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Akhil and Vikram Amar, along with their student, Samarth Desai, have been posting a series of articles on SCOTUSBlog about the birthright citizenship case. I haven't really covered them. They sort of trickled in as I was working on my chonker post on the topic. I'm not going to go back and pick at every one of them. They have pretty clear difficulties for their arguments once you've just read through all the case law. They do, indeed, cite many of the relevant precedents. I would even give them credit for not really getting distracted by the smattering of random state court opinions that have been mined for dicta.
Yesterday, they posted another installment, with the primary argument being that since "parents" (or variants) are not to be found anywhere in the text of 14A, one simply cannot consider them in any way. Of course, this runs into the typical difficulties if you've read the case history. I won't go through this post in detail either. Suffice to say, this one doesn't talk at all about Indians; they address that case in other posts, and, well, it leaves something to be desired, for sure. But I guess I'll just let their glaring lack of addressing it here speak for itself.
What stuck out to me was this section, addressing the other categories that pose difficulties for their position:
I didn't want to spend the time to copy over their links, so click through if you want to read them. What stood out to me was that their only case link was to, wait for it... Schooner! Of course they're appealing to the framework and theory of Schooner! That's the case that elucidated a framework and theory for how to think about the principles of sovereignty, allegiance, license, and jurisdiction. They even pull what is perhaps one of the most confusing examples from the case - when a sovereign, himself/herself, were to enter the US.
Of course, they don't talk about Schooner's discussion about the case in which a foreign sovereign entered the US without the consent of the US. Nor do they actually work through the rest of the framework and theory that Schooner put in place. They want the Full Schooner, but they don't want to take it seriously! They don't want to actually read through the case and engage with how the opinion says the framework applies to various specific situations. They just want to pull very specific pieces and then form their own, different, theory to wrap around it. It's just so glaring now, every time I see someone write on this topic. I can't unsee it.
First, I want to apologize for not responding to your comments from the other thread despite your requests. I was too busy overall and my Motte time was mostly dedicated to finishing up the next Pittsburgh installment, and by the time that was completed I kind of forgot. Second, I want to assure you that the comment about people acting in bad faith wasn't directed at you personally. I had in mind specifically a bill from the early years of the Obama administration that went nowhere and read:
It's no surprise that these people, and nearly everyone else I've heard flogging for a more restrictive definition of "subject to the jurisdiction thereof", take a dim view of immigration generally and support as many restrictions as possible. With that out of the way, I can move on to address your main argument about using Schooner Exchange as a framework. First, I think we can both agree that the purpose of a constitutional provision, as opposed to a law, regulation, enforcement policy, etc., is to take certain issues outside the realm of politics. In other words, we recognize that certain things should be beyond the temporary whims of the legislature, executive, or government agency, and only be changeable if there is broad consensus to do so.
That being said, let's look at the context of the 14th Amendment. There is broad consensus that the immediate purpose of the amendment was to guarantee citizenship to former slaves. The language itself, however, doesn't limit the scope of the clause to former slave, and this wasn't some oversight, since other parts of the amendment explicitly mention slavery, and the near-contemporaneous 13th and 15th Amendments also explicitly refer to slavery, so we can assume that the clause takes on a general scope. The framers would have understood that general scope to be in reference to the common law. I know you dismissed the common law, but it's important here. You don't have to go digging into old English court cases because as it was understood in America would have been in reference to Blackstone's Commentaries, which were written shortly before the Revolution. There may be court cases that are on point but they aren't terribly important here. For instance, you probably see plenty of personal injury lawyers advertising on television. The vast majority of there cases will involve negligence, which is a common law cause of action that (mostly) isn't codified. Each state has its own variations based on court rulings, but if you want to know what our "general understanding" of negligence is, you look at the Restatement of Torts. the Commentaries are basically a restatement of common law.
The reason Schooner Exchange is important here is because it is basically a restatement of 19th century American understanding of the common law insofar as it pertains to jurisdiction. In other words, this is the context through which the framers of the 14th Amendment would have understood it. Notable, the Schooner Exchange opinion does not mention slavery. Why? Because slavery was not recognized under the common law. British courts did issue rulings pertaining to slavery, and the whole area is a little fuzzy, but there was never any formal recognition of slavery as a status, and Blackstone himself officially disclaimed the idea that slavery could exist at common law. Slavery did exist in the colonies, but it was a creature of statute, formally recognized by colonial legislatures. What the 14th Amendment did was abolish statutory definitions of citizenship and reinstate the common law definition. And at common law, anyone born in United States territory, whether of citizen or alien parentage, is subject to the jurisdiction of the United States, subject to a few well-recognized exceptions.
"Illegal aliens" was not one of those exceptions. I use scare quotes because the concept did not exist in 1868. It would be more than a decade before congress passed any laws barring entry to any class of foreigners, and the common law makes no distinction between legal and illegal aliens. Illegal aliens are a creature of statute, and we can't modify the constitution simply by passing legislation to limit its scope. We can't deny citizenship to the children of illegal aliens any more than we can legislatively create a category of "illegal citizens" and deny citizenship to their children as well. To understand why we can't do this we only have to look at the history of the amendment itself: There was a legislatively created category of people who the court had previously decided weren't citizens, and we passed an amendment prohibiting us from doing that anymore. Taking your proposed framework at face value would mean that we could have denied citizenship to freed slaves by reading antebellum slave statutes and Supreme Court rulings as evidence that they were not subject to the jurisdiction of the US at the time of their birth. Of course, such a reading would have completely obviated the amendment's purpose!
I want to make a final point about Indians that I didn't include as part of my main argument because, as you agree, Indians are weird. First, Schooner Exchange says nothing about Indians, because Indians don't exist at common law, but there is a broad body of evidence suggesting that the framers of the 14th Amendment did not view them as subject to the jurisdiction of the United States, and this isn't particularly controversial. The US had been dealing with Indian issues for decades prior to 1868 and would continue dealing with them for decades thereafter. The important distinction here, though, is that Indian tribes were treated as somewhat sovereign entities but not entirely sovereign entities, and were subject to some degree of control by the United States government. You can bring up the Major Crimes Act, but you also have to consider how limited it was: Certain major Indian on Indian crimes can be tried in Federal Court. Indian tribes still have a degree of sovereignty, including their own court systems, and I doubt anyone arguing that illegal aliens or their children are not subject to US jurisdiction would be arguing that they are entitled to some special judicial treatment as a result. As long as illegal aliens have existed we have not treated them any differently wrt the court system than anyone else (subject to the well-recognized exceptions), and I don't hear anyone arguing that we should.
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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