All newborn people in the United States who are subject to U.S. jurisdiction are citizens of the state where they are domiciled. That principle is implied by the Citizenship Clause, as understood in the 1860s, and is supported by contemporaneous sources, including the ones cited by Justice Thomas this week. I am not aware that my friend Michael Ramsey disagrees with that principle I just stated, we just disagree about what that principle means. Of course, for people who cannot get U.S. citizenship via the Citizenship Clause, various other avenues are available, including naturalization by statute, by treaty stipulations, and by customs or common law that existed prior to 1868 without subsequent alteration.
For me, the result of Trump v. Barbara was disappointing, not least because here the text and the principle seem relatively clear, whereas interpreting other parts of the Fourteenth Amendment is more difficult. But I am encouraged that the Court came close to getting it right, and am optimistic that they will do so sooner or later. For example, perhaps Justice Kavanaugh will be persuaded by the other justices that it is now settled whether the Immigration and Nationality Act offers any distinct definition for the key constitutional phrase “subject to the jurisdiction,” and will therefore fully join with the originalist holding. And perhaps Justice Alito will be persuaded not to try narrowing the accepted scope of the Wong Kim Ark case; after all, the exceptions for diplomats and for the unassimilated tribes are entirely explicable by the domicile interpretation championed by Justice Thomas. In other words, foreign diplomats have no U.S. domicile because they have no intention of remaining permanently, and unassimilated tribes who inhabited U.S. territories were excluded from the Citizenship Clause because (as courts have often correctly held) a territory is not covered by the Citizenship Clause. I might add that the domicile interpretation also does take into account allegiance, since it was well accepted in the 1860s that a person who has domicile consequently has allegiance, so a person who is ineligible for any allegiance is necessarily ineligible for domicile. There is plenty of common ground between the Thomas and Alito opinions, and I hope Justice Alito will move toward Justice Thomas’s position. Justices Barrett and Roberts can hardly be blamed for allying with the three liberal justices while the conservatives are still developing a more unified position.
I was a little bit surprised that Justice Gorsuch asked this question in his opinion concurring with Justice Thomas: “If … parents are not domiciled here, then where are they domiciled?“ The answer is clear; it’s always been well-established that, as Phillimore wrote, “the former Domicil is not abandoned until a new one has been intentionally and actually (animo et facto) acquired.” If a parent hasn’t established domicile in the U.S. then their domicile is in the country of origin.
Finally, I will share a couple wise comments I noticed on Twitter (X) prior to the decision in this case, that are exceptionally clear and concise. From Ohio lawyer Pete Patterson on April 9:
A lingering thought on the birthright citizenship argument: there was much discussion about practical complications with a domicile requirement. But I believe there is general agreement that domicile is required for state citizenship under the clause. So, regardless of how the clause is interpreted for national citizenship, any practical complications relating to domicile will still be present for determining state citizenship. And that would seem to defeat any inference that the text should be interpreted to avoid those complications, as the framers and ratifiers were not intent on avoiding them.
And, finally, from Professor Richard Samuelson on March 30:
Strange how few simply read the 1st sentence of the 14th A all the way through as a logical sentence. Strictly speaking a sentence ending “and of the state wherein they reside” is only about people so included.
I also agree with Professor Jonathan Adler’s conclusion after the Barbara decision that The Birthright Citizenship Decision Will Not End the Birthright Citizenship Debate. Nor should it.
Posted at 8:24 AM