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This is pretty plausible to me. But I don't really know? Of course, the question only matters to the extent one does think that allegiance has something to do with it, and I'm still not sure that everyone does. Moreover, my first instinct is that this probably mostly matters for analysis of whether they're "subject to the jurisdiction thereof", and it's not clear to me to what extent this sort of analysis bleeds into the "in the United States" question. Which, again, at least the USG position in the past decade has been to concede that they do owe enough allegiance to the US to be considered subject to the jurisdiction thereof (if that is "the relevant sense" of the phrase).
But in the event that it does matter, then I think that I (at least personally) am in for many question marks concerning how the analysis is supposed to go. I think it would require a lot of both historical work and theory work. For example, as mentioned, the Court long ago said that Puerto Ricans owed allegiance to the US. I don't know the details of how their local government was set up. I vaguely recall that the US still basically appointed someone there, but the locals also had some say in other parts of it. Obviously, there are parallels and possible question marks to be made with Indian tribes. What sort and how 'much' localized government counts? How much US gov't control above the localized process is acceptable before flipping the allegiance back the other way? And of course, questions still linger from that Fourth Circuit opinion about places like military prisons in Iraq. The US destroyed the foreign State that had existed. Does trying to prop up some other localized gov't matter? What if that local gov't has no authority whatsoever over places like military prisons?
My biggest concern really is the question about which parts of the analysis are purely in the domain of "in the United States" versus what parts are concerning "subject to the jurisdiction thereof". Where does allegiance matter? Where does it not matter? After another day, I'm currently waffling on whether I do actually need to deep dive on this other set of questions to see if I can make sense of a reasonably sharp distinction. Sigh. It's so confusing.
I think that the "and" in the 14th Amendment, by imposing two conditions, makes it clear that one can be subject to US jurisdiction but outside of the United States. If the clause only referenced jurisdiction it would be a different matter. There are already people who aren't in the US by any definition of the term, but are nonetheless recognized as being subject to US jurisdiction. For instance, a man in Guatemala who enters into a business contract with a man in Texas might be subject to US jurisdiction even if he's never been to the US in his life.
Right, and conversely, it can be the other way 'round, too. One can be inside the United States, but not subject to the jurisdiction thereof. Pretty much everyone would agree on examples like Napoleon or his diplomats. Questions start to become interesting when we consider, say, foreign armies with/without the consent of the sovereign or Indians, at which point, the natural question is to inquire as to "the relevant sense" of the phrase. One might even wonder if such a man in Guatemala who enters into a business contract with a man in Texas satisfies "the relevant sense" of the phrase. Maybe he does!
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