The Significance of Parental Domicile Under the Citizenship Clause

In Southern California, the lure of U.S. citizenship has given rise to a cottage industry of “birth tourism”—maternity hotels and travel agencies catering to foreign parents seeking U.S. citizenship for their soon-to-be-born children. Under the United States’s system of jus soli citizenship, birth within the territory automatically confers U.S. citizenship. Thus, with just a passport and tourist visa, foreign expectant-parents can effectively purchase U.S. citizenship for their future child.

This outcome is said to be the result of the Citizenship Clause of the Fourteenth Amendment, in particular, the Citizenship Clause as interpreted by the U.S. Supreme Court in United States v. Wong Kim Ark. To treat Wong Kim Ark as requiring this result, however, overlooks an important aspect of the Court’s opinion: Wong Kim Ark was born in the United States to parents domiciled in the United States. According to the Court, the question presented in Wong Kim Ark was “whether a child born in the United States, of [noncitizen] parents of Chinese descent, who at the time of his birth . . . have a permanent domicil and residence in the United States . . . becomes at the time of his birth a citizen of the United States.” Throughout its opinion, the Court repeatedly referenced the domicile of Wong Kim Ark’s parents, including, most notably, in its holding. Nevertheless, despite the Court’s reference to this potential limiting factor, Wong Kim Ark has long been read unquestioningly as awarding citizenship to every person born in the United States, irrespective of the residency status or domicile of that person’s parents. This interpretation of the Citizenship Clause not only glosses over crucial language in the Court’s opinion, but also entirely overlooks the significance traditionally ascribed to parental domicile in citizenship law and theory. This Note argues that the Citizenship Clause is open to a narrower interpretation, one that does not bestow citizenship on persons born in the United States to nondomiciled, alien parents. Put differently, the Citizenship Clause only extends to persons born in the United States to parents, one of whom is either a U.S. citizen or a U.S.-domiciled alien. This reading not only finds support in the Clause’s original meaning, but also, as this Note attempts to show, was the interpretation endorsed by the Supreme Court in Wong Kim Ark.

This Note proceeds in five parts. Part I outlines the basic structure and principles of the Citizenship Clause. This background information is crucial to understanding how a parental domicile requirement fits within the Supreme Court’s established Citizenship Clause jurisprudence. This Part also discusses the way in which modern courts, commentators, and government agencies often entirely overlook the potential for a narrower, domicile-based interpretation of the Citizenship Clause.

Part II analyzes the Supreme Court’s decision in Wong Kim Ark. Decided in 1898, Wong Kim Ark was, and remains today, the seminal case construing the Citizenship Clause of the Fourteenth Amendment. This Part lays out the argument for a narrower reading of the Court’s opinion premised on the requirement of parental domicile.

Part III discusses the significance traditionally ascribed to parental domicile in citizenship law and theory. As this Part shows, the idea of conditioning birthright citizenship on parental domicile is nothing new. This Part reviews various historical authorities and precedents in order to show that the parental domicile requirement: (1) has a strong basis in the original meaning of the Citizenship Clause and (2) was a well-known and respected interpretation of the Citizenship Clause at the time of Wong Kim Ark.

Part IV evaluates the advantages of a parental domicile requirement from a policy perspective. Sound citizenship policy generally seeks, as nearly as possible, to align citizenship status with residency or social ties. Measured against this touchstone, an automatic rule of birthright citizenship is highly overinclusive. In today’s mobile world, place of birth is an increasingly ill-suited metric for predicting whether a person will reside in or develop ties to a political society. As this Part argues, a parental domicile requirement offers a rough-and-ready means of limiting much of that overinclusiveness.

Part V concludes by discussing two important policy implications of this rule. First, this Part evaluates whether a parental domicile requirement would operate to exclude children born of illegal immigrants. Though advocates of restrictive immigration policies would likely try to use the requirement for such purposes, this Note argues that illegal immigrants are fully capable of establishing domicile sufficient to satisfy the Citizenship Clause. Second, this Part offers some preliminary suggestions as to how this requirement could be fairly and efficiently administered.

In addressing these issues, this Note seeks to fill a significant gap in the legal literature. To date, little scholarly attention has been paid to whether the Citizenship Clause, as interpreted in Wong Kim Ark, requires a showing of parental domicile. What is more, no scholar has ever actually analyzed, in any systematic way, how such a requirement would apply to the U.S.-born children of illegal immigrants. The requirement for which this Note argues is unique in two main respects. First, it works within the confines of the Constitution and existing precedent; that is, it requires neither a constitutional amendment, nor a significant rewriting of existing case law. Second, this requirement charts what is in many respects a middle course in the modern debate over birthright citizenship; namely, it allows for a more restrictive, less arbitrary form of birthright citizenship without touching the hot-button issue of illegal immigration.