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I think there's an obvious contemporary analogy with the 14th amendment: The Confederate States of America. Were those children born to confederates during the Civil War considered to be American citizens? As best I can find the answer to that is "yes." Children born to confederates were considered US citizens the same as any children born in the Union. This is pre-14th amendment but I doubt the authors of the amendment would have understood it to exclude the children of confederates. It seems to me it would be hard to argue CHAZ or Mexican cartels constitute a sufficiently foreign jurisdiction when the CSA was not.
I think this bolsters rather than undermines my point. In the case of the soldier or invading army there is arguably a sphere of action in which US courts do not have jurisdiction to prosecute them for things which may otherwise be crimes. That being those actions undertaken as part of prosecuting the way pursuant to their governments directives. There is no similar sphere for illegal immigrants.
I do not think it is too much of a stretch to extend this aegis of foreign jurisdiction to foreign citizens providing logistical support ala camp followers.
I agree that CHAZ is analogous to the CSA. In both cases, most of the people involved would have been US citizens anyway, and even for the remaining ones, you can hardly deny entry to someone who was there all along. I would also drop the cartel example because it might include all sorts of legally different things. So, what about the raid from extra-territorial natives?
The way I think of it is that the US does have jurisdiction, but the criminal is the commanding goverment rather than him. In any case, if the existence of such a sphere were sufficient to deny jurisdiction, then officials with sovereign immunity would also be "not subject to jurisdiction".
Im not sure how often following families were net helpful vs something the command couldnt take away from soldiers, and dont think the outcome should depend on that. And what if some enemy civilians attempt to settle conquered land?
In general, the tenor of this conversation is you attempting to draw a more complex and less obvious distinction, that will accommodate the invasion exception without excepting illegal immigrants. You havent found counterexamples to my relatively simple theory that accommodates it. This very much looks like you bending towards a desired conclusion.
What would it mean to be an "extra-territorial native" that was not covered under the exemption for Native Americans? What other group is being imagined here?
I don't understand why they wouldn't both be criminals. I think pretty ordinarily if person X commits a crime on person Y's orders they are both criminals. I'm not sure what logic makes the foreign government a criminal and not the individual who committed the acts constituting the crime.
I think the people that literally constitute the sovereign whose jurisdiction we are discussing are under the jurisdiction of the sovereign they constitute.
As you note above, invading armies likely has some meaning beyond the literal soldiers since children born to soldiers must be pretty uncommon. That comes directly out of Ark. I'm comfortable thinking of informal logistical support as being part of the "army" in that sense. I think enemy civilians would fall under the jurisdiction of the government being occupied.
I disagree. Invading armies, organized under the auspices of some government, seem to me quite different than a group of unrelated people not organized with each other or by any government. In relation to each other, to the country they are coming from, to the country they are going to. Treating them the same does not make any sense. In what sense are illegal immigrants an "army?"
As I said, natives living on land not even claimed by the US. Or maybe natives living on canadian land and only coming over for the raid. Or maybe the mongol hordes coming across the Bering straight, plundering a few US towns and then going back home, but with a baby born along the way, if you just cant process anything involving natives. I pick these examples because Im quite sure they would have considered that an exempted invasion at the time.
Practically speaking, we treat organised crime like this because we expect that we can dominate them completely, and with the opposing army we dont. The rule of condemning all is powerful but brittle, and must be used carefully. Note that CSA soldiers were criminals rather than foreign soldiers to the US, but were largely excused. But this is getting very substantive, in a branch that I dont strictly need. Better to stop it here.
So do I. Yet you have made your case on a principle implying they arent. You cant shrug off weird implication just because they would be weird.
As in, they would get the citizenship? I think people at the time would disagree.
No you dont. What youre describing is not a counterexample, but an attack on plausibility. What I said is that the simple principle of government doesnt want you to come in = refusing jurisdiction agrees with all cases known from before the time of immigration restrictions. Im also not saying the immigrant is an army - I dont see the illegal immigration exemption as a subtype of the invasion exception - I think the plausible justifications for the invasion exception also justify that one.
And I argue, both in OP and here, that this is simply asserting a distinction that you dont actually have a good way to draw, as evidenced by the difficulty in detail we have explored in this thread.
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