Is "Subject to the Jurisdiction Thereof" a General Principle or a Term of Art? Does It Matter?

There was a curious apparent methodological reversal during yesterday's oral argument in Trump v. Barbara. At one point, Justice Alito asked ACLU National Legal Director Cecillia Wang, arguing for the plaintiffs/respondents, the following question:

When particular problems pop up, lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule, or do we say they adopted a general rule, they meant for that to apply to later applications that might come up?

Later, Justice Barrett asked a version of the same question, and Justice Kavanaugh referred to it. I think Justices Barrett and Kavanaugh are unlikely to side with the Trump administration in this case but that Justice Alito is very likely to do so. The rest of his questioning made clear that he thinks that, at least when it comes to the meaning of "subject to the jurisdiction thereof" in the Fourteenth Amendment's Citizenship Clause, the answer is that the general rule applies also to later applications that might come up. Under this view, the Wong Kim Ark Court's list of people to whom the exception applies--the common law exceptions to jus soli for foreign sovereigns, ambassadors, warships, and occupying armies, plus children born into Native American Tribes--would be non-exhaustive. If we today face a new situation that falls within the general language of the exception, it too falls within that exception.

As Justice Kagan pointed out during the argument, this move can be at most partially successful. Although illegal immigration as we now understand it did not exist in the 19th century, the phenomenon of children being born to non-citizens who were transient visitors certainly did. I'm going to bracket that concern, however, for two reasons. First, the Trump administration has a different argument with respect to transient visitors: SG John Sauer contends that Wong Kim Ark was long understood as not conferring citizenship on them. I think he's wrong about that, but never mind for now, because second, I want to focus on the jurisprudential issue that is broader than this case.

My initial point is that we see in the dynamics of Justice Alito's question at least a superficial reversal of what we ordinarily expect as an ideological matter. Typically it is the conservatives who say that some constitutional phrase should be confined to what the framers and ratifiers understood it to cover, while liberals say that it should be construed to cover new circumstances as well.

However, that is a superficial reversal. In his initial question, Justice Alito invoked Justice Scalia for the proposition that conservatives can be good textualists/originalists while still giving effect to language in circumstances beyond those originally envisioned. He gave the example of a statute forbidding theft enacted long before the invention of microwave ovens. Nonetheless, Justice Alito said (that Justice Scalia said), obviously the statute applies to the theft of a microwave oven. So maybe there's no ideological reversal here after all. Maybe everyone believes that general language can encompass examples beyond those envisioned by the enactors.

Maybe, but also maybe not. After all, when Justice Gorsuch, writing for the Court in Bostock v. Clayton County, ruled that discrimination "based on . . . sex" as used in Title VII of the 1964 Civil Rights Act encompasses discrimination based on sexual orientation and transgender status, Justice Alito dissented, going so far as to accuse the majority of flying the flag of textualism even while committing the cardinal textualist sin of "'updat[ing]' [an] old statute[] so that [it] better reflect[s] the current values of society." So maybe Justice Alito is a hypocrite after all.

If so, are the liberals also hypocrites for their mirroring reversal? Why do they think that in just this one case a general phrase--"subject to the jurisdiction thereof"--is limited to what it meant at the time of the language's adoption?

I want to offer two means of resolving the puzzle.

First, I'll grant that it is often true that general constitutional language properly encompasses examples beyond those contemplated by its drafters and ratifiers. "Freedom of speech" includes emails and text messages. "Unreasonable searches" includes thermal imaging. Etc. However, not all seemingly general language is best understood as timeless general language. In some circumstances, what looks like timeless general language may be a term of art.

Consider the provision of Article III, Section 2, describing cases falling within the Supreme Court's original jurisdiction to include "all cases affecting ambassadors [and] other public ministers and consuls . . . ." The phrase "other public ministers and consuls" naturally covers U.S. government officials. However, as the Supreme Court tersely held a century ago in Ex Parte Gruber, the phrase applies only to foreign officials.

Or consider the view expressed by the majority in United States v. Stevens about the categories of unprotected speech such as fighting words, obscenity, and so forth. The Court described these as historically rooted exceptions. The theory seems to be that when the framers and ratifiers of the First Amendment decided to protect "the freedom of speech," they meant to protect speech subject to the exceptions then widely known and accepted but subject only to those categorical exceptions. Thus, new justifications for treating a category as unprotected are out of bounds.

To be clear, I don't think that's an accurate account of the prior cases involving unprotected categories. My point isn't that Stevens is right in this respect, but that the notion of constitutional language incorporating (either expressly or implicitly) known applications and exceptions but not future ones is a conceptual possibility that has been recognized in the Supreme Court's cases.

Accordingly, it is entirely possible that the original public meaning of the Fourteenth Amendment's phrase "subject to the jurisdiction thereof" covers exactly the exceptions known at the time and nothing else.

But second, even if that's not so--even if Justice Alito is correct that the phrase "subject to the jurisdiction thereof" could give rise to examples unknown in 1868 or 1898 (when Wong Kim Ark was decided)--the language should be unavailing to the Trump administration. That's because, as the respondents argue, the theory of all of the exceptions is that they refer to people and places that are conceptualized as extraterritorial even when they are physically present within the territory of the United States. The point is made very effectively in the amicus brief of Professor Akhil Amar.

Thus, even if there can be new applications of a principle embodied in the general language of "subject to the jurisdiction thereof," that principle would not encompass children born to undocumented immigrants or transient visitors because they do not implicate a principle of foreign sovereign bubbles within the territory of the United States. Justice Alito's question, though interesting as a general jurisprudential matter, is irrelevant to the outcome of this case.

-- Michael C. Dorf