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A few weeks ago, Trump signed an executive order attempting to end birthright citizenship; it is currently working its way through the courts. Some users here claimed that the 14th amendment "obviously" implies birthright citizenship. I disagree, but wanted to take the time for a long from explanation. First, the relevant text:
The question, now, is who is subject to jurisdiction. It cant just be everyone, because then why would they write it, and besides there are known exceptions made on this basis, notably foreign diplomats, invading armies, and (formerly) indians. Of these, I want to look at invading armies in particular. Why are they not subject to jurisdiction?
The common answer seems to be that, since they control the territory, they have the jurisdiction rather than the US. But does the US accept that it doesnt have jurisdiction? No. After the invader is expelled, they likely have the right collect the outstanding tax from the time they were unable to collect. Crimes under US law that occured during that time can also be prosecuted (though it may be an extenuating circumstance where relevant).
Now, you might try to solve this by requiring defacto jurisdiction. The problem is that you then have to explain how the defacto failure to immediately reoccupy territory is different from the defacto failure to immediately apprehend any criminal whatsoever. This sounds quite weird and not like something they would have meant, and also every illegal immigrant is a fugitive criminal, because he violates immigration law. And it also seems that the invasion exception applies to the invaders, rather than every non-citizen in the territory.
A more promising approach might be to notice that the way the government treats illegal immigrants is a lot like how it treats enemy soldiers: Where safely possible, they are caught alive. They can then be prosecuted for any crimes committed in the US (unless responsibility goes up the command chain), and are eventually sent back home (when there is no danger that this will help the enemy anymore). This suggests that jurisdiction applies to them in a similar way, and reasoning for an exemption is likely to transfer. Indeed, one of the simplest descriptions of an invasion is "People coming into the country that the government doesnt want to". Subjecting people to jurisdiction requires activity of the government, and it seems quite sensible that someone refused entry is also refused jurisdiction. I think thats more plausible than such a refusal requiring jurisdiction, but even if you disagree, its at least a binary choice rather than having to find some complicated new distinction.
Is this a motivated reading? While it has some complexity to it, I dont see a way to accommodate the invasion exception without that. I think this is the most plausible way to resolve that. A reading which doesnt make the invasion exception may also be reasonable, depending on judicial philosophy, but if thats what the people calling it "obvious" meant, they should indicate that theyre defending something other than the status quo. In conclusion, I think children of illegal immigrants do not necessarily have citizenship, those of temporary residents (also targeted in the EO) do.
...is what I would have written, if I didnt remember that the US actually claims universal jurisdiction for some of its laws. This doesnt make everyone a US citizen, because there is the territory requirement in the text, but it potentially outflanks the exceptions, and under my above reading all of them would be invalid. Admittedly I dont think SCOTUS will take this line seriously - theyre too practical for that, and if they just really want to keep children of illegals theres plenty of bad arguments to use that sound more normal. And actually, theres a wrinkle in the wrinkle, because one of the laws with universal jurisdiction was passed before the 14th ammendment, and so actually maybe you should make the traditional exceptions work even under universal jurisdiction (depending on judicial philosophy). I think the universal reading of that law is bullshit, but it has precedent.
EDIT: Since noone seems to take into account the last paragraph: My final conclusion is that all the exceptions are gone.
You and @Gillitrut and whoever else can go on with comparisons, analogies, and philosophical lucrubations involving the meaning of "under the jurisdiction thereof", but a close reading of Wong Kim Ark makes it crystal clear that there is no universe where this is necessary. When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves. That's it. You don't get to add to the list. The opinion makes it clear that the goal of the amendment was to confirm that freed slaves were citizens. Hence, all persons means all persons. The jurisdiction clause was only put in because the government had already recognized certain exemptions prior to the amendment's passing: Diplomats and invading armies were already excepted under common law, and uncivilized Indians were exempted based on their peculiar status in the United States.
This wouldn't be so infuriating if conservatives hadn't spent the past several decades advocating for the kind of minimalist judicial standards that we see in Wong Kim Ark. There's no equivocation, no balancing test, no attempts to shoehorn contemporary ideas into archaic concepts by broadening their scope, just clear, bright-line rules. The fact that we've since restricted immigration to the point that there are 500 different kinds of visas and some aliens who can travel without visas and a whole underclass of illegals below that doesn't change what the 14th Amendment says. It's the same logic as in Bruen, just because the world has changed doesn't mean we change the meaning of the law along with it. And that argument is much stronger here; states had been restricting firearms since the 1800s, but our definition of a natural born citizen has remained consistent until this past month.
For what very little it is worth, especially coming from an unqualified outsider, I agree with you here. It really does seem very straightforward, and the counterarguments appear a lot like motivated reasoning.
Which isn't to say that this law is good or that it should remain unchanged.
I think it seems that way to you because youre not an autistically-literal person by disposition. If you think "I know it when I see it" is a workable legal standard for constitutional rights, then the status quo is fine.
First time I have that said about me; usually it's the opposite. The problem may be that I'm not a native speaker and especially not fluent in legalese.
Well, weve had normie-ish conservatives before, and you described yourself as a low-openness rural dweller. I dont think my argument takes a lot of language. Its basically: How do you legally distinguish between an invasion and illegal immigration? Theres a continuum there, and some cases relatively far down that continuum, like primitive raiding, would be considered an invasion. See my discussion with Gillitrut for some hammering-out. Obviously today, these seem like distinct things, and saying illegal immigration is like an invasion is a controversial political point, but in a time before any immigration was illegal, is it really so implausible that they would address invasions in a way that includes that?
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It really, really doesn't.
Let's take a look at the text. The Court actually helpfully asks whether there are other exceptions. They cite The Schooner Exchange v. M’Faddon:
Yes, there are indicia in the opinion that go the other way, too. But it's definitely a not clear and complete bright line. What was "the implied license under which [illegal immigrants] enter"? Some see also. Yes, there is an intense debate, and the Court may now foreclose it, but it is definitely not just a trivial bright line rule that obviously and conclusively follows from Wong Kim Ark, with absolutely no possibility for any other exceptions.
The articles you linked rest on the presumption that the jurisdiction clause is a stand-in for Common Law exceptions, and that any exception that would apply in the common law would apply for the purposes of the amendment. Hence, people looking for an out tend to get lost in the weeds of the Common Law and get hung up on the justifications for the exceptions and try to apply them to illegal immigrants and other undesirables. That's not what the case says; the long discourse on the Common Law is used for the purpose of explaining why the exemptions exist, and nothing in the opinion suggests that it is to be used for the basis of coming up with additional exceptions. The court is clear:
The authors tacitly admit this when they say they can't find a common law justification for the exclusion of Indians. That's because the clause doesn't preserve every conceivable common law exception; it preserves the exceptions that were recognized at the time of the amendment's adoption, most of which happen to derive from the common law but one of which doesn't. In any event, no such exception actually exists under the common law. Modern immigration law is a creature of statute with only limited corollary in the common law. What people asking to add an exception are asking is to pretend that a statute from 1965 was part of the common law and continue the analysis of the 14th Amendment using common law principles. This is absurd; the concept of an illegal immigrant in the modern sense simply didn't exist at common law. The court goes on to say:
This concept seems obvious, but it's forgotten completely when people are arguing about this. If the exception didn't exist at the time the amendment was adopted, we can't statutorily write it in later. If the amendment, at the time it was adopted, includes aliens, congress can't go back years later and create a new class of "illegal" aliens who aren't covered, any more than they can write in any other exemptions. Allowing them to do so would allow them to gut the amendment entirely. To summarize:
The clause isn't defined by common law, but by the exceptions that were recognized in the United States at the time of the amendment's adoption, regardless of whether they have any basis in common law.
Even if the clause were defined by all the common law exceptions, "illegal immigrant" isn't a recognized exception.
Congress doesn't have the power to create new exemptions by redefining terms.
Right here is the great big "if". Clearly, at the time it was adopted, political allegiance had something to do with it. At the very least, something about the "implied license under which they enter" had something to do with it. (All of this is clearly expressed by the Court prior to 1965.) Wong Kim Ark did not address the question of the original meaning of the amendment concerning anyone who is in the situation of a modern day illegal immigrant. I, for one, am excited to find out from the Court whether or not the amendment, at the time it was written, considering those factors that are expressly relevant, does or does not include illegal immigrants. I don't know! I don't think anyone knows! I think it's a huge open question! ...and I think, given the nature of this most recent comment, you've now come off the idea that it is just trivial, open-and-shut, by following Wong Kim Ark. It's not. It's messy. It's very very messy.
Well, no, it's no "if"; the opinion explicitly states that amendment covers aliens. "Implied license" is only mentioned as the historical context for why the exception exists, not as a test for creating new exceptions. The reason the opinion doesn't discuss the amendment as it would apply to anyone in the situation of a modern-day illegal immigrant is because such a situation didn't exist at the time the amendment was adopted. These older opinions aren't structured as well as the newer ones, which is why I said that they require a close reading to tease out exactly what the court is doing, but it's pretty straightforward: It cites a rule (those born in US territory are citizens) and the exceptions (diplomats, invading armies, Indians, people born on ships). If Wong Kim Ark is still good law, that's as far as the analysis goes, since the court clearly defined what the exceptions are. What your suggesting is that congress can create a new class of persons that didn't exist at the time of the amendment's adoption, apply common law principles to argue that there would have been an exception if the class actually existed at the time of adoption, and use that as justification to pencil in a new exception that didn't exist under common law and wasn't recognized by the Wonk Kim Ark court. There might be an argument for this if the court hadn't ruled, but the court did rule, and you can't do this without overturning 130-year-old precedent.
To give an analogy I'll use a situation that comes up in my own professional life. I handle a lot of product liability cases involving occupational exposure to hazardous chemicals. The exposure to these chemicals took place many decades before the plaintiffs developed their disease. As you would imagine, the plaintiffs in these cases have to prove that they were actually present at the facilities where they are alleging exposure. Ideally, the plaintiff will testify to where he worked, but sometimes the plaintiff is deceased. In those cases, we find coworkers who can testify to where the plaintiff worked and the chemicals he may have been exposed to. But what happens if you can't find any coworkers? You can use employment records, but if the guy was in a union or otherwise visited jobsites where he wasn't employed by the owner, there's probably not going to be anything useful.
Some attorneys got the idea to use spouses, children, etc. to testify to where the plaintiff worked. The problem is that this is hearsay that doesn't fit into any exception. I was involved in a heated courtroom argument last year where plaintiff's attorney was arguing that the common law reasoning behind the hearsay rules was reliability—hearsay is presumed to be unreliable, but we make exceptions for cases when we think it is reliable. The guy in question worked as a union boilermaker for three years at a power plant while it was under construction. No one on the defense side seriously believed that the husband (along with several coworkers the couple was friends with) spent three years lying to the wife about where the husband was working. But the law doesn't allow the judge to just create a hearsay exception because he thinks the testimony is reliable.
The parallels are unmistakable: Hearsay rules developed out of common law principles. At some point, the state legislature codified these into rules of evidence. A situation arose (people developing occupational diseases 50 years after exposure) that wasn't contemplated by the rules. Someone tries to argue that the rules shouldn't apply to this case because the evidence they want to admit is in accordance with common law principles. But you can't just shoehorn exceptions in because you can theoretically justify their existence.
Precisely. However, the concepts involved in the analysis existed. It's like in the oral argument in the violent video games case, where the question was basically posed to Scalia (I can't remember if it was another justice or what), some version of, "Do you want to know what James Madison thought about video games?" Scalia's response: "No. I want to know what James Madison thought about violence!" We can still consider the concepts of political allegiance/implied license/etc., as they apply to illegal immigrants today, even though they didn't have illegal immigrants then.
But they did not rule concerning how those principles come into play for anyone in the situation of modern day illegal immigrants. It just wasn't a question! You're heavily over-reading. I'm reminded of this old old exchange, where someone was heavily over-reading an opinion that simply did not consider an issue front-and-center, and thus, did not take the opportunity to really address it. That opinion may have still discussed principles which could have applied, but if one wants to be extra boneheaded, they could just imagine that it's implicitly settled. The extra fun part about that one is that we already had an opinion which clarified that, no, we didn't focus on that thing before. But we can still analyse it using the principles involved now that it's front-and-center.
In no way does one have to overturn the holding of Wong Kim Ark (that is, birthright citizenship for a resident alien) to say, "The Court in Wong Kim Ark acknowledged that the governing principles involve political allegiance and implied licenses, and since there was no such thing as a modern day illegal immigrant at the time, of course the Court did not find an exception for a category that they didn't even consider. But they obviously did not foreclose the question that they didn't even consider, and we'll proceed to analyze the current case using the same governing principles." From there, they'll inquire about the original meaning of 14A, including all the messiness of political allegiance/implied license, and we'll see what they come up with.
Let's clarify something directly. Do you reject the claim that the original meaning of 14A included some form of messiness about political allegiance/implied license?
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Also literally everyone outside of the United States, obviously those were not US citizens. "All persons under US jurisdiction" was a neat way of describing both the citizens-prior-to-the-amendment and the ex-slaves, with a single phrase, as one group.
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That is a court opinion, which must be justified. If Ark has a justification of the invasion exemption that neither justifies an exemption for illegal immigrants nor falls afoul of my criticims, then lets hear it.
This is what Im attempting to do. Where do I equivocate, or balance, or...? As I said, I agree this is not the simplest reading: that would be one which doesnt make the invasion exemption. As is, the legislators have chosen to include their desired exemptions with a concept of "jurisdiction" that was complicated by previous common law practice, and thats going to take some investigation even if you aim to be straightforward. Again, if you consider these intended exemptions relevant, which I do.
Also, I do wonder why everyone so far has ignored my last paragraph. I mean, my ultimate conclusion is that all the exemptions are gone - shouldnt this maybe dampen your accusations of partisan activism?
To wit:
In other words, the exceptions are justified because the framers of the amendment sought to preserve those that were recognized at the time of ratification. There's nothing in the opinion that suggests the amendment allows for every conceivable exception under common law. I think people lose the plot after the part that says:
The opinion then goes on to discuss those principles, but at no point does it suggest that those principles can be used to craft exceptions other than those that the court recognizes in opinion. Further on, it closes the door:
That's it; here's the rule, here are the exceptions. It couldn't be any clearer.
Interesting. I havent read enough of the legislative debates to say if they meant to enshrine common law generally or a fixed version of it, but I dont think it matters to me. This would catch the guys in this thread who argue about "allegiance" and such, but my argument is about the problems of distinguishing illegal immigration from invasions legally. It sounds like you didnt read the branch with Gillitrut, but it goes into this. I dont need general common law reasoning, because I dont think what Im suggesting is actually a distinct novel exception.
Whatever the legislative debates say doesn't matter at this point, because the exceptions have already been enshrined in law by the Wong Kim Ark decision. I did read the branch you refer to, but I didn't address it because what you guys were arguing was edge cases that, as far as I can tell, don't apply to any known persons. I'm unaware of any extraterritorial raids by natives, let alone whether any of these had children while they were here. Interestingly enough, you actually would need common law reasoning in this case, because the court specifically recognized the exception based on common law, and that's where you'd therefore go to test the bounds of it. That's assuming, of course, that there are no intervening court opinions that have already addressed the issue.
I think this comes down to judicial philosophy then. Stare decisis in the US seems to follow no rule whatsoever in when its used vs ignored, by judges of all camps. As far as Im concerned it exists mostly rethorically.
I think you should have good answers to cases that never happen. The constitution is to some extent a paranoid document, it is meant to make people follow rules even against their will, and when youre "being reasonable about it", you act without an explanation of what youre actually doing. When the weird case actually happens, do you then reverse the thing you already judged, or do something blatantly inconsistent? And if the weird case happened first, then you would have done the right thing? In either case, clearly you were doing the wrong thing in the here and now. To me, this is an integral part of literal interpretation.
I think extraterritorial natives dont fall under the natives exception, but if they do, imagine some other nomadic society raiding.
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Your "crystal clear" reading of Wong Kim Ark is contradicted by the existence of the Indian Citizenship Act of 1924. Your qualifying of it as "uncivilized Indians" does little, because an illegal immigrant can be part of or a descendant of an American Indian tribe. An Afghani can be part of an uncivilized tribe. As a result, there is little evidence for the "Red Rover Red Rover" rule that is espoused.
Instead, Wong Kim is a nice reversal of "bad cases make bad law." Its a simple case that makes for a simple decision. His parents were legal permanent residents, fully in compliance with the laws of the US to the extent of our knowledge, at the time of his birth. He then lived in the US for 20 years and went on a vacation.
I'm not sure what you're getting at here. Wong Kim Ark interprets the 14th Amendment to read that everyone born in the United States is a citizen, subject to the exceptions that were recognized prior to adoption. Indians owing tribal allegiance were among these exceptions. Furthermore, the amendment doesn't state that these are the only circumstances under which one can become a citizen, it just says that these people are citizens. So if congress wants to extend citizenship to other classes of people, they can do so, and have done so. Otherwise, there would be no naturalization and no citizenship for children of US citizens born abroad.
Many types of people owe tribal allegiance.
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