A serious misunderstanding about the meaning of the word “domicile” is making the rounds, and it’s worth sorting out. A few months ago, Evan Bernick wrote about this subject in a blog post at the Volokh Conspiracy, asserting that enslaved people lacked U.S. domicile and therefore — if the Citizenship Clause of the 14th Amendment has an implied domicile requirement — the Citizenship Clause would not serve its basic task of conferring citizenship on people who had been born into slavery. Professor Bernick wrote:
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.
Actually, it was well-understood in the mid-nineteenth century that people born into slavery in the USA did indeed have domicile in the USA. This was a basic principle of international law, described for example by the British scholar Robert Phillimore in 1847 and again in 1861: “The slave of course have no domicil but that of his master….” Likewise, an 1858 American treatise on slavery by Thomas Cobb stated:
A preliminary question arises as to what constitutes the domicile of a slave. We have seen that, as a general rule, it is that of the master. And this not being of choice of the slave, but by operation of law (necessarium), by no act of his can it be changed.
As indicated above, Bernick relied upon an article by Mark Shawhan, which asserted as a general principle that the word “domicile” always refers to a residence chosen by a person regardless of any laws or any government. But Shawhan was incorrect. One need only look at the leading American law dictionary of the 1860s (by Bouvier) to see that there was more than one kind of domicile: “There are three kinds of domicils, namely: 1. The domicil of origin. domicilium originis vel naturale. 2. The domicil by operation of law, or necessary domicil. 3. Domicil of choice.” Bouvier elaborated:
There are two classes of persons who acquire domicil by operation of law. 1st. Those who are under the control of another, and to whom the law gives the domicil of another. Among these are, 1. The wife. 2. The minor. 3. The lunatic, &c. 2d. Those on whom the state affixes a domicil. Among this class are found, 1. The officer. 2. The prisoner, &c.
Shawhan incorrectly wrote that, “as 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.” Shawhan explained where he got this (wrong) idea:
Only two prerequisites must be satisfied, Story said, for domicile to exist: “residence; and…intention of making it the home…to which whenever he is absent, he has the intention of returning”….He makes no reference to governmental consent to or authority over domicile….
So this brings us to Joseph Story. What did Story really say about this subject? Story wrote, “[D]omicil is of three sorts; domicil by birth; domicil by choice, and domicil by operation of law.” Just as Bouvier would later write. The subject of domicile by operation of law (also called “necessary domicile”) is extensive, and the most thorough treatment from the Civil War era, as far as I know, is to be found in the 1861 treatise already mentioned, by Phillimore, which goes for about 80 pages!
UPDATE: Evan Bernick responds:
Posted at 6:27 AM