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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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