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PaperclipPerfector  4d ago (text post)   18905 thread views

Culture War Roundup for the week of February 24, 2025

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You and @Gillitrut and whoever else can go on with comparisons, analogies, and philosophical lucrubations involving the meaning of "under the jurisdiction thereof", but a close reading of Wong Kim Ark makes it crystal clear that there is no universe where this is necessary. When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves. That's it. You don't get to add to the list. The opinion makes it clear that the goal of the amendment was to confirm that freed slaves were citizens. Hence, all persons means all persons. The jurisdiction clause was only put in because the government had already recognized certain exemptions prior to the amendment's passing: Diplomats and invading armies were already excepted under common law, and uncivilized Indians were exempted based on their peculiar status in the United States.

This wouldn't be so infuriating if conservatives hadn't spent the past several decades advocating for the kind of minimalist judicial standards that we see in Wong Kim Ark. There's no equivocation, no balancing test, no attempts to shoehorn contemporary ideas into archaic concepts by broadening their scope, just clear, bright-line rules. The fact that we've since restricted immigration to the point that there are 500 different kinds of visas and some aliens who can travel without visas and a whole underclass of illegals below that doesn't change what the 14th Amendment says. It's the same logic as in Bruen, just because the world has changed doesn't mean we change the meaning of the law along with it. And that argument is much stronger here; states had been restricting firearms since the 1800s, but our definition of a natural born citizen has remained consistent until this past month.

For what very little it is worth, especially coming from an unqualified outsider, I agree with you here. It really does seem very straightforward, and the counterarguments appear a lot like motivated reasoning.

Which isn't to say that this law is good or that it should remain unchanged.

I think it seems that way to you because youre not an autistically-literal person by disposition. If you think "I know it when I see it" is a workable legal standard for constitutional rights, then the status quo is fine.

youre not an autistically-literal person by disposition

First time I have that said about me; usually it's the opposite. The problem may be that I'm not a native speaker and especially not fluent in legalese.

Well, weve had normie-ish conservatives before, and you described yourself as a low-openness rural dweller. I dont think my argument takes a lot of language. Its basically: How do you legally distinguish between an invasion and illegal immigration? Theres a continuum there, and some cases relatively far down that continuum, like primitive raiding, would be considered an invasion. See my discussion with Gillitrut for some hammering-out. Obviously today, these seem like distinct things, and saying illegal immigration is like an invasion is a controversial political point, but in a time before any immigration was illegal, is it really so implausible that they would address invasions in a way that includes that?

a close reading of Wong Kim Ark makes it crystal clear that there is no universe where this is necessary.

It really, really doesn't.

When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves. That's it. You don't get to add to the list.

Let's take a look at the text. The Court actually helpfully asks whether there are other exceptions. They cite The Schooner Exchange v. M’Faddon:

The reasons for not allowing to other aliens exemption “from the jurisdiction of the country in which they are found” were stated as follows:

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

Yes, there are indicia in the opinion that go the other way, too. But it's definitely a not clear and complete bright line. What was "the implied license under which [illegal immigrants] enter"? Some see also. Yes, there is an intense debate, and the Court may now foreclose it, but it is definitely not just a trivial bright line rule that obviously and conclusively follows from Wong Kim Ark, with absolutely no possibility for any other exceptions.

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 foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

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:

The acts of Congress known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning or impair its effect, but must be construed and executed in subordination to its provisions.

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:

  1. 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.

  2. Even if the clause were defined by all the common law exceptions, "illegal immigrant" isn't a recognized exception.

  3. Congress doesn't have the power to create new exemptions by redefining terms.

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.

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.

Hence, all persons means all persons. The jurisdiction clause was only put in because the government had already recognized certain exemptions prior to the amendment's passing:

Also literally everyone outside of the United States, obviously those were not US citizens. "All persons under US jurisdiction" was a neat way of describing both the citizens-prior-to-the-amendment and the ex-slaves, with a single phrase, as one group.

When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves.

That is a court opinion, which must be justified. If Ark has a justification of the invasion exemption that neither justifies an exemption for illegal immigrants nor falls afoul of my criticims, then lets hear it.

There's no equivocation, no balancing test, no attempts to shoehorn contemporary ideas into archaic concepts by broadening their scope, just clear, bright-line rules.

This is what Im attempting to do. Where do I equivocate, or balance, or...? As I said, I agree this is not the simplest reading: that would be one which doesnt make the invasion exemption. As is, the legislators have chosen to include their desired exemptions with a concept of "jurisdiction" that was complicated by previous common law practice, and thats going to take some investigation even if you aim to be straightforward. Again, if you consider these intended exemptions relevant, which I do.

Also, I do wonder why everyone so far has ignored my last paragraph. I mean, my ultimate conclusion is that all the exemptions are gone - shouldnt this maybe dampen your accusations of partisan activism?

If Ark has a justification of the invasion exemption that neither justifies an exemption for illegal immigrants nor falls afoul of my criticisms, then lets hear it.

To wit:

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases – children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State – both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. . . .

In other words, the exceptions are justified because the framers of the amendment sought to preserve those that were recognized at the time of ratification. There's nothing in the opinion that suggests the amendment allows for every conceivable exception under common law. I think people lose the plot after the part that says:

The principles upon which each of those exceptions rests were long ago distinctly stated by this court. . . .

The opinion then goes on to discuss those principles, but at no point does it suggest that those principles can be used to craft exceptions other than those that the court recognizes in opinion. Further on, it closes the door:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes....

That's it; here's the rule, here are the exceptions. It couldn't be any clearer.

In other words, the exceptions are justified because the framers of the amendment sought to preserve those that were recognized at the time of ratification.

Interesting. I havent read enough of the legislative debates to say if they meant to enshrine common law generally or a fixed version of it, but I dont think it matters to me. This would catch the guys in this thread who argue about "allegiance" and such, but my argument is about the problems of distinguishing illegal immigration from invasions legally. It sounds like you didnt read the branch with Gillitrut, but it goes into this. I dont need general common law reasoning, because I dont think what Im suggesting is actually a distinct novel exception.

Your "crystal clear" reading of Wong Kim Ark is contradicted by the existence of the Indian Citizenship Act of 1924. Your qualifying of it as "uncivilized Indians" does little, because an illegal immigrant can be part of or a descendant of an American Indian tribe. An Afghani can be part of an uncivilized tribe. As a result, there is little evidence for the "Red Rover Red Rover" rule that is espoused.

Instead, Wong Kim is a nice reversal of "bad cases make bad law." Its a simple case that makes for a simple decision. His parents were legal permanent residents, fully in compliance with the laws of the US to the extent of our knowledge, at the time of his birth. He then lived in the US for 20 years and went on a vacation.

I'm not sure what you're getting at here. Wong Kim Ark interprets the 14th Amendment to read that everyone born in the United States is a citizen, subject to the exceptions that were recognized prior to adoption. Indians owing tribal allegiance were among these exceptions. Furthermore, the amendment doesn't state that these are the only circumstances under which one can become a citizen, it just says that these people are citizens. So if congress wants to extend citizenship to other classes of people, they can do so, and have done so. Otherwise, there would be no naturalization and no citizenship for children of US citizens born abroad.

Many types of people owe tribal allegiance.

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