Are you seriously suggesting that undocumented immigrants are immune from US jurisdiction in some respect? This sounds like a reverse version of the odd legal theories proffered by sovereign citizens as to why they should not be subject to judgements in US courts.
What does “subject to the jurisdiction of” mean? Everyone seems to be equating that with diplomatic immunity, but that seems to arise from the state department’s historical interpretation of the term in determining citizenship of children of foreign diplomats.
Wong Kim Ark doesn’t answer the question, because it doesn’t even try to interpret the term. Instead it assumes that the framers of the 14th amendment meant to incorporate English common law of citizenship. Maybe that’s true, but that’s not what the Court thought the term meant in the Slaughterhouse Cases two decades before that.
Justice Harlan also had a well reasoned dissent in that case, noting that English common law on citizenship arose out of feudalism and wasn’t necessarily an appropriate source on the question.
I think it’s unlikely this will get overturned, but it’s not a frivolous argument.
Wong Kim Ark cites, at length, Marshall's discourse on jurisdiction in Schooner Exchange v McFaddon, which turns entirely on this question. It also notes the language change between the Civil Rights Act and the 14th Amendment, where the revision clarified precisely this issue. It's a frivolous argument. Would you like to put some money on this? I'd give you favorable odds at 7-2, assuming the court composition remains as it is now.
It’s not clear to me that “jurisdiction” is being used in the same context in the 14th amendment as in Schooner Exchange.
Regardless, I wouldn’t call an argument supported by clear dicta in one Supreme Court case and a solid dissent in another “frivolous.” But I’d put the odds of the Supreme Court ruling in Trump’s favor substantially below 10%. You lose 100% of the shots you don’t take, though.
I feel we could usefully keep in mind another observation of Marshall's quoted in Wong Kim Ark, seperate from his writings in Schooner Exchange mentioned above:
"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court* is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."
* The question in Slaughterhouse cases being on the topic of whether the 14th Amendment automatically subsumed the legislative authority of states in important respects, rather than the eligibility of children of foreign nationals for US citizenship.
Sure, maybe the Slaughterhouse Cases dicta was just wrong. But maybe there is something in the historical use of “jurisdiction” that sheds more light on what “subject to the jurisdiction” means. I haven’t done the deep dive myself, I’m just unpersuaded by the common law argument in Wong Kim Ark unless that really is all the historical record leaves us to go on.
It's not murky, I just picked the most official source. There's no real enforcement of selective service, except that if you don't sign up for it likely bars from subsequent employment by the Federal government unless you can get a waiver.
In practice, immigrants aren't conscripted during a draft.
We haven't had a draft since the 1970s. It's unclear how many draftees were immigrants back then (and the legal definitions around immigration have changed in the meantime) but historically conscription of immigrants has been the norm, not the exception.
Voting, Jury Service, Employment Authorization, and Driver's licenses.
These seem like things from which undocumented immigrants are excluded (by law!), not immunized. Why you think this is an argument in favor of your legal theory is beyond me.
The correct legal term is "illegal aliens" not "undocumented immigrants".
My argument is that the phrase "and subject to the jurisdiction thereof" may be interpreted to mean that individuals must be under the complete, allegiance-owing jurisdiction of the United States, and because they may not be for a host of reasons, the SCOTUS may reevaluate US v Wong Kim Ark and reinterpret the 14th amendment.
There's also this 1866 Congressional document discussing the 14th after it was passed detailing "and subject to the jurisdiction thereof". It reads "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but it will include every other class of persons." https://x.com/pepesgrandma/status/1057514062899277824/photo/...
