Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Barbara, et al.

Supreme Court briefFeb 26, 2026

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No. 25-365

In the Supreme Court of the United States

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

BARBARA, ET AL.,

Respondents.

On Writ of Certiorari Before Judgment to

the United States Court of Appeals

for the First Circuit

BRIEF OF AMICUS CURIAE

NEUTRAL PRINCIPLES

SUPPORTING RESPONDENTS

AND AFFIRMANCE

ERIK S. JAFFE

Counsel of Record

JAMES A. HEILPERN

HANNAH C. SMITH

SCHAERR | JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

Telephone: (202) 787-1060

ejaffe@schaerr-jaffe.com

Counsel for Amicus Curiae

FEBRUARY 26, 2026

QUESTION PRESENTED

Whether Executive Order No. 14160, Protecting

the Meaning and Value of American Citizenship (Jan.

20, 2025), complies on its face with the Citizenship

Clause and with 8 U.S.C. §1401(a), which codifies that

Clause.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION AND INTEREST OF

AMICUS CURIAE ................................................... 1

SUMMARY .................................................................. 3

ARGUMENT ................................................................ 6

II.

The Original Public Meaning of the

Fourteenth

Amendment’s

Phrase

“Subject to the Jurisdiction” of the

United States Plainly Meant Being

Answerable to this Nation’s Laws and

Courts. ............................................................. 7

Statutes ................................................. 12

Treaties between the United States

and foreign nations ............................... 13

Caselaw.................................................. 14

Adding the Atextual Requirement of No

Foreign Allegiance to Limit “Subject to

the Jurisdiction” of the United States

Conflicts with the Long History and

Tradition of Courts Hearing Cases

Involving Parties with Limited or No

Allegiance to the United States. .................. 17

iii

III. Jurisdiction Over Persons Physically

Present in the Geography of a Nation Is

the Default Condition Unless Statute,

Treaty, or Common Law Specifically

Exempted and Immunized them from

United States Laws and Courts. .................. 21

The children of diplomats are

specifically

exempted

from

jurisdiction through the Vienna

Convention on Diplomatic Relations

and Congressional statutes. ................. 22

Specific statutes—in addition to the

common

law—treat

enemy

combatants

outside

the

jurisdiction of American courts. ........... 24

At the time of the Fourteenth

Amendment, nations could and did

give up jurisdiction over groups of

foreign nationals by treaty.................... 25

CONCLUSION .......................................................... 31

TABLE OF AUTHORITIES

Cases

Page(s)

Bank of U.S. v. Halstead,

23 U.S. 51 (1825) ...................................................... 8

Bradstreet v. Thomas,

37 U.S. 59 (1838) .................................................... 17

Crawford v. The William Penn,

6 F. Cas. 778 (C.C.D.N.J. 1815)............................. 24

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................ 7, 11

Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857) ................................. 18

Fairfax’s Devisee v. Hunter’s Lessee,

11 U.S. 603 (1812) .................................................. 24

Fifield v. Insurance Co. of Pa.,

47 Pa. 166 (1864).................................................... 15

Fisher v. Consequa,

9 F. Cas. 120 (C.C.D. Pa. 1809) ............................. 18

Huggins v. People,

29 Ill. 241 (1862) .................................................... 14

Kelly v. Crapo,

41 Barb. 603 (N.Y. Sup. Ct. 1864) ......................... 15

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .................................................. 7

Lawrence v. Smith,

45 N.H. 533 (1864) ................................................. 16

Massie v. Watts,

10 U.S. 148 (1810) .................................................. 10

Mayor of New York v. Miln,

36 U.S. 102 (1837) .................................................. 18

New York State Rifle & Pistol Ass’n, Inc.

v. Bruen, 597 U.S. 1 (2022) ................................ 6, 11

Picquet v. Swan,

19 F. Cas. 609 (C.C.D. Mass. 1828) ....................... 10

Polar Star Lodge v. Polar Star Lodge,

16 La. Ann. 53 (1861)............................................. 14

The Prize Cases,

67 U.S. (2 Black) 635 (1863) ............................ 16, 24

Todd v. Kerr,

42 Barb. 317 (N.Y. Sup. Ct. 1864) ......................... 15

Toland v. Sprague,

37 U.S. 300 (1838) .................................................. 10

United States v. Amy,

24 F. Cas. 792 (C.C.D. Va. 1859) ........................... 19

United States v. Clark,

2 Cranch C.C. 620 (C.C.D.C. 1825) ....................... 19

United States v. Malebran,

26 F. Cas. 1145 (C.C.D.N.Y. 1820) ........................ 18

United States v. Percheman,

32 U.S. 51 (1833) .................................................... 15

United States v. Randolph,

27 F. Cas. 709 (C.C.W.D. Pa. 1853)....................... 18

United States v. Ravara,

2 U.S. 297 (C.C.D. Pa. 1793) ................................. 18

Whitford v. Panama R.R. Co.,

23 N.Y. 465 (1861).................................................. 15

Wilcox v. Henry,

1 U.S. (1 Dall.) 69 (Pa. 1782) ................................. 24

Wilkes v. Dinsman,

48 U.S. 89 (1849) ...................................................... 8

Constitutional Provisions

U.S. Const. amend. XIV .............................. 1, 3, 5, 6, 9

U.S. Const. art. I ........................................................ 16

U.S. Const. art. II ...................................................... 22

U.S. Const. art. III ..................................................... 22

Statutes

8 U.S.C. §1401 .............................................................. i

Act of April 30, 1790, ch. 9, §25, 1 Stat. 112............. 23

Act of April 5, 1866, ch. 25, 14 Stat. 13 ...................... 9

Act of April 9, 1866, ch. 31, 14 Stat. 27 ...................... 9

Act of February 12, 1863, 12 Stat. 648 ..................... 27

Act of February 25, 1867, ch. 83, 14 Stat. 412 ......... 12

Act of February 4, 1862, 12 Stat. 335 ....................... 27

Act of January 13, 1865, 13 Stat. 421 ....................... 27

Act of January 24, 1865, 13 Stat. 422 ....................... 27

Act of July 25, 1866, ch. 233, 14 Stat. 224................ 27

vii

Act of July 25, 1866, ch. 234, §9, 14 Stat. 227 .......... 12

Act of July 6, 1812, ch. 128, 2 Stat. 777.................... 25

Act of June 20, 1864, ch. 136, 13 Stat. 137 ............... 27

Act of June 22, 1860, ch. 179, 11 Stat. 72................. 27

Act of March 2, 1867, ch. 176, 14 Stat. 517 ................ 9

Act of March 21, 1866, ch. 38, §9, 14 Stat. 10 ............ 9

Act of March 3, 1825, ch. 65, 4 Stat. 115 .................. 13

Act of March 3, 1841, 5 Stat. 609 .............................. 12

Diplomatic Relations Act of 1978,

Pub. L. No. 95-393, 92 Stat. 808............................ 23

Judiciary Act of 1789, ch. 20, 1 Stat. 73 ....... 10, 17, 22

Naturalization Act of 1790, ch. 3, 1 Stat. 103 .......... 16

Regulation

Executive Order No. 14160, Protecting the

Meaning and Value of American Citizenship,

90 Fed. Reg. 8449 (Jan. 20, 2025) ............................ i

Treaties

General Convention of Amity, Commerce,

Navigation, and Extradition,

U.S.-Dom. Rep., Feb. 8, 1867, 15 Stat. 473

(proclaimed Oct. 24, 1867) ..................................... 13

Treaty Between the United States

of America and the Queen of Madagascar,

U.S.-Madagascar, Feb. 14, 1867,

15 Stat. 491 (proclaimed Oct. 1, 1868) ............ 26, 27

viii

Treaty Between the United States and

Siam Revising Existing Treaties,

Dec. 16, 1920, 42 Stat. 1928 .................................. 29

Treaty Between the United States and the

Republic of Venezuela, Aug. 27, 1860,

12 Stat. 1143 (proclaimed Sep. 25, 1861) .............. 13

Treaty Between the United States of

America and the Empire of Japan,

U.S.-Japan, June 17, 1857, 11 Stat. 723

(ratified and proclaimed June 30, 1858) ............... 26

Treaty Between the United States of

America and the Republic of China for

the Relinquishment of Extraterritorial

Rights in China and the Regulation of

Related Matters, U.S.-China, Jan. 11, 1943,

57 Stat. 767 ............................................................ 29

Treaty of Amity, Commerce, Navigation,

and Extradition, U.S.-Hayti, Nov. 3, 1864,

18 Stat. 412 (proclaimed July 6, 1865) ................. 13

Treaty of Peace, Amity, Commerce, and

Navigation, U.S.-Korea, art. IV,

May 22, 1882, 23 Stat. 720 .................................... 29

Treaty of Peace, Amity, Commerce, and

Navigation, U.S.-Guat., Mar. 3, 1849,

10 Stat. 873 ............................................................ 28

Treaty of Peace, Friendship, Commerce,

and Navigation, U.S.-Bolivia, May 13, 1858,

12 Stat. 1003, art. XII (proclaimed 1862) ............. 28

Vienna Convention on Diplomatic Relations,

Apr. 18, 1961, 23 U.S.T. 3227................................ 23

Treatise

Joseph Story,

Commentaries on the Conflict of Laws

(1st ed. 1834) .......................................................... 21

Other Authorities

William Baude & Michael Stokes Paulsen,

The Sweep & Force of Section Three,

172 U. Pa. L. Rev. 605 (2024) .................................. 7

Biographical Directory of U.S. Congress,

Thirty-Fifth Congress: March 4, 1857 to

March 3, 1859, (House Historian 2020) ................ 28

Biographical Directory of U.S. Congress,

Thirty-Ninth Congress: March 4, 1865 to

March 3, 1867 (House Historian 2020) ................. 27

John Bouvier,

A Law Dictionary Adapted to the

Constitution and Laws of the United States

of America (1st ed. 1839) ......................................... 8

Alexander M. Burrill,

A Law Dictionary and Glossary (1860) ................... 8

Encyclopedia Virginia ............................................... 19

A.E. Keir Nash,

A More Equitable Past-Southern Supreme

Courts and the Protection of the Antebellum

Negro, 48 N.C. L. Rev. 197 (1970) ......................... 19

Henry W. Halleck,

International Law (1861) ....................................... 21

James C. Ho,

Defining “American”: Birthright

Citizenship and the Original

Understanding of the Fourteenth

Amendment, 9 Green Bag 2d 367 (2006) .............. 24

J. Cont. Cong. ............................................................ 25

Letter from Charles Hale to William H.

Seward (Oct. 22, 1864), in Foreign Relations

of the United States, 1864, Part IV,

Doc. 444 (Off. of Historian, U.S. Dep’t State) ....... 30

Press Release,

U.S. Atty.’s Off. C.D. Cal.,

Mexican National Sentenced to 23 Years

in Federal Prison for Producing, Distributing

and Possessing Child Sexual Abuse Material

(Aug. 26, 2025) ....................................................... 20

Press Release,

U.S. Atty.’s Off. S.D. Ga.,

Illegal Alien Sentenced to Life in Prison

for Murdering Whistleblower in Labor

Conspiracy (Apr. 10, 2013) .................................... 20

Press Release,

U.S. Atty.’s Off. S.D. Miss.,

Mexican National Sentenced to a Total of

44 Years for Murder and Possessing a

Firearm as an Illegal Alien (Aug. 14, 2025).......... 20

Mariya Tait Slys,

Exporting Legality: The Rise and Fall of

Extraterritorial Jurisdiction in the

Ottoman Empire and China

(Graduate Inst. Publ’ns 2014) ............................... 26

David Todd,

Beneath Sovereignty: Extraterritoriality

and Imperial Internationalism in

Nineteenth-Century Egypt,

36 L. & Hist. Rev. 105 (2018) ................................ 27

Patricia M. Wald,

Some Observations on the Use of Legislative

History in the 1981 Supreme Court Term,

68 Iowa L. Rev. 195 (1983) .................................... 11

J.J.S. Wharton,

Law-Lexicon: Or, Dictionary of

Jurisprudence (2d ed. 1860) .................................... 8

INTRODUCTION AND

INTEREST OF AMICUS CURIAE 1

This case presents a straightforward question of

constitutional interpretation: whether the Fourteenth

Amendment’s definition of citizens as including “[a]ll

persons born * * * in the United States, and subject to

the jurisdiction thereof” means what its plain and

ordinary language says, or whether it is limited by a

variety of unexpressed and unsupported conditions

and qualifications, as claimed by the President.

Notwithstanding the attempts at muddying the

waters and injecting non-textual policy concerns or

political considerations, the original public meaning of

the words and phrase “subject to the jurisdiction” of

the Unites States were well known and understood at

the time of the Fourteenth Amendment and cannot be

so easily evaded by a unilateral stroke of the

President’s pen.

Because adherence to the constitutional text and

adherence to consistent neutral methods for

interpreting that text are essential to the rule of law

and judicial legitimacy, this case is of particular

concern to amicus curiae Neutral Principles. Amicus

is a nonprofit, nonpartisan organization dedicated to

preserving and advancing coherent, consistent, and

neutral legal principles in order to promote the legal

and judicial legitimacy essential to our constitutional

system. As jurists and scholars such as Judge Bork,

1 This brief was not authored in whole or in part by counsel for

any party and no person or entity other than amicus curiae or its

counsel has made a monetary contribution toward the brief’s

preparation or submission.

Professor Wechsler, and many others before and since

have recognized, the unprincipled exercise of judicial

power in pursuit of particular results is unsustainable

and illegitimate. Since the 1980s, conservative

scholarship and jurisprudence have demonstrated

that such neutral principles can best be found in a

faithful and unbiased adherence to the original public

meaning of the text of the Constitution, and, when

necessary, relevant history and tradition that may

help resolve any ambiguities in that text. But it is

always the ratified text that comes first and takes

precedence. Past or even subsequent practice that is

inconsistent with the constitutional text cannot

supplant, expand, or limit the original public meaning

of that text.

In this case, however, the language of the

Fourteenth

Amendment

familiar

and

straightforward, the meaning of the words and

phrases well-established at the time, and the history

and tradition overwhelmingly consistent with that

plain original public meaning. Any isolated supposed

inconsistencies, alternative citizenship regimes used

in the past, potentially unanticipated outcomes, policy

arguments, or political agendas cannot be allowed to

overcome such text and consistent history without

abandoning the very neutral principles that give the

courts and the Constitution legitimacy.

SUMMARY

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

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.

ARGUMENT

This case boils down to a dispute over the

meaning of a single phrase—“subject to the

jurisdiction” of the United States—as it appears in the

first sentence of the Fourteenth Amendment. In

resolving this dispute, this Court should be guided by

neutral principles.

This Court’s recent jurisprudence has been at

pains to emphasize and reiterate that legitimate

constitutional rulings must derive from the original

public meaning of the text of the Constitution, not

from penumbras, emanations, or other Rorschach-test

manifestations of the policy views of the judicial or

even political branches. Recent cases re-focus on the

text of the Constitution, as originally and publicly

understood and, where necessary, informed by the

history and tradition that sometimes reflects (and

sometimes may circumscribe) that original public

meaning. See New York State Rifle & Pistol Ass’n, Inc.

v. Bruen, 597 U.S. 1, 22-25 (2022) (applying the text of

the Second Amendment and looking to history and

tradition to evaluate any claimed limits on the scope

of such textual commands); Kennedy v. Bremerton Sch.

Dist., 597 U.S. 507, 536 (2022) (“An analysis focused

on original meaning and history, this Court has

stressed, has long represented the rule[.]”).

This Court has emphasized that, when

interpreting the Constitution, it is “guided by the

principle that the Constitution was written to be

understood by the voters; its words and phrases were

used in their normal and ordinary as distinguished

from technical meaning.” District of Columbia v.

Heller, 554 U.S. 570, 576-577 (2008) (cleaned up). Put

another way, any reading “that renders the document

a ‘secret code’ loaded with hidden meanings

discernible only by a select priesthood * * * is

generally an unlikely one.” William Baude & Michael

Stokes Paulsen, The Sweep & Force of Section Three,

172 U. Pa. L. Rev. 605, 722 (2024).

The Original Public Meaning of the

Fourteenth Amendment’s Phrase “Subject

to the Jurisdiction” of the United States

Plainly Meant Being Answerable to this

Nation’s Laws and Courts.

Applying the neutral principles of textualism,

original public meaning, and where necessary, history

and tradition to the phrase “subject to the jurisdiction”

is not difficult: One need only unpack what the

prevailing understanding of the words “jurisdiction”

and being “subject to” such jurisdiction was around the

time the Fourteenth Amendment was drafted and

ratified. Legal dictionaries published in the 1860’s

consistently connected the word “jurisdiction” to the

authority of a court to hear a case. For example,

Bouvier defined it as the “power constitutionally

conferred upon a judge or magistrate to take

cognizance of and decide causes according to law, and

to carry his sentence into execution.” 2 Likewise,

Wharton defined it as “legal authority; extent of

power; declaration of the law.” 3 Burrill, too, defined

jurisdiction as the “[a]uthority to judge, or administer

justice; power to act judicially; power or right to

pronounce judgment,” but also noted that it can take

on a “more general sense,” namely the “power to make

law; power to legislate or govern; [or the] power or

right to exercise authority.” 4

The phrase “subject to” is a standard legal

connector that marks subordination: it means

governed by, constrained by, placed under, or made

legally liable to some identified power, rule, authority,

or condition. See, e.g., Wilkes v. Dinsman, 48 U.S. 89,

90 (1849) (equating an obligation to “comply with”

laws with being “subject to” those laws); Bank of U.S.

v. Halstead, 23 U.S. 51, 56, 61 (1825) (using the

phrases “property made subject to execution” and

“lands * * * liable to be taken and sold on execution”

interchangeably).

2 John

Bouvier, A Law Dictionary Adapted to the Constitution

and Laws of the United States of America 554 (1st ed. 1839)

(defining “jurisdiction”), https://tinyurl.com/sa2hnusf.

3 J.J.S. Wharton, Law-Lexicon: Or, Dictionary of Jurisprudence

442 (2d ed. 1860) (defining “jurisdiction”), https://tinyurl.com/

mrfpf66t. Wharton concedes that the jurisdiction of a particular

court “may be limited” by various factors, including the amount

in controversy or the subject matter of a particular case, but that

did not change the word’s underlying meaning. Id.

4 Alexander M. Burrill, A Law Dictionary and Glossary 112-113

(1860) (defining “jurisdiction”), https://tinyurl.com/4mpk7fn8.

The 39th Congress used the phrase in this way

literally hundreds of times in dozens of statutes

enacted in 1866 and 1867. 5 See, e.g., Act of March 21,

1866, ch. 38, §9, 14 Stat. 10, 11 (disabled soldiers in an

asylum remain “subject to the rules and articles of

war”); Act of April 5, 1866, ch. 25, 14 Stat. 13

(Smithsonian library “subject to the same regulations

as the library of Congress”); Act of March 2, 1867, ch.

176, 14 Stat. 517 (discharge of bankrupt individuals

was “subject to the order of the court”).

Against this legal backdrop, the original public

meaning of Section 1 of the Fourteenth Amendment

becomes clear: a person is “subject to the jurisdiction”

of the United States if they are governed by,

constrained by, placed under American judicial

process and hence “subject to” American law at the

time they were born in the United States.

Physical presence has been sufficient to establish

jurisdiction over an individual since the earliest days

of the Republic. Indeed the First Congress, as part of

the Judiciary Act of 1789, made physical presence the

hallmark of federal jurisdiction: “[N]o person shall be

arrested in one district for trial in another, in any civil

action before a circuit or district court. And no civil

suit shall be brought * * * against an inhabitant of the

5 This

includes the Civil Rights Act of 1866 which extended

citizenship to all persons born in the United States and not

subject to any foreign power. Act of April 9, 1866, ch. 31, 14 Stat.

27. (“That all persons born in the United States and not subject

to any foreign power, excluding Indians not taxed, are hereby

declared to be citizens of the United States.”). That Congress later

chose broader language for the Fourteenth Amendment

excluding such limitations is, of course, quite telling.

United States, by any original process in any other

district than that whereof he is an inhabitant, or in

which he shall be found at the time of serving the

writ.” Judiciary Act of 1789, ch. 20, §11, 1 Stat. 73, 79;

see also Picquet v. Swan, 19 F. Cas. 609, 614 (C.C.D.

Mass. 1828) (Judiciary Act “contemplates no effective

exercise of jurisdiction by the circuit court, except in

cases where the party defendant is an inhabitant of, or

found within, such district, at the time of serving the

writ”). In an early jurisdiction case, Justice John

Mashall even went as far as to say that “the principles

of equity give a court jurisdiction wherever the person

may be found,” even if the property at the heart of the

case lies in another state. Massie v. Watts, 10 U.S. 148,

158 (1810); see also Toland v. Sprague, 37 U.S. 300,

327 (1838) (limiting even attachment of a person’s

property where “defendant is domiciled abroad, or not

found within the district in which the process issues,

so that it can be served upon him”).

For better or for worse, the original public

meaning of this part of the Fourteenth Amendment

reaches almost everyone born in (and hence physically

present in) the U.S. If someone checks that box not

immunized from U.S. authority by statute, treaty, or

the like, they are definitionally a U.S. citizen—full

stop—regardless of whether their parents are from

Anchorage or Ankara, Boulder or Bordeaux, or

whether their parents have entered without

permission or overstayed their visit. While one can

debate the policy wisdom of a country granting

automatic citizenship to almost every child born

within its borders, regardless of their parentage, that

is the policy choice and balance plainly enacted by the

Constitution. It is not for the President, Congress, or

this Court to override or rebalance that constitutional

choice. See Bruen, 597 U.S. at 23.

The President resists this obvious conclusion. He

invokes legislative history to argue that “subject to the

jurisdiction” of the United States really meant “not

subject to any foreign power.” Pet.Br.18. 6 But were

that the case, the historical record would be littered

with other examples of documents written prior to

1868 that equate the two terms and use them

interchangeably. But a review of statutes, treaties,

and caselaw 7 from the decades leading up the passage

of the Fourteenth Amendment reveals that over and

over again, “subject to the jurisdiction” meant simply

being subject to the authority of courts and required to

follow the law. It did not require or imply the absence

of any further or overlapping obligations to also obey

the laws of other countries to which you are connected.

6 The President’s abuse of legislative history is worse than just

“looking out over the crowd and picking out your friends.” Patricia

M. Wald, Some Observations on the Use of Legislative History in

the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983)

(quoting Judge Harold Levanthal). Since most of the legislative

history he relies on comes from the debates from the Civil Rights

Act of 1866 not the Fourteenth Amendment, Pet.Br.17, it is more

akin to looking over the kiss cam reel of a different crowd at a

different stadium and picking out your friends.

7 See

District of Columbia v. Heller, 554 U.S. 570, 605 (2008)

(Scalia, J.) (noting that the “examination of a variety of legal and

other sources to determine the public understanding” of a phrase

in a legal text “in the period” around its enactment is “a critical

tool of constitutional interpretation.”).

Statutes

The phrase “subject to the jurisdiction” appeared

in three statutes passed by Congress during the two

decades leading up to the ratification of the

Fourteenth Amendment, with the latter two being

passed by the very same Congress that proposed the

Fourteenth Amendment. The first was an 1848 statute

regulating the recovery of goods from wrecked ships

“sunk in any river, harbor, bay, or waters, subject to

the jurisdiction of the United States.” Act of March 3,

1841, 5 Stat. 609. The other two both regulated

steamships, imposing navigation laws and safety

standards on “all vessels navigating the bays, inlets,

rivers, harbors, and other waters of the United

States.” Act of July 25, 1866, ch. 234, §9, 14 Stat. 227,

228; Act of February 25, 1867, ch. 83, 14 Stat. 412.

Both laws, however, exempted those ships “subject to

the jurisdiction of a foreign power and engaged in

foreign trade” unless they were “owned in whole or in

part by a citizen of the United States.” Ibid. Of course,

the recognition that the United States could

regulate—i.e., exercise jurisdiction over—vessels in its

waters even where such vessels were also subject to

the jurisdiction of a foreign power, is lethal to the

President’s argument. The statutory text reflects a

contemporary understanding that being subject to the

jurisdiction of the United States is not incompatible

with overlapping foreign jurisdiction over persons and

vessels. One can simply be subject to both, and

jurisdiction need not be exclusive. Indeed, crimes and

torts committed on any “ship or vessel, belonging to

any citizen or citizens of the United States,” even one

subject to the jurisdiction of a foreign power, as

contemplated in the statute above, had been

“cognizable and punishable” by American courts since

at least 1825. Act of March 3, 1825, ch. 65, 4 Stat. 115.

Treaties between the United States and

foreign nations

A number of bilateral treaties ratified by the

United States prior to the Fourteenth Amendment

include the phrase “subject to the jurisdiction” in ways

that illustrate the non-exclusivity of jurisdiction.

For example, the 1860 treaty with Venezuela

stated that the “citizens of the contracting parties

shall * * * be at liberty to manage themselves their

own business, subject to the jurisdiction of either

party[.]” 8 The same was true of the 1864 treaty with

Hayti 9 and the 1867 treaty with the Dominican

Republic. 10 These treaties explicitly envision dual

jurisdiction and legal authority over persons. An

American living in Caracas or Porta Prince could still

be tried in American courts for treasonous acts or

other violations of U.S. law, even while being “subject

to the jurisdiction” of the country he was physically

located in for local crimes, torts, or contractual

enforcement.

8 Treaty

Between the United States and the Republic of

Venezuela, Aug. 27, 1860, 12 Stat. 1143, 1144-1145 (proclaimed

Sep. 25, 1861), https://tinyurl.com/4sfcpdcx.

9 Treaty of Amity, Commerce, Navigation, and Extradition, U.S.-

Hayti, Nov. 3, 1864, 18 Stat. 412, 413 (proclaimed July 6, 1865),

https://tinyurl.com/yasvfasb.

10 General

Convention of Amity, Commerce, Navigation, and

Extradition, U.S.-Dom. Rep., Feb. 8, 1867, 15 Stat. 473

(proclaimed Oct. 24, 1867), https://tinyurl.com/nhzud7ky.

Caselaw

Finally, the phrase “subject to the jurisdiction”

appears over and over again in caselaw from this era.

Using Westlaw, we reviewed every single federal or

state judicial opinion using the phrase that was issued

between January 1, 1860 and June 12, 1866—the day

before the Fourteenth Amendment was approved by

Congress and sent to the states for ratification. This

search identified seventy-four instances 11 of the

phrase appearing in sixty-eight opinions from thirtyone jurisdictions across twenty-two states. 12 Despite

being written by a multitude of different judges, the

opinions employed the phrase in a remarkably

consistent fashion. 13 In 98.6% of the usages, it referred

to the right of some government entity to exercise

authority over particular people, property, land,

money, or subjects. 14 Of these approximately 65%

were explicitly invoking the authority of the courts.

Several of the cases reviewed specifically discuss

parties who are subject to multiple jurisdictions at the

same time, Huggins v. People, 29 Ill. 241 (1862); Kelly

11 This

includes close variations such as “subject to its

jurisdiction,” “subject to our jurisdiction,” “subject to federal

jurisdiction,” etc.

12 The

search returned an additional eleven cases where the

phrase “subject to the jurisdiction” appeared, but outside the

published opinion (i.e. in summaries, headings, etc.).

13 Our

analysis of each case

https://tinyurl.com/4m5556dn.

can

accessed

14 The only exception was Polar Star Lodge v. Polar Star Lodge,

16 La. Ann. 53 (1861), an 1861 case out of the Louisiana Supreme

Court which suggested that a particular masonic lodge might be

“subject to the jurisdiction and visitorial power” of another lodge.

v. Crapo, 41 Barb. 603 (N.Y. Sup. Ct. 1864); Todd v.

Kerr, 42 Barb. 317 (N.Y. Sup. Ct. 1864), with the

Pennsylvania Supreme Court going as far as to say

that it was only “[t]houghtless men [who] sometimes

allege that people cannot be subject to two

sovereignties.” Fifield v. Insurance Co. of Pa., 47 Pa.

166, 171 (1864). While most of these cases involved

different states or disputes about federal versus state

jurisdiction, in Whitford v. Panama Railroad Co., 23

N.Y. 465 (1861), the New York Court of Appeals

alluded to the “practice which universally prevails, by

which the courts of one country entertain suits in

relation to causes of action which arise in another

country, when the parties come here so as to be made

subject to their jurisdiction.” Id. at 471 (emphasis

added). In such instances, foreign nationals invoked

the jurisdiction of American courts to bring claims

under foreign law without forsaking their foreign

citizenship. See, e.g., United States v. Percheman, 32

U.S. 51, 54-55, 86-89 (1833) (Spanish subject litigating

in U.S. court to confirm title “by virtue of a grant from

the Spanish governor” in Spanish Florida.”).

In addition, and notwithstanding the President’s

attempted

conflation

“jurisdiction”

with

“allegiance,” discussions of allegiance were almost

completely absent. The word allegiance appeared in

only four of the seventy-four cases, and was tied to the

discussion of jurisdiction in only two.

Those two cases do not provide the President

much support either. In Lawrence v. Smith, the

Superior Court of Judicature of New Hampshire

recognized that jurisdiction can be conferred by either

a duty of allegiance or physical presence, with neither

negating the other. 45 N.H. 533, 536 (1864)

(jurisdiction of political entities can be exercised over

persons “owing them allegiance” or “subject to their

jurisdiction by being found within their limits.”) The

existence of either condition was sufficient to confer

jurisdiction; a combination of both was not necessary.

The same is true of The Prize Cases, 67 U.S. (2 Black)

635, 674 (1863), where the Court expressly recognized

the possibility of multiple, overlapping allegiances and

jurisdictions. 15

*****

In sum, the linguistic evidence is consistent and

compelling: at the time the Fourteenth Amendment

was written and ratified, the phrase “subject to the

jurisdiction” simply meant being answerable to the

judicial and legislative power and authority of a

government entity. It did not—and often could not—

mean “not subject to any foreign power.” Children born

on American soil to foreign parents who are either

15 That a government can often exercise its jurisdiction beyond its

territorial borders confirms that overlapping jurisdiction is

indeed possible. See, e.g., U.S. Const. art. I, §8 (Congress’s power

to “define and punish Piracies and Felonies committed on the

high Seas,” which cases may be heard in federal courts). While

this case focuses on territorial jurisdiction as the basis for

citizenship of persons “born in the United States,” persons “born”

outside the United States but still subject to its jurisdiction would

need to rely on a statute naturalizing them from the moment of

birth. One could thus be a “natural born citizen” for Presidential

qualification purposes even if not “born” in the United States by

virtue of immediate statutory naturalization that is triggered by

birth to U.S. citizens. Naturalization Act of 1790, ch. 3, 1 Stat.

103, 104. (“[T]he children of citizens of the United States that

may be born beyond sea, or out of the limits of the United States,

shall be considered as natural born citizens[.]”).

here illegally or on temporary visas are therefore

citizens per the Fourteenth Amendment unless for

some reason, such as diplomatic immunity, they were

not subject to American courts and American laws

when they were born.

II. Adding the Atextual Requirement of No

Foreign Allegiance to Limit “Subject to the

Jurisdiction” of the United States Conflicts

with the Long History and Tradition of

Courts Hearing Cases Involving Parties

with Limited or No Allegiance to the United

States.

From the very beginning, American courts have

exercised jurisdiction over individuals who were

“subject to [a] foreign power” or who owed little or no

political allegiance to the United States, such as aliens

and slaves.

Aliens. One of the earliest actions taken by the

First Congress was to grant federal courts jurisdiction

over suits involving foreigners (and hence over the

foreign parties themselves). The Judiciary Act of 1789

gave the federal “circuit courts * * * original

cognizance, concurrent with the courts of the several

States, of all suits of a civil nature at common law or

equity where * * * an alien is a party.” Judiciary Act of

1789, ch. 20, 1 Stat. 73, 78. There is no shortage of

cases—stretching back to the earliest days of our

Constitutional system—that fall in this bucket, even

though none of the aliens involved owed their so-called

“primary allegiance” to the United States. See, e.g.,

Bradstreet v. Thomas, 37 U.S. 59 (1838) (alien land

claimant); Mayor of New York v. Miln, 36 U.S. 102

(1837) (foreign ship captain challenging the

constitutionality of a New York immigration law);

Fisher v. Consequa, 9 F. Cas. 120 (C.C.D. Pa. 1809)

(breach of contract claim against Hong merchant).

Nor is it difficult to find cases where the courts

exercised criminal jurisdiction over foreigners during

this same time period. See, e.g., United States v.

Randolph, 27 F. Cas. 709 (C.C.W.D. Pa. 1853)

(prosecution of British subject for forgery of a

counterfeit citizenship certificate); United States v.

Malebran, 26 F. Cas. 1145 (C.C.D.N.Y. 1820)

(prosecution of foreigner for outfitting a slave ship).

This includes cases where the criminal defendant was

not even a resident, but instead here temporarily,

United States v. Ravara, 2 U.S. 297 (C.C.D. Pa. 1793)

(misdemeanor prosecution of Frenchman here on

business).

Slaves. A similar story plays out with respect to

slaves. While the Dred Scott decision asserted that

slaves “owe[d] allegiance to the Government” by virtue

of being “born in the country,” like so much in that

opinion, such a proposition is obviously a farce. Dred

Scott v. Sandford, 60 U.S. (19 How.) 393, 420 (1857). 16

It defies logic to assume that any country that allows

individuals to be subject to the cruelty of slavery has

16 And even were such reasoning true, it identifies the source of

such allegiance as the child’s birth within the country itself,

regardless of whether the kidnapped, trafficked, and enslaved

parents were born here or owed allegiance elsewhere. The U.S.born children of unlawfully present aliens who chose to be here

would have a far better likelihood of and claim to imputed

allegiance to their country of birth than the children of slaves

destined for their own slavery.

claim on their allegiance, as opposed to simply

exercising power over them. Whatever bearing the

supposed allegiance of slaves may have had on the

elements of a charge for treason, see Billy (fl. 1770s1780s), Encyclopedia Virginia (Dec. 22, 2021),

https://tinyurl.com/nhzaddhm

(discussing

cases

addressing the allegiance of a slave as a predicate for

treason charges), it is important to note that in none

of the cases involving the allegiance of slaves was the

court’s ultimate jurisdiction over the person ever

questioned. The question of allegiance—if it arose at

all—went to the elements of a crime such as treason,

not the authority of the court to decide the matter. And

the prosecution of slaves was not limited to treason in

times of war and rebellion. Prior to the passage of the

Thirteenth Amendment, state and federal courts

routinely tried slaves for all sorts of crimes: murder,

larceny, forgery, rape, etc. 17

Present Day. One great irony in this case is that

while the President’s theory of jurisdiction conflicts

with this nation’s history and tradition, his exercise of

jurisdiction does not. Under this administration (and

all others before it), undocumented immigrants are

routinely indicted, tried and convicted in federal

17 See, e.g., United States v. Amy, 24 F. Cas. 792 (C.C.D. Va. 1859)

(Taney, C.J.) (explicitly rejecting the argument that federal

courts do not have jurisdiction over cases against slaves and

upholding the conviction); United States v. Clark, 2 Cranch C.C.

620 (C.C.D.C. 1825) (finding slave guilty of manslaughter); A.E.

Keir Nash, A More Equitable Past-Southern Supreme Courts and

the Protection of the Antebellum Negro, 48 N.C. L. Rev. 197 (1970)

(collecting state cases).

courts. 18 In the last three weeks alone, the President’s

own Justice Department has trumpeted the

convictions of illegally present aliens for a variety pack

of lurid crimes. Yet, according to the President in this

case, none of those men—men he put behind bars—

were “subject to the jurisdiction” of the United States

to begin with if they were, as he claims, also “subject

to a foreign power.” And therein lies the rub. If he is

right, the government’s prosecution of such aliens is

either completely extra-jurisdictional and illegal, or,

against all evidence of language and history, the

prosecution of crime and enforcement of law is not part

of the sovereign’s exercise of its jurisdiction at all.

Both options are absurd. It is far more coherent to

conclude the these criminals were and are still “subject

to the jurisdiction” of the United States simply by

virtue of their presence here. That doesn’t mean they

owed “their primary allegiance” to the Red, White, and

Blue. It doesn’t mean they are not subject to a foreign

power. It just means—as it has for the last 250 years—

that they are subject to our laws and subject to our

courts because there are here and do not have preexisting immunity. The President’s own prosecutorial

record thus suggests that even he and his Justice

18 See, e.g., Press Release, U.S. Atty.’s Off. S.D. Miss., Mexican

National Sentenced to a Total of 44 Years for Murder and

Possessing a Firearm as an Illegal Alien (Aug. 14, 2025),

https://tinyurl.com/3u4amudv; Press Release, U.S. Atty.’s Off.

C.D. Cal., Mexican National Sentenced to 23 Years in Federal

Prison for Producing, Distributing and Possessing Child Sexual

Abuse Material (Aug. 26, 2025), https://tinyurl.com/tk5jn7x7;

Press Release, U.S. Atty.’s Off. S.D. Ga., Illegal Alien Sentenced

to Life in Prison for Murdering Whistleblower in Labor

Conspiracy (Apr. 10, 2013), https://tinyurl.com/wuwau8wj.

Department do not actually view their jurisdictional

arguments seriously or consistently. And falling prey

to such arguments would be the antithesis of applying

neutral principles.

III. Jurisdiction Over Persons Physically

Present in the Geography of a Nation Is the

Default Condition Unless Statute, Treaty, or

Common Law Specifically Exempted and

Immunized them from United States Laws

and Courts.

The territorial basis for a nation’s jurisdiction

over persons within its territory was well-understood

at the time of the Fourteenth Amendment. In his

Commentaries on the Conflict of Laws, Justice Story

explained, “[E]very nation possesses an exclusive * * *

jurisdiction within its own territory.” 19 As a result, “the

laws of every state affect, and bind directly * * * all

persons who are resident within it, whether natural

born subjects, or aliens.” H.W. Halleck asserted the

same, explaining in his 1861 treatise on international

law that outside of a few narrow exceptions discussed

below “all persons found within the limits of a

government * * * whether their residence is permanent

or temporary, are subject to its jurisdiction.” 20

The President and his amici attempt to dilute the

meaning of “subject to the jurisdiction” of the United

States by invoking familiar edge-case exclusions from

U.S. citizenship for children born to ambassadors and

19 Joseph Story, Commentaries on the Conflict of Laws §18 (1st

ed. 1834).

20 Henry W. Halleck, International Law 164 (1861).

children born to invading armies. Those examples,

however, ignore that the basis for such exclusions is

not a hidden narrowing of what it meant in the 1800s

to be subject to the jurisdiction of the United States.

Rather, it was a function of well-established

relinquishments of ordinary legal and judicial

authority over such persons and their children.

Accordingly, such examples are consistent with what

it means to be subject to (or inversely immunized or

exempt from) a country’s jurisdiction.

The

children

diplomats

are

specifically exempted from jurisdiction

through the Vienna Convention on

Diplomatic

Relations

and

Congressional statutes.

In the earliest days of the Republic, foreign

diplomats were “subject to the jurisdiction” of the

United States: “the judicial power [of the United

States] shall extend * * * to all Cases affecting

Ambassadors, other public Ministers and Consuls.”

U.S. Const. art. III, §2. The First Congress, however,

clarified the limits of such jurisdiction in the Judiciary

Act of 1789, which limited such suits to those

“consistent[] with the law of nations.” Judiciary Act of

1789, ch. 20, 1 Stat. 73. This qualifier was important

because the international principles known as the law

of nations were not self-executing. Indeed, under the

Constitution it fell to Congress to “define and punish

* * * Offences against the Law of Nations.” U.S. Const.

art. II, §8.

The following year, Congress codified diplomatic

immunity law as part of the Crimes Act of April 30,

1790. It made all forms of legal process, in any state or

federal court, against “any ambassador or other public

minister of any foreign prince or state” or member of

their households “utterly null and void to all intents,

construction and purposes whatsoever.” Act of April

30, 1790, ch. 9, §25, 1 Stat. 112, 117. It was this

statute—not a set of ephemeral principles drawn from

the ether—that exempted foreign diplomats (and their

children) from being “subject to the jurisdiction”—i.e.,

the courts and laws of the United States—when the

Fourteenth Amendment was drafted and ratified. And

it was therefore this statute that deprived the children

born to diplomats in the United States of birthright

citizenship once the Amendment was ratified. 21

This portion of the Crimes Act remained good law

for almost two-hundred years, until it was repealed

and replaced by the Diplomatic Relations Act of 1978,

Pub. L. No. 95-393, 92 Stat. 808, which complemented

and implemented the provisions of the Vienna

Convention on Diplomatic Relations of 1961, a

multilateral treaty the Senate ratified in 1972. 22 It

granted to members of all diplomatic missions to the

United States and their families immunity from all

“criminal

jurisdiction”

and

all

“civil

and

administrative jurisdiction” outside a few very narrow

exceptions. Thus today, as in 1868, it is positive law—

a treaty and statute—that prevent children of foreign

It is the very interplay of the “subject to the jurisdiction”

condition and the legal exemption from such jurisdictions that

explains the non-citizenship of diplomatic progeny.

22 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23

U.S.T. 3227

diplomats born in the United States from inheriting

birthright citizenship.

Specific statutes—in addition to the

common law—treat enemy combatants

as outside the jurisdiction of American

courts.

Much has already been written by others about

why the children born on American soil to enemy

combatants are not “subject to the jurisdiction” of the

United States. See, e.g., James C. Ho, Defining

“American”: Birthright Citizenship and the Original

Understanding of the Fourteenth Amendment, 9 Green

Bag 2d 367, 370-372 (2006). Part of it is the very

nature of war, which this Court has long recognized is

not the exercise of authority under law, but “the

exercise of force by the bodies politic, against each

other, for the purpose of coercion.” The Prize Cases, 67

U.S. at 652. As such, war “ignores jurisdiction, [as well

as] penalties and crimes.” Id.; see also Fairfax’s

Devisee v. Hunter’s Lessee, 11 U.S. 603, 620 (1812)

(“During the war, the property of alien enemies is

subject to confiscation jure belli, and their civil

capacity to sue is suspended”); Wilcox v. Henry, 1 U.S.

(1 Dall.) 69, 71 (Pa. 1782) (“An Alien enemy has no

right of action whatever during the war.”); Crawford

v. The William Penn, 6 F. Cas. 778 (C.C.D.N.J. 1815)

(Washington, J.) (“The general rule of the common law

of England is, that an alien enemy cannot maintain an

action in the courts of that country, during the war, in

his own name.”).

But positive law also plays a role. Before the

Declaration of Independence was even drafted, the

Continental Congress passed a resolution regulating

the treatment of captured enemy soldiers, as well as

“their women and children.” IV J. Cont. Cong. 369-372.

They were to be treated as “prisoners.” No due process

or habeas corpus was mentioned. A related law was

passed during the War of 1812. Act of July 6, 1812,

ch. 128, 2 Stat. 777. Such statutes incorporated

principles from the law of war and put enemy

combatants (and their offspring) firmly outside the

judicial system.

These statutes and the backdrop of the common

law make clear that any child born to an enemy

combatant on American soil would not “be subject to

the jurisdiction” of American courts, and therefore not

eligible for birthright citizenship. But merely being

physically present in the United States in violation of

its immigration laws is a far cry from being an enemy

combatant during wartime. And the United States is

more than content to continue exercising civil and

criminal jurisdiction over illegally present aliens and

their U.S.-born progeny.

At the time of the Fourteenth

Amendment, nations could and did give

up jurisdiction over groups of foreign

nationals by treaty.

Diplomatic practice during the 19th Century

provides a third example of how through positive law

a nation can cede otherwise existing of jurisdiction

over a particular class of foreigners dwelling within its

borders: the doctrine of extraterritoriality. At the time

of the Fourteenth Amendment, western nations

frequently negotiated for “extraterritorial” rights

through treaties with nations in Asia, Africa, and the

Middle East. This meant that the citizens of the

western nation (whether attached to the diplomatic

mission or not) “were largely exempted from the

application of local laws” as well as the authority of

local courts. Mariya Tait Slys, Exporting Legality: The

Rise and Fall of Extraterritorial Jurisdiction in the

Ottoman Empire and China (Graduate Inst. Publ’ns

2014), https://tinyurl.com/2d9d8mye. Any serious

crimes—as defined by their home country—as well as

civil lawsuits would be tried instead by “consular

courts” within the embassy.

On the eve of the Fourteenth Amendment, the

United States had negotiated such partial or complete

extraterritoriality agreements with at least eleven

nations, including, inter alia: Japan (1857) and

Madagascar (1867). 23 The treaty with Japan was

perhaps the most explicit, stating clearly that

“Americans, committing offences in Japan, shall be

tried by the American Consul General or Consul, and

shall be punished, according to American Laws.” 24

Likewise, the treaty with Madagascar provided that

“In regard to civil rights, however, whether of person

or property, of American citizens, or in cases of

criminal offences, they shall be under the exclusive

civil and criminal jurisdiction of their own consul only,

23 Treaty Between the United States of America and the Empire

of Japan, U.S.-Japan, June 17, 1857, 11 Stat. 723 (ratified and

proclaimed June 30, 1858), https://tinyurl.com/5at9j6ps; Treaty

Between the United States of America and the Queen of

Madagascar, U.S.-Madagascar, Feb. 14, 1867, 15 Stat. 491

(proclaimed Oct. 1, 1868), https://tinyurl.com/5fpkmd64.

24 U.S.-Japan Treaty, supra note 22.

duly invested with the necessary powers.” 25 These

provisions were also common in treaties negotiated by

Great Britain and France. See David Todd, Beneath

Sovereignty:

Extraterritoriality

and

Imperial

Internationalism in Nineteenth-Century Egypt, 36 L. &

Hist. Rev. 105 (2018), https://tinyurl.com/y9avzrhk.

There are good reasons to believe that the drafters

of the Fourteenth Amendment understood the

doctrine of extraterritoriality. For starters, they were

familiar with the consular court system existing at the

time. Less than a month and a half after they passed

the joint resolution proposing the Fourteenth

Amendment, the same Congress passed an

appropriations bill that included specific line items for

consular courts in Siam, Japan, China, and Turkey.

Act of July 25, 1866, ch. 233, 14 Stat. 224. And this

was not the first time. Bills related to the consular

court system had been passed by each of the previous

three Congresses. See, e.g., Act of January 24, 1865,

13 Stat. 422; Act of January 13, 1865, 13 Stat. 421; Act

of June 20, 1864, ch. 136, 13 Stat. 137; Act of February

12, 1863, 12 Stat. 648; Act of February 4, 1862, 12 Stat.

335; Act of June 22, 1860, ch. 179, 11 Stat. 72.

Additionally, nine of the Senators who voted on

the Fourteenth Amendment had also been part of the

Senate in 1857 when they ratified the extraterritorial

treaty with Japan. 26 This group included many of the

25 U.S.-Madagascar Treaty, supra note 22.

26 Compare

Biographical Directory of U.S. Congress, ThirtyNinth Congress: March 4, 1865 to March 3, 1867 (House

Historian 2020), https://tinyurl.com/49f9m6y4 with Biographical

Directory of U.S. Congress, Thirty-Fifth Congress: March 4, 1857

key figures in the debates over the Amendment

including Lyman Trumbull, James R. Doolittle,

Charles Sumner, and Benjamin Wade. Likewise, the

vast majority of the Senators who were in the 39th

Congress were still in the Senate the following year

when they ratified the extraterritorial treaty with

Madagascar. 27

There is also the fact that many other treaties

entered into by the United States did not include

extraterritorial rights for Americans abroad. They

instead contained provisions explicitly “leaving open

and free” the “tribunals of justice” of both countries to

the “citizens of each other” for “their judicial recourse,

on the same terms which are usual and customary

with the natives of that country.” See, e.g., Bolivia

(1862), Ecuador (1853), Guatemala (1852). 28 But

what’s striking is that in each case, these provisions

immediately followed a “subject to the jurisdiction”

clause.

Subsequent history more explicitly demonstrates

the interplay between consular jurisdiction on the one

hand and being “subject to the jurisdiction” of another

country on the other. For example, the 1882 treaty

to March 3, 1859, (House Historian 2020), https://tinyurl.com/

kbbpw83h.

28 Treaty of Peace, Friendship, Commerce, and Navigation, U.S.-

Bolivia, May 13, 1858, 12 Stat. 1003, art. XII (proclaimed 1862),

https://tinyurl.com/yzwna9cs; Treaty of Peace, Amity, Commerce,

and Navigation, U.S.-Guat., Mar. 3, 1849, 10 Stat. 873, art. XII,

https://tinyurl.com/ycytu3sa.

with the Kingdom of Chosen (modern day Korea)29

also contained an extraterritorial provision, but

included a further provision for the lapse of such

extraterritoriality:

[W]henever the King of Chosen shall have so far

modified and reformed the statutes and judicial

procedure of his kingdom that, in the judgment

of the United States, they conform to the laws

and course of justice in the United States, the

right of extraterritorial jurisdiction over United

States citizens in Chosen shall be abandoned,

and thereafter United States citizens, when

within the limits of the Kingdom of Chosen,

shall be subject to the jurisdiction of the native

authorities.

Later treaties explicitly abrogating the United States’

extraterritorial claims also used “subject to the

jurisdiction” language to do so. For example, the 1920

treaty with Siam made Americans in that country

“subject to the jurisdiction of Siamese Courts,” 30 and

the 1946 treaty with China stated that Americans

there would now “be subject to the jurisdiction of the

Government of the Republic of China.” 31

29 Treaty of Peace, Amity, Commerce, and Nav., U.S.-Korea, art.

IV, May 22, 1882, 23 Stat. 720, 721-22, https://tinyurl.com/

56ueyzxm.

30 Treaty Between the United States and Siam Revising Existing

Treaties, Dec. 16, 1920, 42 Stat. 1928, https://tinyurl.com/

2pzbxnbj.

31 Treaty Between the United States of America and the Republic

of China for the Relinquishment of Extraterritorial Rights in

China and the Regulation of Related Matters, U.S.-China, Jan.

11, 1943, art. I, 57 Stat. 767, 768, https://tinyurl.com/y2wddahf.

While the United States has never granted

another country the right to exercise extraterritorial

jurisdiction within our borders, treaties in the other

direction reflect the consistent public use and meaning

of the phrase “subject to the jurisdiction of” a

governmental body. While granting exemptions to the

jurisdiction of the United States would seem

spectacularly imprudent, 32 it is one of the few paths to

narrowing the jurisdiction of the United States over

persons born here, and hence limiting, consistent with

the constitutional text, who is eligible for birthright

citizenship.

*****

In this case the United States had not and has

not ceded jurisdiction over illegally present aliens or

their children. The category of persons at issue in this

case were thus born here subject to the jurisdiction of

the United States and thus are U.S. citizens. If the

United States truly wanted to alter that outcome

prospectively for persons not yet born, it could do so.

As the examples above show, through statutes or

treaties the government can divest itself of jurisdiction

over certain classes of foreigners if it is willing to bear

the consequences of such divestment.

32 A letter received by the Secretary of State from the America’s

Consulate General in Egypt just two years before the Fourteenth

Amendment was proposed shows why this is the case. He noted

that 1/3 of the 150,000 inhabitants of Alexandria were foreigners

“excepted from the operation of the local laws” through

extraterritorial treaties, making a “proper municipal

government” impossible. Letter from Charles Hale to William H.

Seward (Oct. 22, 1864), in Foreign Relations of the United States,

1864, Part IV, Doc. 444 (Off. of Historian, U.S. Dep’t State),

https://tinyurl.com/yhdrd9mm.

Such actions, of course, would come at a great

cost. It would mean that those foreigners present in

our country would be immune from American law. It

would prevent the government from prosecuting and

punishing the very cartels, murderers, sex traffickers,

and other sundry criminals that seem to have taken

up so much of its energy and attention. While

Congress and the President together could

theoretically narrow the class of persons subject to the

jurisdiction of the United States, and hence the

persons who might give birth to U.S. Citizens under

the Fourteenth Amendment, they have not done so

yet. The President cannot unilaterally redefine

jurisdiction over persons present in the United States

for one purpose while maintaining its historic

meaning for other purposes that suit him. The

Constitution has established the conditions for and

definition of citizenship. The consequence of

jurisdiction over persons is that their U.S. born

offspring will be citizens. It cannot be undone or

avoided merely because the President disagrees with

the balance struck in the Fourteenth Amendment.

CONCLUSION

For the reasons stated above, this Court should

affirm the decision of the District of New Hampshire

and declare

the President’s Executive

unconstitutional violation of the Fourteenth

Amendment.

Respectfully submitted,

ERIK S. JAFFE

Counsel of Record

JAMES A. HEILPERN

HANNAH C. SMITH

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

Telephone: (202) 787-1060

ejaffe@schaerr-jaffe.com

FEBRUARY 26, 2026

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.