Neutral Principles (“Process, Not Outcome”): A New Advocacy Organization

This new group is run by my old friend and experienced appellate lawyer Erik Jaffe (who’s also my colleague at Schaerr Jaffe LLP, where I’m a part-part-part-time Academic Affiliate); Leonard A. Gail of Massey & Gail LLP; and investor and entrepreneur Mark Koulogeorge. I’m happy to be on its Legal Advisory Board, together with Robert H. Bork, Jr.; though that doesn’t mean that I’ll agree with every position it takes, I’m delighted to be connected with it. Here’s the group’s summary of its mission:

We deploy a disciplined set of legal methodologies to challenge executive, legislative, and judicial decisions that prioritize desired outcomes over fidelity to the Constitution and consistent rule-of-law process. These methods include textualism and originalism—anchored in the original public meaning of the Constitution’s language as understood, where necessary, in light of history, tradition, and the broader constitutional structure established by such text.

Our approach aims to be scrupulously neutral and to resonate with jurists across the ideological spectrum. These methodologies carry no inherent political bias when faithfully applied, and they tend to produce a stabilizing effect on legal interpretation—applying the same principles regardless of which parties control the political branches.

Its first filing is an amicus brief in the birthright citizenship case; the Introduction:

The Citizenship Clause defines as citizens “[a]ll persons born * * * in the United States, and subject to the jurisdiction thereof.” U.S. Const. amend. XIV, §1, cl. 1. For purposes of this case, which involves persons “born in the United States,” only the meaning of the second qualification, “subject to the jurisdiction thereof,” is at issue. Fortunately, that phrase and its component parts involve simple, well-known language that, in whole and in parts, had easily understood meaning. Applying the neutral principles of relying on text, ordinary meaning, and contemporaneous usage yields a straightforward answer: at a minimum, all persons physically present in the United States at birth are “subject to the jurisdiction of” the United States unless the United States has previously ceded such jurisdiction (with all the consequences thereof) by treaty, statute, or the like.

Both before, during, and since the 1860s, “jurisdiction” overwhelmingly referred to the lawful authority of a government’s courts and laws over persons and things within its reach, whether through physical presence or other contacts. To be “subject to” such authority or laws meant (and continues to mean) that those courts could lawfully attach you as a party and pass judgement over you in criminal or civil proceedings. Presence within the territorial domain of a court or other governmental entity was almost always sufficient for a person to be subject to the jurisdiction of such entity (though it was not always necessary).

Under those settled public meanings, anyone physically present in the United States who is amenable to American legal process and bound by American law is “subject to the jurisdiction” of the United States. That covers almost everyone born here (and hence physically present at birth), including children of temporary visitors and unlawful entrants. The only exception—and hence the need for the further qualification of jurisdiction—is persons falling within narrow, well-recognized categories such as diplomats and their families given immunity via positive law placing them outside domestic legal authority.

The President’s contrary reading, Pet.Br.18, rests on selectively adding to the Fourteenth Amendment’s text an unwritten phrase—”not subject to any foreign power” to exclude persons otherwise and indisputably within the power and authority of the nation’s laws and courts. But the historical record does not support such editorial license. In the decades leading up to 1868, Congress, treaty-makers, and courts used “subject to the jurisdiction” to describe, at minimum, territorial, legal authority—often in contexts that explicitly contemplate dual or overlapping jurisdiction based on both territorial and non-territorial grounds for authority over persons. That territorial presence conferred jurisdiction of persons without negating non-territorial grounds for the authority of others negates the suggestion of an implied requirement of exclusive U.S. jurisdiction. Adding the President’s narrowing gloss to the more expansive words actually chosen would make scores of period sources nonsensical. The only plausible inference from that history is the obvious and consistent one: the text meant what it says and encompassed all persons over whom the United States could exercise lawful power and authority—those “subject to” United States law and tribunals. The relevant history and the text of the Constitution does not require or permit an elastic inquiry into complementary or overlapping jurisdiction or the supposed political loyalty (of the parents, no less, rather than of the newborn that is the object of the Fourteenth Amendment’s definition). It defines as citizens all those who are physically present in the United States at birth and not otherwise exempt or immune from the power and authority of U.S. law and tribunals. U.S. Const. amend. XIV, §1, cl. 1. That simple and original public meaning of the Fourteenth Amendment cannot be narrowed by Executive Order.

Finally, the President’s “allegiance” theory, Pet.Br.14-15, is not only linguistically unmoored, it is in deep tension with our legal tradition. From the Founding forward, American courts have exercised civil and criminal jurisdiction over aliens and others whose “primary allegiance” was not to the United States. And the government itself prosecutes unlawful aliens every day on the premise that they are fully subject to our laws and courts. That reality underscores the core point: jurisdiction is about lawful authority and power of the governmental entity in question over persons within its territory or reach, not the professed, implied, or even heartfelt loyalty of the object or target of that authority and power. Where persons were deemed to be beyond the reach of U.S. jurisdiction despite being physically present here, it was because of some statute, treaty, or accepted common law practice that exempted or immunized such persons—diplomats, foreign nationals protected by specific treaties, captured enemy combatants—from U.S. laws and tribunals, not merely because they were citizens of foreign nations. Because the President’s Order conflicts with the Constitution’s text as originally understood—and with the stable, administrable line that “subject to the jurisdiction” historically supplied—the Court should affirm.

The brief is filed by Jaffe, together with our Schaerr Jaffe colleagues James A. Heilpern and Hannah C. Smith.