« John McGinnis on Originalism, Stare Decisis and Justice Kavanaugh
Michael Ramsey
| Main | What's Excessive?
Michael Ramsey »


An Additional Source on Jurisdiction and Birthright Citizenship
Michael Ramsey

On the meaning of "subject to [U.S.] jurisdiction" in the first sentence of the Fourteenth Amendment, I came across this source via a colleague writing on a different matter.  Service of Process on a British Ship-of-War, 1 Op. Atty Gen. 87, 88 (1799) (opinion of Charles Lee): 

It may be assumed, as a doctrine perfectly and incontrovertibly established, that the judicial power of a nation extends to every person and every thing in its territory, excepting only such foreigners as enjoy the right of extraterritoriality, and who, consequently, are not looked upon as temporary subjects of the State. ‘The empire, united to the domain, establishes the jurisdiction of the nation in its territories or the country that belongs to it. It is that, or its sovereign, who is to exercise justice in all the places under his obedience, to take cognizance of the crimes committed, and the differences that arise in the country.’—Vattel, b. 2, sec. 84. ‘When a nation takes possession of certain parts of the sea, it enjoys the empire as well as the domain, for the same reason we have alleged in treating of land. These parts of the sea are within the jurisdiction or the territory of the nation; the sovereign commands there; he makes laws, and may punish those who violate them; in a word, he has the same rights there as on land, and, in general, all those given him by the law of the State.’—Vattel, b. 1, sec. 295.
‘In general, all the rights which relate to the internal government belong absolutely to the sovereign, and extend to every person and every thing in the territory.’—Martens, b. 3, ch. 3, sec. 1. ‘The supreme police extends to every person and every thing in the territory: foreigners are subject to it, as well as the subjects of the State, excepting only such foreigners as enjoy the right of extraterritoriality, and who, consequently, are not looked upon as temporary subjects of the State.’—Idem, sec. 3, p. 85. ‘One of the most essential rights in the hands of the sovereign, is the judiciary power. It extends indiscriminately to all who are in the territory, and the sovereign only is the source of it; but it must be remembered that there are persons whose extraterritoriality exempts them from this jurisdiction, such as foreign princes and their ministers, with their retinue.’—Idem, sec. 19, p. 102.
This use of the concept of jurisdiction is consistent with the way jurisdiction is discussed in later authorities such as Henry Wheaton's treatise and Chief Justice Marshall's opinion in The Schooner Exchange, which I've noted before.  As with those sources, it shows a common understanding of a nation's "jurisdiction" as being mostly but not completely co-extensive with the nation's territory; the exceptions being persons such as diplomats who have a recognized exemption from it.  This understanding maps onto the Fourteenth Amendment's description of birthright citizenship: "born ... in the United States and subject to the jurisdiction thereof."