A while back Andrew Hyman had an interesting post in our continuing debate (see also here) over the Fourteenth Amendment and birthright citizenship: Allegiance and Illegal Immigration. From the core of the post:
The best definition of the word “subject” in this context [i.e., in the Fourteenth Amendment] is “owing allegiance”. Earlier this year, Professor Rob Natelson wrote a piece in the American Thinker explaining that the U.S. Supreme Court adopted this “allegiance” definition in 1884 and has never repudiated it. The concept of "allegiance" was traditionally used to determine whether a person is a “subject” of the crown.
In England there were four different kinds of allegiance, as detailed by Lord Coke in Calvin’s Case. The pertinent one here is called “local allegiance” or in Latin “ligeantia localis”. So our question about illegal immigration should boil down to whether an illegal immigrant to the United States owes a local allegiance to the U.S. according to accepted legal doctrine in 1868. If you look at that last link I just gave, Lord Coke explained that “ligeantia localis” occurs “when an alien that is in amity cometh into England….” I very much doubt that someone is in amity who jumps ahead of line and sneaks across the U.S. border while evading American law enforcement. I could be mistaken about this. It could be that such a person is technically in amity as long as he carries no weapon, or is not a soldier, or something like that, but I doubt it. As far as I know, there is no sense in which illegal aliens have ever come into the United States in"amity", unless taken by force (such as during the illegal slave trade).
In response, Stephen Sachs writes:
This isn’t in my wheelhouse, but I’d thought that an alien “in amity” was a technical term for an alien from a country with whom the United States was in amity, a recognized form of international relations that could be secured by a treaty of amity and commerce. Alien friends were entitled to certain kinds of domestic protection that were withheld from other aliens – including alien enemies, with whose country we were at war, and who required special safe-conducts to enter. Cf. Alien Law of England, 42 Edinburgh Rev. 99, 119-20 (1825),https://books.google.com/books?id=VrRZAAAAcAAJ&pg=PA120&lpg=PA120. So it may be a function of nationality, not of individual actions.
In that case, the unlawful entry of an alien friend wouldn’t turn them into an alien enemy (much as we distinguish ordinary lawbreaking from treason), and the children of such an alien would be born into the local allegiance of the sovereign. Is that right?
I think that's right, and I have the following response as well. With all respect, I think Andrew is focusing too much on the word "subject" (which I agree has multiple meanings) rather than on the whole constitutional phrase "subject to the jurisdiction." The phrase as a whole is a legal term of art meaning "under the power of." So if you are subject to the jurisdiction of a court (the most familiar use), the court has power to issue orders which you must obey. (Conversely, if you are not subject to the jurisdiction of a court, that court cannot legally order you to do anything).
Although less common, it's also a legal term of art to say that one is subject to the jurisdiction of a legislature. Under international law, you are only subject to the jurisdiction of a legislature that has some accepted basis for giving you orders. Thus, for example, I am (generally) not subject to the jurisdiction of the British parliament (unless I go to Britain), just as I am not subject to the jurisdiction of British courts. That means that Britain cannot lawfully regulate my actions.
Territoriality is the fundamental basis for legislative jurisdiction under international law. Almost everything within a sovereign's territory is subject to that sovereign's jurisdiction (that is, capable of being regulated by it). That's why going to Britain makes me (temporarily) subject to the jurisdiction of U.K. law. The main exception is for diplomats, who are not subject to the jurisdiction of (that is, cannot be regulated by) the territorial sovereign because of their special status under international law.
So I think the question of allegiance and the various meanings of "subject" are red herrings. The question is whether illegal immigrants and their children are subject to the jurisdiction of the United States, meaning capable of being regulated by the United States. I continue to think it's obvious that they are. No one doubts that under traditional rules of legislative jurisdiction illegal immigrants (unlike diplomats) are appropriately regulated by the territorial sovereign. If such an immigrant commits a crime in the U.S., they will be punished under U.S. law, and no one doubts the U.S.'s authority to do so. That's what "subject to the jurisdiction" means.
Posted at 6:34 AM