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PaperclipPerfector  4d ago (text post)   18953 thread views

Culture War Roundup for the week of February 24, 2025

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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.

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