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Thanks! I can understand getting busy with the Pittsburgh saga; certainly, I now know the time/effort investment required for such a significant post. I greatly appreciate them, even though I haven't had much to say on them.
I'm also grateful for your clarification that you were not accusing me of bad faith.
In some sense, yes, but it is easy to think that this concept is more capacious than it is. For example, some constitutional provisions grant authority to political actors. So, the same provision both takes the question of whether that political actor has such authority outside of various temporary whims (and this question can only be changeable if there is broad consensus to do so), but then within the scope of authority that has been granted, it is entirely plausible that there is plenty of room for a variety of temporary whims to lurch policy one way or another. Other Constitutional provisions may not directly grant authority, but may place bounds within which there is still room for choices to be made. Just speaking purely generally at this point, as you seem to be.
Sure. Nothing objectionable about the basic context and the scope being broader than just slaves. Like I said, British Common Law may be important, and like I said, I was going to let American legal authorities tell us what they thought it meant when they were using it. So yes, Schooner Exchange, and the various US cases that cited it in context of the Citizenship Clause, told us some parts of the old Common Law to pay attention to and what it meant. It's entirely possible that the Roberts Court could, this year, add, "...and oh by the way, we haven't really addressed how the old common law would treat this situation, but there is nothing to do here but to look at the common law for an answer." That could happen! They might not cite any US cases, especially not post-14A.
I mean, sure? The reasoning you give is plausible. I also sort of think it wouldn't have made sense to bring it up at any point in the opinion.
This is a claim. Presumably, the Court's subsequent opinions on the topic told us this? And they told us where the bounds of the common law definition were? That's why I went through all of them. I tried to observe what they said. And sure, they sometimes appealed to a reference in the common law. They also just told us with words what they were doing.
That said, it certainly didn't abolish all statutory definitions of citizenship. We still have plenty of them! But 14A at least instated some grant of citizenship that was not removable by statute, sure.
This is certainly another claim. Where does the Court say that? The Court seems to tell us, over and over again, that principles of sovereignty, allegiance, license, and jurisdiction... perhaps coming from common law... are the principles by which one determines the bounds and exceptions. As you say later, Indians weren't discussed in the old common law, either. The Court didn't say, "Whelp, they weren't called out in the old common law, soooo." Instead, they looked into the principles of sovereignty, allegiance, and jurisdiction, perhaps being informed by common law.
Right. This strict historical part of the above claim certainly seems right. So, we probably have to consider the principles of sovereignty, allegiance, license, and jurisdiction. Perhaps the common law will have clearly applicable principles, and perhaps the US Courts have elucidated them.
Here's where we get to my caveat at the top of the comment. I think this is interpreting the principle of "taking outside of politics" too capaciously. I just responded to another comment in this thread by going through a 1912 commentary on the matter, a section that I had apparently missed, but actually would have liked to have read. They sure seem to think that allegiance has something to do with it. They sure seem to think that the "sovereign's will" has something to do with it. Perhaps the Constitution does make it so that the sovereign's will cannot accomplish some things. Perhaps it allows the sovereign's will to accomplish some things within some bounds. The sovereign certainly does seem to be able to make some choices concerning things like jurisdiction. When? How? Schooner gives some examples, like choosing to withdraw some jurisdiction (Elk seems to comport with this) or to choose whether to give consent/license to various folks to enter.
Presumably, to take an example we saw in Schooner, the sovereign can choose whether or not to consent to an Army entering US territory. The sovereign can choose whether to issue a license for such. If we follow Schooner's reasoning, it sure seems that this is one of those sort of situations where the sovereign's choices can affect something having to do with jurisdiction/immunities. But is that actually not the case? Is the sovereign actually so prohibited by 14A from making any choices that could in any way impact any sort of 'jurisdiction', at least not without getting a Constitutional amendment? Do we need a Constitutional amendment each and every time to determine whether a particular Army has a license to be on US territory, and thus, how jurisdiction/immunities work?
Where, exactly, the lines are for what the sovereign can/cannot affect when it comes to the Citizenship Clause remain unclear to me. Moreover, as I mentioned in my first post, it's also not clear to me what counts as the "sovereign's will" for things like this. Does Congress need to act every time to give consent/license? Can the President do it? I don't know! Maybe it's different for different things.
I sort of don't think we could have? At least if Justice Swayne is to be believed in US v. Rhodes. The Thirteenth Amendment and Civil Rights Act of 1866 certainly prevented that possibility of even needing to ask the question. But you're hitting on quite a question that was live in Elk, as I observed. Does it matter if a person was born before the Civil Rights Act/14A, and how does that affect their situation? As I quoted the dissent:
That is, does 14A have some sort of retroactive effect back to people who were born before it, but then subject to the jurisdiction at the time of passing? I don't think the Court has really ever said, other than what one thinks one can surmise by a small portion of this dissent. It probably mostly didn't come up otherwise, as even if there were any possible questions about 14A, the vast vast majority of cases were clear under the Civil Rights Act, and the window of time when we had people born before it who could have provided cases was likely fleeting.
In any event, I'm really not sure why my position requires coming down on either side of the retroactivity question, and it really just doesn't seem all that relevant. Maybe this is just getting at a theoretical, "What if one, in a vacuum, just asked whether a slave, at the time of birth, in say, 1860, was "subject to the jurisdiction thereof?" I mean, I sort of don't know? Justice Taney in Dred Scott said that they owed allegiance to the US. Would that do it? My guess is probably.
...or... again, possibly because there just didn't seem to be any reason for them to come up? TBH, I'm not really sure what I'm supposed to take away from your sections on Indians. Yeah, it wasn't all that controversial. As you started off pointing out, the language of 14A takes a pretty general scope. But people didn't think this general scope included Indians. Why not? The Court explains the matter in terms of sovereignty, allegiance, and jurisdiction. Maybe the Court was wrong? I'm not sure if something in what you've said is supposed to change what I said I thought was the 'best fit':
Back to you:
I mean, at this point, I hate to say it, but I have to ask whether you read my expounding comment prior to writing this one. I don't really know how they should be treated, but at face value, it doesn't seem like the sovereign has consented to their entry, has not granted them any license, any "temporary or local allegiance", and has not consented to any limitation concerning immunities to prosecution.
As I just said in the other comment in this thread, maybe the boundary is residence, like that 1912 commentary drew it? Maybe there's some room for the sovereign's will to make some choices, but with some bound that comes from somewhere? Maybe it's less? Maybe it's mere presence, with or without a license, and that's the bound enshrined in the Constitution? Like, this is still stupid unclear. But I don't think you've said anything here that makes me think that Schooner doesn't provide the proper framework and background, or that we don't have to engage with principles of sovereignty/allegiance/license/jurisdiction/immunities. I don't think you've successfully convinced me that literally all of those factors, in every detail, were utterly fixed by 14A, and that there's nothing that the sovereign can do that affects any of them in any way. That would seem to defy the reality that the sovereign has made choices concerning its own jurisdiction and such, pretty regularly, in fact. Maybe none of those choices have much room within the bounds of 14A, but I still sort of don't see why. I don't see how the theory comes together within the framework of Schooner, and I don't see why Schooner is the wrong framework.
If someone asks, "Are there exceptions?" the answer is, "Yes." If it's followed up with, "Where do we learn about how those exceptions work?" the very next second, the answer seems to be, "Let's go back, start with the principles of Schooner, and go from there." That's what the Amar bros did, that's what WKA and basically every Court has done when they've said something coherent on the topic, because almost none of it makes any sense unless we start from, "Well, here are the principles of sovereignty, allegiance, license, jurisdiction, and immunities." Many of the Citizenship Clause cases make no sense without it.
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