The significance of domicile in Lyman Trumbull's conception of citizenship.

• Author: Shawhan, Mark
• Position: Senator Lyman Trumbull

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." In recent years, as intense disagreement over U.S. immigration policy has grown, so too has academic and popular debate over the scope of this "subject to the jurisdiction" exception. In particular, a number of revisionist scholars have challenged the orthodox, "territorial" view that birth within the United States alone is sufficient to create citizenship except in certain extremely rare and narrow circumstances. (1) They argue that in addition to 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. This position has underlain conservative grassroots activism and multiple bills aimed at narrowing birthright citizenship by statute.

The debate, however, has overlooked a significant piece of historical evidence. The 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. Revisionist consensualist scholars have frequently cited Trumbull's public statements as significant evidence in favor of their interpretation of the Citizenship Clause. Yet this previously unanalyzed letter shows that consensualist reliance on Senator Trumbull in fact runs contrary to his actual position on citizenship.

My analysis proceeds in three parts. Part I describes the evidence that Senator Trumbull saw domicile as a determinant of birthright citizenship and explains the doctrine of domicile as it then existed. Part II lays out the consent-based interpretation of citizenship. Part III demonstrates how domicile is consistent with a modified territorial interpretation of the Citizenship Clause, rather than the consensualist view discussed in Part II.

1. "DOMICILE" AND ITS MEANING

   The Fourteenth Amendment states that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." (2) Congress intended this text, similar in form to the citizenship clause of the Civil Rights Act of 1866, (3) to entrench the effect of that provision. (4) Congress drafted and passed the Act over President Johnson's veto while the House of Representatives was considering the Amendment; scholars frequently study the Act's citizenship language as a guide to that of the Amendment. (5)

   While the Act was before Congress, Senator Lyman Trumbull, who wrote its citizenship language (6) and managed the Act in the Senate, wrote a letter to President Andrew Johnson summarizing the bill. (7) The letter begins: "The Bill declares 'all persons' born of parents domiciled in the United States, except untaxed Indians, to be citizens of the United States." (8) Trumbull thus understood the Act's "not subject to any foreign Power" requirement as equivalent to "child of parents domiciled in the United States." (9) The Fourteenth Amendment instead requires individuals to instead be "subject to the jurisdiction," which is slightly different wording. However, members of Congress understood that language to be more precisely describing, not substantively altering, the set of individuals excluded from birthright citizenship by the Civil Rights Act. (10) Trumbull did not address the issue expressly in congressional debate, but it appears logical to conclude that he intended to link "subject to the jurisdiction" to domicile as well. (11)

   In making this connection, Trumbull drew on settled legal understandings. 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. (12) In Justice Story's words, domicile is "where [a person] has his true, fixed, permanent home ... to which, whenever he is absent, he has the intention of returning"; it is "that place ... in which [a person's] habitation is fixed, without any present intention of moving therefrom." (13) Only two prerequisites must be satisfied, Story said, for domicile to exist: "residence; and ... intention of making it the home of the [person]"; (14) he makes no reference to governmental consent to or authority over domicile. Story's view of domicile was subsequently endorsed by the U.S. Supreme Court, (15) federal circuit courts, (16) and state courts. (17)

   Several general principles follow from pre-1866 domicile opinions. 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. (18) 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. (19) Domicile and citizenship were thus distinct from one another, (20) and acquiring the former in a new country did not alter the latter.

   To examine whether individuals had acquired domicile, courts conducted a context-dependent, subjective inquiry into the extent of any evidence demonstrating the fact and intention of their permanent residence. (21) They did not require a minimum period of residence. (22) Indeed, if the evidence of a person's intent to...