The Domicile Dead-End

Evan Bernick's third in a series of guest-blogging posts on birthright citizenship.

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Trump's anti-birthright executive order is often described as being targeted at people who enter the country unlawfully. But its scope is broader, closely tracking the anti-birthright "theory" of disgraced, disbarred, and discredited former Chapman University law professor John Eastman. Consistently with Eastman's proposals on the subject, the EO also excludes the children of immigrants who entered the country legally but are not lawful permanent residents—i.e., not green-card holders.

I've spent the last two posts critiquing Kurt Lash's shockingly weak argument that the original meaning of the Citizenship Clause excludes the children of unlawful entrants from citizenship. But not even Lash commits to defending the component of Trump's EO which excludes lawful temporary visitors. The obvious problem with this component from the standpoint of Lash's parental-loyalty-based account of birthright citizenship is that lawful temporary visitors have voluntarily submitted themselves to the sovereign power of the United States, which has authorized their presence within its borders. There's nothing "disloyal" about this that would rebut Lash's crucial presumption in favor of parental loyalty—and thus birthright citizenship.

But the Trump administration's lawyers are making arguments for exclusion, and they are citing articles which they claim to be supportive of their position. They assert the existence of a constitutional requirement that a person be "domiciled" within the United States before their children can be entitled to birthright citizenship. And they contend that neither the children of unlawful entrants nor the children of lawful temporary visitors are domiciled in the United States.

I mean to establish two propositions in this post. First, there is no domicile rule—not as a matter of original public meaning. Second, if there were a domicile rule, it would not categorically exclude the children of unlawful entrants from citizenship. To be faithful to the relevant history, any such rule would entail case-by-case subjective inquiries into the intentions of millions of parents. The EO's exclusion of the children of all unlawful entrants from citizenship could not be sustained.

No Domicile, No Problem

There's nothing in the constitutional text about domicile. Of course, there's nothing in the text about allegiance, and many (though not all—now-Judge James Ho being among the dissenters) scholars of the Citizenship Clause think that allegiance informs the meaning of "subject to the jurisdiction thereof." It's certainly possible that the framers of the latter language intended and/or members of the ratifying public understood "subject to the jurisdiction thereof" to include a requirement that the parents of birthright citizen be domiciled in the United States.

There is, however, an immediate difficulty that I've already discussed in critiquing Lash's account of allegiance. The text grants citizenship at the point of birth, and no one has adduced any persuasive evidence that parental allegiance (or lack thereof) was originally understood to determine a child's citizenship. Any required allegiance would have consisted in the child's obligation (once mature) to comply with the lawmaking, adjudicatory, and enforcement powers of the United States in the ordinary course of their affairs.

One of the striking (derogatory) features of the administration's briefs and Lash's article is selective citation. I'm thinking in particular of the citation of Mark Shawhan's 10-page student comment suggesting the possibility of a domicile requirement, based primarily on a statement made by Senator Lyman Trumbull about the Civil Rights Act of 1866. Speaking of that statute—a precursor to the Citizenship Clause—Trumbull claimed that a guarantee that "[a]ll persons born or naturalized in the United States, and subject to no foreign power, excluding Indians not taxed" declared the citizenship of "'all persons' born of parents domiciled in the United States." Of course, the Citizenship Clause substituted "subject to the jurisdiction thereof" for "subject to no foreign power, excluding Indians not taxed." But Shawhan proceeds on the assumption that Congress in framing the Citizenship Clause "understood that language to be more precisely describing, not substantively altering" the CRA's set of exclusions from birthright citizenship. And if that's right, parental domicile might determine access to birthright citizenship.

This was not, however, Shawhan's last word on the subject. Several years later, in a full-fledged journal article (uncited by either the administration or Lash), he provided an account of the original public meaning of the Citizenship Clause which lacked any domicile requirement. This article mentions domicile twice, once in a footnote which references his student comment. The reason for the lack of emphasis is simple: Trumbull's statement appeared in a private letter to President Andrew Johnson, the content of which never seems to have surfaced elsewhere. It's not the stuff of public meaning, because the public never saw it!

Indeed, it would have been impossible for Trumbull to insist—as he did—during the framing of the Citizenship Clause that the children of Chinese nationals would be citizens at birth and be understood to be suggesting a domicile requirement. The senators involved in the widely publicized exchange which inspired Trumbull to state that these children would "undoubtedly" be citizens knew well that Chinese nationals often had no intentions to permanently reside in the United States. Outside of scattered remarks best interpreted as references to an uncontroversial exception for the children of diplomats, the closest thing to a public endorsement of a domicile requirement is Ohio Representative John Bingham's assertion that "[a]ll free persons born and domiciled within the jurisdiction of the United States, are citizens of the United States from birth." It suffices to say that this statement was made eleven years before the framing of the Fourteenth Amendment and that Bingham never specified his belief that domicile was a condition of citizenship, either at the time or during discussions of the 1866 CRA or the Citizenship Clause.

Anti-birthrighters have seized on Justice Joseph Story's suggestion in his 1839 Commentaries on the Conflict of Laws that birthright citizenship "should not apply to the children of parents, who were …. who were abiding there for temporary purposes, as for health, or curiosity, or occasional business." But Story was not describing existing law; he was recommending a change in it. He acknowledged that this requirement was not "universally established" across the nations that he was surveying, and did not suggest that it was the general rule in the United States. In Lynch v. Clarke (1844), the only antebellum case adjudicating the citizenship of a child of temporary visitors, Vice-Chancellor Sandford of the New York Court of Chancery determined that it was not, writing that "[t]he rule contended for [by Story] is one confined to countries which derived their jurisprudence from the civil law." He held in favor of citizenship.

It's been claimed that people who voluntarily enter the country unlawfully cannot be domiciled because domicile requires legal residence. But Amanda Frost has shown how Republican commitments to birthright citizenship were shaped by the abolitionist push to establish birthright freedom. Birthright freedom meant that the children of enslaved people who unlawfully crossed borders into free states were entitled to freedom, even though their parents could be removed and re-enslaved. Any domicile requirement that conditioned birthright citizenship on lawful entry into a jurisdiction would be directly contrary to the basic premise of birthright freedom: the status of children in a jurisdiction where they are born does not turn upon whether their parents arrived in that jurisdiction legally.

Most importantly, any domicile requirement would leave us with a Citizenship Clause that is incapable of performing a very basic and uncontroversial function: that of nullifying Dred Scott. The Fourteenth Amendment makes birthright citizens of the children of formerly enslaved people. And yet it would be outrageous to suggest that enslaved people who were kidnapped and forced into the country illegally were "domiciled" in the United States.

Think about it. As Shawhan explains, in antebellum law U.S. domicile required "U.S. residence and the intention that it be permanent." Enslaved people imported into the country as property obviously had no desire to reside in the United States, much less do so permanently. It's unfathomable that anyone could have understood the Citizenship Clause to impose a requirement that would deny birthright citizenship to its primary beneficiaries.

If Domicile, Then Problems

Suppose, counterfactually, that there exists a domicile requirement. Here again, the authorities upon which anti-birthrighters rely embarrass them. If the Citizenship Clause were to confer birthright citizenship only upon those lawfully domiciled in the United State, the EO would still be unconstitutional. Further, ascertaining the birthright citizenship of millions of children would be a logistical nightmare—perhaps even by anti-birthright lights.

Several anti-birthrighters have suggested that the foundational birthright citizenship precedent, United States v. Wong Kim Ark (1898), need not be overruled to exclude the children of unlawful entrants from citizenship. They point out that the Court mentioned several times that Wong Kim Ark's parents were "domiciled" in the United States. A couple of them have urged that the Court answered only the question whether children born to lawful permanent residents were birthright citizens.

One might as well observe that the Court mentioned several times that Wong Kim Ark's parents were Chinese nationals and contend that the Court answered only the question whether children born to Chinese nationals were birthright citizens. The concept "lawful permanent resident" didn't exist in 1898, and the Court made plain that its decision turned on an understanding of English common law that drew no such distinctions. And as Margaret Stock and Nahal Kazemi detail in a devastating critique of Eastman that was published in his "home" law review, domicile in the nineteenth century just wasn't the same thing as lawful permanent residence in 2025.

Let's look again at anti-birthrighters' favorite antebellum treatise, Justice Story's Commentaries on the Conflict of Laws. Story's defined "domicile" as a place "in which [a person's] habitation is fixed without any present intention of removing therefrom." If domicile required only fixed habitation and intention to remain, there is no basis for deriving from references to Wong Kim Ark's parents being "domiciled" a limitation on the Court's holding to green-card holders.

Indeed, although the administration cites Shawhan's 10-page domicile comment (as distinguished, again, from his 40-page originalist article rejecting any domicile requirement) Shawhan positioned the comment as a refutation of anti-birthrighters who reject citizenship for the children of unlawful entrants. Shawhan's specific targets included "consensualists" like Eastman, for whom "subject to the jurisdiction thereof" requires mutual consent on the part of the parents of the would-be citizen and the political community—on the part of the parent, to exclusive loyalty to the United States; on the part of the political community, to the parent's status and presence. Shawhan could scarcely have been more explicit that no such consent was necessary for domicile: "[A]s of 1866, the requirements for domicile were solely residence and the intention that it be permanent. Domicile was neither mediated nor restricted by state or federal law and could arise irrespective of governmental consent."

Countless people who enter the country unlawfully do so because they want to stay. The possibility of deportation does not change that; to think otherwise is to mistake motivation for expectation. Only motivation—the desire to remain in a place—matters for domicile. The mind reels at the logistical difficulties entailed in trying to determine whether any given unlawful entrant both resides and desires to remain in the United States. But that is exactly what would be required to ascertain the citizenship of millions of children, were we to read a domicile requirement into the Citizenship Clause with minimal fidelity to the relevant history. Why would anyone want to do that?

Fortunately, we need not and indeed cannot do it, consistently with the original public meaning of the constitutional text. Like so many other suggestions from anti-birthrighters, the domicile requirement is unwelcome. It should not inhabit our constitutional law, even temporarily.