Monday, May 17, 2010

The Significance of Domicile in Interprating Birth Right Citizenship

The Citizenship Clause of the Fourteenth Amendment establishes citizenship as a birthright for all children born in the United States, so long as they are “subject to the jurisdiction thereof.” Territorial birth, “subject to the jurisdiction” requires a mutual consensual relationship between individuals and the U.S. political community; children of undocumented immigrants, lacking such a relationship, are thus putatively precluded from constitutional birthright citizenship.

The 14th Amendment’s Citizenship Clause draws heavily on the text of a similar citizenship provision in the Civil Rights Act of 1866, written by Senator Lyman Trumbull. In a letter to President Andrew Johnson summarizing the draft Act, Trumbull said that birthright citizenship depended on whether the parents of children born in the United States were living permanently, “domiciled,” here.

Domicile had an unambiguous definition in 1866: one acquired domicile in a nation or a particular place by moving there with the intention of making it one’s permanent residence. Only two prerequisites must be satisfied for domicile to exist: “residence; and . . . intention of making it the home of the [person]”.

A person could change domicile by leaving one jurisdiction and settling in another, regardless of whether those jurisdictions were states within a country or separate nations. In certain international contexts (such as neutrality agreements), acquiring domicile resulted in “a national character [being] impressed upon a person, different from that which permanent allegiance gives him”; such a person, though, could easily choose to cast off that “national character” by returning to his or her native country. Domicile and citizenship were thus distinct from one another, and acquiring the former in a new country did not alter the latter.
Now let's discuss allegiance, the “complete, political jurisdiction” over an individual that flows from the individual’s “allegiance to the sovereign.” Allegiance involves renouncing their previous allegiance, or at least formally demonstrating “commitment” to the United States by obtaining permanent resident status and assuming the “contributive responsibilities” of citizens. Further, affiliation must be met with the “reciprocal consent . . . of the nation to [the individual’s] membership.”

Taking domicile to be the birthright citizenship standard may just limit bestowed citizenship upon birth much better than the allegiance argument as used today to interpret the 14th Amendment. First, children born within the territorial boundaries of the United States are U.S. citizens (or not) based on their parents’ domicile, not citizenship or political status. Using domicile as the benchmark also contradicts today's argument that “subject to the jurisdiction” refers not to universally applicable territorial jurisdiction, but a narrower, “political” type. To gain domicile in 1868, one had only to have lived within the territory and planned to permanently remain; one did not need to first transfer one’s sovereign allegiance. Any new “national character” that one took on through acquiring domicile in a new country was merely “adventitious,” and could “be thrown off at pleasure” by leaving the country without intent to return. This is not exactly lasting political affiliation or allegiance.

If domicile is the appropriate standard, individuals born here and subject to our laws would not be “subject to the jurisdiction” for citizenship purposes if their parents were here only temporarily. Using domicile in this way is thus more restrictive than the pure territorial approach: it requires parents to have some meaningful ties to the country in which they are living for children born there to be citizens.
Domicile requires individuals to integrate themselves into a nation’s social fabric through residence such that they consider it their home and have no plans to leave. Beyond residence, it requires that an individual seek, and the country accept, affiliation between the individual and the government of the country. Thus, those here on non-immigrant visas should not have bestowed upon their children born within the boundaries of the United States of America, birthright citizenship, as they themselves are not intending to permanently reside or be domiciled within the USA, and they do not intend to give their "allegiance" to the US Constitution. This should also deny children born to illegal immigration entry violators, birthright citizenship.


Alie said...

You seem to have some good, sound logic behind your reasoning.

I really do not see the benefits to this nation to continuing to offer automatic birthright citizenship to children of those who have come here illegally. It allows for too much abuse of our nation in more ways than one, but the most obvious is the abuse of social benefits as illegals can then claim benefits in the name of their U.S. born citizen children.

From what I understand, the 14th amendment was instituted after the Civil War to ensure that newly freed slaves and the children of slaves would not be denied citizenship. This is obviously not a consideration any longer.

ultima said...

This is a great post, Liquid. I wonder how we could find out who has the standing to bring this matter before the Supreme Court.

Liquidmicro said...

California has been attempting to get a law on the books (an initiative) to issue to foreign parents a simple certificate of birth marked with the wording of "Foreign Parents" and the record would be sent to DHS. If all the States would do something similar, I think it would force SCOTUS to look at and instruct with opinion the meaning of the 14th Amendment.