[nathanbedford]

Justin Lollman. in his note in the Virginia Law Review accepts the case against birthright citizenship by aliens made by Prof. Chapman in this article but digs deeper and extends the analysis further.

In essence, he picks up the article with the 1898 case of United States versus Wong Ark and finds that the issue of course turns on the meaning of "subject to the jurisdiction" and he looks to the case and to the legislative and constitutional history to determine that meaning. You will note that Prof. Chapman talks about the Supreme Court in the Wong case finding that the parents of the birth child in question were "domiciled" in the United States. He concludes with Chapman that jurisdiction means allegiance. Chapman creates two categories geographical and legal allegiance but also notes the influence of domicile.

Here is where Justin Lollman goes a step further than Chapman. Lollman agrees that the allegiance of the parents of the child determines jurisdiction but insists that it is the reasoning of the Supreme Court that domicile determines allegiance. Without setting forth at length the arguments in support of this proposition, I leave it to the reader to investigate as he pleases to determine whether the arguments marshaled in support of the idea that domicile determines allegiance and allegiance determines jurisdiction and jurisdiction determines citizenship, is well made in the Virginia Law Review article.

So far opponents of birth citizenship should be happy whether one accepts the Chapman version or the Justin Lollman version but now Lollman takes yet another step beyond Chapman. His analysis tells him that domicile is a question of residence plus intent but not a question of legality. Therefore, illegal aliens who set up residence with the indicia of an intent to remain in the states have established domicile and therefore their children are entitled to citizenship status. The two authors are not in conflict over this next step because they do not engage in the argument except the Chapman thinks the matter is concluded by the assertion that children of illegal aliens are excepted. Again, the reader will have to satisfy himself by resort to the Law Review article.

A good homegrown discussion can be found here

[moehoward]

The concept of 'domicile' is referenced in Plyler as well….
"entire families who have migrated illegally and -- for all practical purposes -- permanently to the United States." Id. at 578. [n3] Finally, the court noted that, under current laws and practices, "the illegal alien of today may well be the legal alien of tomorrow,"

The "legal alien of tomorrow" must be the beneficiary of some amnesty or EO, since it's doubtful there's any significant effort by the Illegal Aliens themselves to become legal.

"That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, …….. -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish."

It's quite contradictory that one could expect 'permanent' domicile while under the constant threat of expulsion. For that reason the concept of domicile while relevant in Ark (legal immigrant), seems irrelevant in Plyler (illegal).

[Carry_Okie]

I recommend that you read Chief Justice Melville Fuller's dissent in Wong Kim Ark, excerpted here.

[wildwoodla]

Excellent, thank you. I read the law review you posted and wondered what your thoughts are for the Prof. Chapman article.

I find myself beating my head against the 14th, which seems futile. It doesn’t seem right that an illegal can legally domicile in the U.S., especially if receiving the goodies (welfare) to do so. I realise right and the law are two different things. So it seems there is a path to pursue making it illegal for illegals to work, rent or purchase “domicile”, obtain driver’s license, ss#, tax refunds, etc etc.

Thank you so much for your thoughts on the two articles and responding.

[Red Steel]

from your link,

Justin Lollman - Wong Kim Ark has long been read unquestioningly as awarding citizenship to every person born in the United States, irrespective of the residency status or domicile of that person’s parents.

Not true, and we would not be having discussion if it was true. The Supreme Court has never held illegal immigrants children born in the US as citizens. And see post #55.

Justin Lollman - United States to nondomiciled, alien parents. Put differently, the Citizenship Clause only extends to persons born in the United States to parents, one of whom is either a U.S. citizen or a U.S.-domiciled alien. This reading not only finds support in the Clause’s original meaning, but also, as this Note attempts to show, was the interpretation endorsed by the Supreme Court in Wong Kim Ark.

Again not true. In Justice Grays' opinion, see post #27, he says the opposite.

[itsahoot]

Again, the reader will have to satisfy himself by resort to the Law Review article.

The reader will have to dispel any notion of common sense to believe that anyone who happens to be here illegally is entitled to birthright citizenship. Only lawyers can read "Thou Shalt not" and determine that it means sometimes is ok.