“Outlaw” Is No Longer A Concept Of Law

 The argument here is that “illegal immigrants” (the term used in the opinion piece) are “outlaw.”

Both the Lincoln administration and the Congress that proposed the 14th Amendment held this allegiance-for-protection view, with this difference: In England, the allegiance expected of a subject was obedience to the sovereign monarch in return for his protection. In the American Republic, where the people are sovereign, the allegiance expected of a citizen was obedience to the laws.

It’s an old concept, unrecognized in American jurisprudence, that people can be outside the law’s protection. The other end of that legal spectrum is that the sovereign is likewise beyond the law.  But in that case the sovereign is the law (and the law is not subject to itself. Which, yes, obviates the concept of “unconstitutional laws”), and so not subject to it. But the sovereign is protected by that status (and by holding society together with the protection of the law), while the outlaw has placed himself beyond the law. The consequence for the outlaw is that the law will not protect him. He is prey to fraud, assault, even murder.  Even under slavery, slaves were never outside the law’s protection. They could be treated cruelly, but to kill a slave deprived the owner unlawfully of his property. Yes, that’s morally and legally indefensible, but that’s the point. An outlaw could be killed with no consequences. That was the status of  “outlaw.”

As I say, it’s never been recognized in American jurisprudence, and it never should be.

The concept of “outlaw,” in fact, arose from the idea of allegiance to the king. One who so violated the law (literally by taking the king’s property, be that royal grounds or the king’s subjects) that he had voided his allegiance, became an outlaw. Allegiance was presumed, not proven by words. It could only be voided in extreme circumstances.

Violating the administrative law of undocumented entry is hardly such an extreme.

According to the quoted paragraph, an “illegal immigrant” (an undefined term but one usually applied only to non-whites) is not entitled to protection of law, or to U.S. citizenship. What, then, of the case of Elon Musk? He entered the country on a student visa, but failed to comply with its terms. Later, while here “illegally,” he applied for citizenship. He acted illegally again, misrepresenting his legal status in order to earn citizenship. Is he not-entitled to citizenship because of his fraud? Is he actually “outlaw”? He is by the quoted argument.

This is how they present the basis for Wong Kim Ark, which they recognize as the fundamental case on birthright citizenship:

In Wong Kim Ark, the leading case on birthright citizenship, the Supreme Court explained that “jurisdiction” referred to being born “within the allegiance” of the sovereign. The court held that a child born of parents with a “permanent domicile and residence in the United States” was a birthright citizen. Wong Kim Ark’s parents, as persons who came in amity, had entered into the social compact and were entitled to all the benefits of that compact, including not only the protection of the laws but also the benefits of citizenship for their children. Under the common law, the court observed, “such allegiance and protection were mutual.”

But this is how the Wong Court presented the issue:

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution.

The op-ed has to misconstrue the case, in other words, to make it fit their argument. That argument is further undermined by the analysis of the law in Wong, which begins with this premise:

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection.

"Subject to his protection” is the key point. All persons within the jurisdiction of the United States (as those within the borders are), are subject to the laws protection, as well as its judgment. Wong did not even tacitly accept the concept of “outlaw” in American law, but the op-ed can’t make its argument without it.

“Subject to the jurisdiction” is also the qualification for birthright citizenship in the 14th Amendment. The op-ed tries to rewrite Wong by ignoring the extensive discussion of jus soli citizenship. But since the op-ed chooses a citation to British law, here is a citation from Wong:

“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality."

The opinion in Wong rests on such analyses. Note there is nothing there about parental “allegiance.”

This is a hodgepodge argument with no real connection to the law. But the authors are constitutional law professors. Which indeed gives Omri Marian the right take:

I don't assume he's wrong. I know he's wrong as a matter of fact. I also think you both are intellectual hacks who don't belong anywhere near a university classroom.

I’m only sorry they won’t get to make this argument in court, where it could be properly shredded.

Intellectual hackery is far from unknown among my brothers at the bar, and frequently displayed by those on the bench, so the ultimate decision in this matter remains to be seen.

Agreed. And why I said it “could be” shredded, not that it would be. Certainly it should be.

Nothing, after all, is certain but death and taxes.  And intellectual hackery, eh?