Does Illegal Immigration Necessarily Consist of “Aliens in Amity” With the U.S.?Andrew Hyman

Birthright citizenship is much in the news right now.  In the leading case of Wong Kim Ark (1898), the U.S. Supreme Court discussed the old law of England (my emphasis in bold):

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. Such allegiance and protection were mutual -- as expressed in the maxim  protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

Therefore, one key question now is whether it’s reasonable to say that people who have immigrated unlawfully (by skipping over long lines of applicants, evading points of entry, and refusing to prove any right to asylum) are necessarily “aliens in amity,” regardless of what the President might say, and regardless of what Congress might say.  In Miller v. United States (1870), for example, the U.S. Supreme Court said (citing an old English case from 1696) that “subjects of a state in amity with the United States” are nevertheless not themselves in amity with the United States if they engage in “hostile acts” against the U.S. during a war.  Surely, if a million unarmed citizens of the United States decide to elbow their way into another country, without any involvement of the U.S. government, that country could properly consider them to be invaders at war, and treat them accordingly.  

So, I respectfully dissent from Mike Ramsey’s <view that “illegal immigrants do not fit into any of the exceptions to territorial jurisdiction.”  Just because illegal immigration was not an offense against any federal laws in 1868 doesn’t mean we must refrain from drawing reasonable inferences about how it would have (or could have) been addressed at that time.