly among the most absurd laws passed. 5 years is on the books, I say we run with that. In as much as the notion of domicile seems to be a creation of The Court, it's not surprising they'd assume they should be able to define it as well. Fortunately, as Levin points out, that power rests firmly in the Congressional domain.
“as Levin points out, that power rests firmly in the Congressional domain.”
For the reasons set forth on page 498 and repeated below, I think Levin is wrong. I think the scholarship in this article is compelling, the fourteenth amendment puts birthright citizenship “beyond the legislative power”:
“Third, and most importantly, this argument fails because it gives
Congress the power to limit the scope of the Citizenship Clause. As proposed
by the Thirty-Ninth Congress, the Citizenship Clause was meant
to put th[e] question of citizenship . . . under the civil rights bill beyond
the legislative power.242 The Supreme Court has consistently held to
this principle, denying Congress any authority to cut down on the Citizenship
Clauses grant of birthright citizenship. In Wong Kim Ark, for
example, the Court rejected the governments argument that Congress,
acting pursuant to its naturalization power, could deny birthright citizen-
ship to the U.S.-born children of Chinese immigrants.243 Though the
Court recognized Congresss inherent and inalienable right to exclude
or to expel all aliens,244 it flatly rejected the idea that this, or any
other, power could be used to restrict the effect of birth, or otherwise
abridge the rights conferred by the Constitution.245 The Court reaffirmed
this principle in Afroyim v. Rusk, noting that Congress c[an]not
do anything to abridge or affect . . . citizenship conferred by the Fourteenth
Amendment.246 Thus, even if Congress can restrict an alien entrants
legal capacity to establish U.S. domicile for state law purposes
(as was the issue in Elkins),247 it cannot do so for purposes of the Citizenship
Clause. To allow otherwise would effectively give Congress authority
to deny birthright citizenship to any person born of alien parents.
Such a result not only conflicts with the Courts opinion in Wong Kim
Ark, it goes against the very purpose of having a constitutional rule of
birthright citizenship in the first place, namely, to put the issue beyond
the legislative power.248”
1. (other = author ?) Such a belief by the author emasculates the law and allows the actor to benefit from his ill gotten gain.
2. Congress can effectively enforce the 14th on this issue as it is written without amending it (only the USSC can do that /snort). So it appears a new congress can proceed "appropriately" or a new administration can simply adopt a policy consistent with the plain meaning of 14th's language (and let someone else bring the case).
You are correct, there were jus soli/domicile cases prior to 1868 but as I recall they did not involve illegal aliens.
Have a nice weekend!
Unless I missed something what Levin said was essentially the 14th denied citizenship to those that fall into several categories, one of which is Illegals. And that Congress is empowered with the authority of naturalization. He referenced Senator Howard’s famous qualifiers which supports the position thoroughly.
But here’s the bottom line, in the end Congress does decide who gets birthright citizenship by simply deciding who legally gets in. Intent to domicile would end up being a useful stop gap triage scheme until the border was secure and our authorities demonstrated a clear intent to enforce the law.
I think he makes a decent case that WKA doesn't preclude an argument that domicile is also a requirement (in addition to birth and jurisdiction). I think the likelihood of this argument prevailing, however, is small.
I can just hear Scalia saying, "Wait a minute, the amendment defines exactly two requirements for citizenship and now you want us, un-elected judges, to add a third, domicile?"
Also, I think the author's exploration of the prominence of domicile in citizenship law cuts both ways. Clearly domicile was a top-of-mind issue at the time yet the authors and ratifiers chose not to include it.
Finally, the author states:
As conventionally understood, the jurisdictional element excludes only three categories of individuals: (1) children of ambassadors or other foreign diplomatic representatives, (2) children of foreign invading armies, and (3) children of members of Indian tribes. Notably, each of these categories of excluded persons is defined based on some characteristic of their parentage.
That's just wrong. We know nothing about the parentage of invading soldiers. What the three categories do have in common is that our interaction with them at the time was governed by mutually-agreed treaty or laws of war, not US laws.
The issue is not whether the individual in fact owes his loyalty to the United States but whether it can be assumed from the facts and circumstances of his presence. Now the author makes the jump to the idea of domicile which, of course, he claims was the common understanding at the time and not his own idea, the importance of which is that when domicile is established that conclusively proves allegiance (to whom does the individual owe his loyalty?) and therefore jurisdiction. In determining domicile, the facts of the individual' s actual residence and his intent (that is his intent to remain here and establish connections not the legality of his intent) are very relevant.
In other words when your legislators utter the word "jurisdiction" in this context they actually mean allegiance which is determined by domicile.
Therefore, they meant to exclude Indians, diplomats, and foreign soldiers and said so not by enumerating them but by using the word, "jurisdiction." Now in 1868 as a matter of law, allegiance was determined by domicile and therefore jurisdiction was determined by domicile and that is the meaning of the fourteenth amendment. Indians, diplomats and foreign soldiers were not regarded to be domiciled in the United States that is residing there with an intent to stay so were not under American jurisdiction.
If that's what the fourteenth amendment means, Congress cannot alter its terms by redefining domicile anymore then they can alter its terms by declaring the children of ex-slaves to be excluded from citizenship.
I quite agree with you about your very practical assessment of what the Supreme Court is likely to do. The votes of the four left-wing justices are as good as in the bank even before certiorari is granted, God knows what Roberts and Kennedy will do (although Kennedy is almost certain to cast a vote which supports minorities) and Antonin Scalia is likely to pay serious heed to this author's scholarship as it establishes some understanding of original intent.
I can't buy his allegiance-as-jurisdiction argument when, as Yoo pointed out in the NR piece, there's this contemporaneous use of 'jurisdiction' in the 13th:
"Neither slavery nor involuntary servitude...shall exist within the United States, or any place subject to their jurisdiction."
I just don't see how you can read allegiance into that context. It really isn't up to the individual to accept the ban on slavery - it's the government's choice.
later
Thank you for this article and one of the best threads on the subject I have read on FR.
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