Category: reason

This is the final installment in Reason’s four-part documentary series, “Cypherpunks Write Code.” Watch Part 1, Part 2, and Part 3.

“The fall of the Berlin Wall was important to me,” said Zooko Wilcox, who was 15 in 1989. It seemed like “the end of history”—a reference to the political scientist Francis Fukuyama’s influential 1989 essay—and a time when “national borders would cease being the walls of prisons,” he recalled. When Wilcox discovered the internet a few years later, he saw it as “part of this pattern where borders and distance stop being barriers to people.”

Wilcox, who today is the founder and CEO of a company that oversees the development of the cryptocurrency Zcash, was an early participant in the “cypherpunks email list.” The list, which launched in 1992, became a gathering place for a global community interested in using cryptography to allow individuals to communicate and transact on the internet privately and without interference from a central authority. The cypherpunk movement more broadly would go on to influence WikiLeaks (Julian Assange was a participant on the email list), BitTorrent, Tor, and bitcoin, among other freedom-oriented technologies and initiatives.

Wilcox dropped out of college to work at David Chaum’s startup DigiCash, an attempt to build a privacy-preserving payment network on the internet based on a series of groundbreaking papers that the legendary cryptography had published in the 1980s.

“Because of the cypherpunks and because of the science papers of David Chaum,” Wilcox told Reason, “economic freedom” seemed inevitable. Humans will “no longer [be] constrained by national borders and distance from cooperating and sharing resources and helping each other.”

Three decades later, we’re a long way from realizing the economic freedom and online privacy that Wilcox and other early cypherpunks anticipated, but since the invention of bitcoin and the launch of the cryptocurrency industry, a new generation of cypherpunks has emerged who are convinced that it’s now possible to make good on the movement’s original vision.

There was also a divide within the original cypherpunk community over whether cryptographic tools would lead to more individual freedom, free trade, and the spread of democracy, or the collapse of government altogether. The cypherpunk movement’s most influential figure was the physicist and intellectual provocateur Tim May, who coined the phrase “crypto anarchy.” He saw the fall of the Berlin Wall as evidence that the societal institutions we take for granted could collapse in short order, just as they had in the Middle Ages. (May passed away in 2018 at the age of 66.)

“We saw the little principalities, the monarchies, the religious, the papal states—we saw those collapse probably as a result of … printing,” May told Reason,

May penned a one-page summary explaining how cryptography would upend society titled “The Crypto Anarchist Manifesto.“

“So I just sat down at my little Macintosh and loosely patterned this after the Communist Manifesto,” he told Reason. “Just as the technology of printing altered and reduced the power of medieval guilds and the social power structure,” he wrote, “so too will cryptologic methods fundamentally alter the nature of corporations and of government interference in economic transactions.”

The idea that excited May and many other cypherpunks, according to the novelist and writer Paul Rosenberg, author of the Free–Man‘s Perspective newsletter, was that “we can be protected from anything without—from the observers, from the watchers, from the imposers of the past upon the future that we’re trying to create.”

May was skeptical of the idea that humanity was witnessing “an unabashed victory of economic and political liberalism,” as Fukuyama wrote in his famous essay (later expanded into a book)—or that it was possible to overcome tyranny through collective action. He embraced a technology-based theory of historic change that was summed up by the movement’s tagline, “cypherpunks write code,” a line from the mathematician Eric Hughes’ 1993 essay, “A Cypherpunk’s Manifesto.“

“What Eric meant by ‘cypherpunks write code’ was, ‘Don’t be one of those guys who goes to a Libertarian Party conference and sits about getting somebody elected to the Los Gatos City Council,'” May told Reason. “That way lies madness.”

“Whereas the interesting things that had happened had been technological changes, the telephone, copy machine, the VCR.”

“The thing I really got interested in is that you don’t just go and ask the regulator, ‘Oh, we need more privacy online.’ We go fix it,” said the cryptographer Adam Back, an influential participant on the cypherpunks list, whose system Hashcash was later incorporated into the design of bitcoin. “Arguing and complaining and lobbying and politics have nominal effects, and what changes the world is technology adoption and society moving, shifting its viewpoints.”

For crypto-anarchists like May, writing code meant building systems for anonymous transactions on the internet that made the arbitrary divisions of the political world irrelevant. “National borders are just speed bumps on the information superhighway,” he quipped.

Online cryptographic networks would be structured like a geodesic dome, a form hailed by the counter-cultural technologists of the 1970s for being in harmony with nature and highly resistant to external attack. “Networks with no owners with many interconnecting nodes,” May told Reason, and it “would be basically unstoppable.” In a geodesic market, “economics will no longer be the handmaiden of politics,” the cypherpunk writer Robert Hettinga wrote in a 1998 essay.

“This idea of a many-to-many connection was clearly going to happen,” May told Reason. But it was much easier to build a functional network for cooperation and trade when you can rely on a central authority to enforce the rules. Jim McCoy, a software developer and early cypherpunk, who was the co-founder of the peer-to-peer file-sharing network Mojo Nation (where Wilcox and the inventor of BitTorrent, Bram Cohen, worked as software engineers), recalls that there were many discussions on the cypherpunks email list centered around the challenges of building decentralized economic systems.

“How could we use this weird crypto technique to solve this strange, esoteric little problem that in the real world you just solve because, ‘Oh, I know what your social security number is,’ or you have to have your government-issued ID…”

The economist David D. Friedman, author of The Machinery of Freedom: Guide to a Radical Capitalism, originally published in 1973, told Reason that May “stole” some of his ideas about “the ways in which people might provide the equivalent of what government does in a decentralized fashion,” and “then I stole them back!”

A function of government that was particularly hard to replicate using cryptography was the issuance of money. The cypherpunks attempted to build a borderless, internet currency system as anonymous as cash, and that, like gold, held its value without the backing of a central bank.

“Gold makes very good money because nobody can manufacture more of it very readily, to put it mildly,” said cryptographer Whitfield Diffie, famous for co-discoverering the concept on which all modern encryption is based. “Whereas bits are perfectly copyable, turning bits into good money is quite difficult.”

“Tim May and many others considered electronic cash to be the holy grail because it completed the picture,” said Back.

A private and decentralized monetary system, May argued, was a key component in constructing a new borderless world where the activities and assets of individuals would be resistant to government control and confiscation. “You don’t physically meet the person if you don’t even know what continent they’re on [and] you can’t coerce them,” May said.

But there was another group within the cypherpunk movement that rejected May’s vision of cordoning off a new world in cyberspace. Dubbed the “High-Tech Hayekians” by the economist Don Lavoie, this group included the computer scientists E. Dean Tribble, Mark S. Miller, Chip Morningstar, and the entrepreneur and economist Phil Salin. (For more on this faction of the movement, watch Part 1 of Reason’s documentary series on the cypherpunks.)

They were focused on designing secure computing systems based on economic insights, particularly those of the Austrian-born Nobel Prize winner Friedrich Hayek. Instead of building a new virtual world shielded from government interference, the High-Tech Hayekians sought to use technology to demolish walls and divisions within the existing world. They imagined that introducing new tools for human coordination would gradually erode the government’s ability to impinge on our freedoms.

“We did lots and lots of fantasizing about how the world could be different, but we saw this as emerging from inside the world,” Miller told Reason.

Cryptography was a tool for porting economic concepts and legal structures onto the internet, but the aim was to foster new forms of peer-to-peer commerce and knowledge sharing. And the High-Tech Hayekians believed that even imperfect systems can transform society gradually from within.

“The overall arc of world history is toward rule of law, toward less corruptible systems,” Miller told Reason. “If the emergence of the world of crypto commerce creates systems that are vastly less corruptible, but under a whole mix of different mechanisms and governance regimes such that they’re not always everywhere incorruptible, I think that’s fine.”

“There’s a lot of power in providing people tools such that they can successfully start to act more like you would like them to,” Tribble told Reason. “As opposed to, ‘You’ve got to come over here where it’s really hard edge encrypted and it works exactly the way we want.’ No, no, let’s raise people’s levels incrementally, and that’s an improvement in the world.”

For many cypherpunks, the darker side of crypto anarchy was epitomized by the writings of the chemist and electrical engineer Jim Bell, a participant on the email list, who in his multi-part essay, “Assassination Politics,” compared aggression by the state to that of “muggers, rapists, robbers, and murderers,” and posited a cryptographically protected marketplace in which anonymous individuals could, in effect, pay to have government employees killed with the goal of destroying the state.

In 1997, Bell was arrested and went to prison for, among other things, dropping a stink bomb on a government building. May distanced himself from Bell’s writings and activities while maintaining that marketplaces for assassination like the one Bell had described, might be both inevitable and desirable.

“Can evil be done with this technology? Not just the internet, but especially the crypto part of it? Yes,” May told Reason. “Deal with it.” According to May, Phil Zimmermann, the creator of the encrypted messaging system Pretty Good Privacy (PGP) once told him that “he sometimes regretted ever introducing PGP to the world because it could be used by Al Qaeda or the Taliban or whatnot. I say, so what? I’m not morally responsible. It would have happened whether we had existed or not.”

“People want to do what they want to do,” he continued. “I mean, they want free shit. They want freedom to do things. Even if they say that it should be regulated, they’ll often make the conscious decision to copy music, copy videotapes they want to see.”

“BlackNet is a negative consequence,” Tribble, a member of the High Tech Hayekians, told Reason, “[and] I’m not interested in creating that. When you build technology to solve problems … there are consequences that we try to think ahead of … that’s responsible development. And we certainly engaged in that. And talking with Tim May and putting on that ‘What if I was a black hat’ kind of thing was certainly a useful foil for working through those kinds of ideas, but that’s absolutely not what cypherpunks were.”

Thirty years after its launch, how well does the cypherpunk movement’s vision of the future comport with reality? Over the next quarter-century, the internet would make possible an explosion of individual freedom and information sharing, just as Salin had predicted in 1991. But it would also grow into a surveillance apparatus that bore out the dystopian vision of journalist David Burnham and his 1983 book, The Rise of the Computer State.

“Facebook collects information that the East German Stasi would have killed for,” said McCoy, who (after Mojo Nation failed) went on to work at the social media giant from 2011 to 2016. “I think that most people are quite happy to hand people all of the information about them online in return for a few pics of your high school friends, kids, or whatever.”

By the mid-2000s, it seemed the cypherpunk movement had mostly failed. Then came the global financial crisis followed by massive bailouts by central banks. On October 31, 2008, a pseudonymous inventor named Satoshi Nakamoto shared a white paper describing a peer-to-peer non-governmental monetary system, pulling together technical and philosophical concepts developed on the cypherpunks’ email list. Thanks to bitcoin, within a few years, the movement was reborn with a new generation committed to enhancing personal freedom and privacy with cryptographic tools.

“It’s like discovering an oasis when you’re lost in the desert,” Wilcox told Reason. “It’s bitcoin that is single-handedly responsible for the current wave of cypherpunk activity.”

“It’s always messier than visionaries can anticipate because reality is bigger than any one head,” said Miller. “We’re still on the road in the quest to build architectures that amplify human freedoms and protect us from the dynamics in the other direction.”

Written, shot, edited, narrated, and graphics by Jim Epstein; opening and closing graphics and peer-to-peer computer graphics by Lex Villena; audio production by Ian Keyser; archival research by Regan Taylor; feature image by Lex Villena

Music: “Daemones” by Kai Engel used under Creative Commons

Photos: playing with Amiga 1000 by Blake Patterson, Creative Commons, Attribution 2.0 Generic; people climbing the Berlin Wall at Brandenburg Gate, imageBROKER/Jürgen Schwarz/Newscom; people from East and West Berlin climbing on the wall, imageBROKER/Norbert Michalke/Newscom; demonstrator pounds away at the Berlin Wall, STR/REUTERS/Newscom; Regan and Gorbachev, Steve Gottlieb Stock Connection Worldwide/Newscom; people climbing the Berlin Wall, imageBROKER/Jürgen Schwarz/Newscom; Berlin Wall, Getty Archives; David Chaum, Associated Press; East German border guards seen through a gap, AP Images; Francis Fukuyama, John Troha BlackStar Photos/Newscom; Prague 1989, Abaca/Newscom / CreditAbaca/Newscom; Buckminster Fuller and the geodesic dome, C. Y. Yu/SCMP/Newscom; IRS agent, David Royal/ZUMAPRESS/Newscom; chiselling pieces off the wall, imageBROKER/Norbert Michalke/Newscom; Mark Zuckerberg, THIEL CHRISTIAN/SIPA/Newscom; Brin, Page, and Schmidt, Minneapolis Star Tribune/ZUMAPRESS/Newscom; Jeff Bezos, Lisa Qui ones BlackStar Photos/Newscom; Snowden protests, BONESS/IPON/SIPA CreditBONESS/IPON/SIPA/Newscom and David Von Blohn CreditDavid Von Blohn/ZUMA Press/Newscom; Mark Zuckerberg, CHRISTIAN/SIPA CreditTHIEL CHRISTIAN/SIPA/Newscom; George W. Bush, Chuck Kennedy/MCT/Newscom; End the Fed 1, Mehdi Taamallah/Newscom; End the Fed, hardtopeel, Creative Commons, Attribution-ShareAlike 2.0 Generic; End the Fed!!!, Martha Heinemann Bixby, Attribution-NonCommercial 2.0 Generic; End the Fed, Mehdi Taamallah/Newscom; Bitcoin conferences, Aleksandr Zykov, Creative Commons, Attribution 2.0 Generic; Institute of Cryptoanarchy, Michal Dolezal/ZUMA Press/Newscom; John Gilmore at Burning Man 2005, Creative Commons, Attribution 2.0 Generic.

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On Tuesday morning, lawyers for the Luzerne County Board of Elections filed a motion seeking to have Justice Amy Coney Barrett recuse from Republican Party of Pennsylvania v. Boockvar, in which Pennsylvania Republicans are challenging the Pennsylvania Supreme Court’s interpretation and application (and, in the plaintiffs’ telling, rewriting) of Pennsylvania election law. The motion cites my Monday evening blog post on whether Justice Barrett should recuse from 2020 election litigation.

On Tuesday evening, the Luzerne County Council voted 7-4 to withdraw the motion. Among the reasons is that the attorneys for the County BOE apparently filed the motion without first raising the issue with county officials. From a PAHomepage Eyewitness News report:

Luzerne County officials were surprised to learn lawyers representing the county filed a motion asking Justice Amy Coney Barret to recuse herself in the United States Supreme Court decision over the mail-in ballot deadline in Pennsylvania. . .

Larry Moran of Joyce Carmody and Moran filed the motion along with Joseph Cosgrove of Selingo and Guagliardo. The county hired Moran’s private firm when the Trump campaign filed civil action against 67 Pennsylvania counties this summer, citing the handling of mail-in-ballots. Moran says this motion is part of that.

“It was a decision by me, the owner of the firm that was assigned with the task of winning the lawsuit and defending Luzerne County,” Moran said. . . .

During Tuesday night’s council meeting Vito Deluca said the Luzerne County Office of Law was not involved in the filing.

“We will be just as interested to hear what possible reason there would be for filing this without having any discussion with council and putting Luzerne County in the spotlight,” Deluca said. . . .

As detailed in this news report, the County initially voted 6-5 not to request a withdrawal of the motion, but two council members reversed their position after an extensive debate.

According to this report, the lawyer who filed the motion claims other Pennsylvania counties joined in the motion, though no other counties are listed on the motion or otherwise identified as supporting the motion on the docket. While justices will consider any motion to recuse that is filed by a party to a case, such a motion is not necessary for a justice to recuse.

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When Facebook CEO Mark Zuckerberg testifies before Congress on Wednesday, he will call on lawmakers to take explicit action to rewrite the law that protects a free and open internet. In doing so, he will be implicitly asking the federal government to impose huge new regulatory costs on social media sites like his own—costs that will ultimately protect Facebook from rising upstarts.

In signaling that Facebook would be willing to support some changes to Section 230 of the Communications Decency Act of 1996—the federal statute that protects online platforms from liability for content posted by users—Zuckerberg’s testimony will also serve as a reminder that the bipartisan assault on online freedom will be one of the major policy battles of the next few years no matter who wins next week’s election.

“The debate about Section 230 shows that people of all political persuasions are
unhappy with the status quo,” Zuckerberg will tell the Senate Committee on Commerce, Science, and Technology, according to a written testimony released Tuesday night.

The CEO will also remind the committee that Section 230 does two things: It encourages free expression on the internet because platforms can give their users free rein to post about anything without fear of facing lawsuits over that content. Secondly, it allows platforms to set their own rules for content moderation. Zuckerberg is right that lots of people are complaining about Section 230 these days, but they don’t agree on why. Some people on the left are unhappy about the unfettered freedom on social media, which sometimes results in unsavory views being promoted, while some people on the right are all aflutter over how private companies are (sometimes foolishly) managing and moderating content.

Asking Congress or federal regulators to sort all of that out in a way that makes everyone happy seems like a fool’s errand. Anyway, here’s what Zuckerberg plans to say:

I believe we need a more active role for governments and regulators, which is why in March last year I called for regulation on harmful content, privacy, elections, and data portability. We stand ready to work with Congress on what regulation could look like in these areas. By updating the rules for the internet, we can preserve what’s best about it—the freedom for people to express themselves and for entrepreneurs to build new things—while also protecting society from broader harms. I would encourage this Committee and other stakeholders to make sure that any changes do not have unintended consequences that stifle expression or impede innovation.

(Emphasis mine.)

That last bit about avoiding unintended consequences is particularly amusing for two reasons. First, given Congress’ low level of technological prowess, unintended consequences of a massive rewrite of the internet’s First Amendment are all but guaranteed.

Second, Zuckerberg is no fool. He fully understands that one of the intended consequences—from his perspective, at least—of new regulations for online speech would be protecting the interests of companies like his own.

“Large companies like Facebook benefit from regulatory barriers that keep competitors small and weak,” Jesse Blumenthal, vice president of technology for Stand Together, tells Reason.

Raising the costs of lawsuits will likely cement the power of today’s most prominent players in tech because smaller startups won’t be able to afford the compliance costs of a company like Facebook.

— Jesse Blumenthal (@jessekblum) October 27, 2020

“Make no mistake about it: this is Mark Zuckerberg pulling up the innovation ladder he climbed behind him,” writes Mike Masnick, editor of Techdirt. Masnick notes that some blame should be shared by everyone who has facilitated the current moral panic over so-called “Big Tech,” a trumped-up crisis that is only going to benefit those same companies in the long run.

“Facebook is throwing the open internet under the bus—in part gleefully, as so-called ‘critics’ of Facebook stupidly demanded ‘reforms to Section 230’ incorrectly believing that 230 was a ‘special subsidy’ for Facebook,” he writes. “Facebook doesn’t need it any more, but all of the people who called for such reforms are now going to help cement Facebook’s position of dominance.”

With bipartisan buy-in and a willing partner just asking to be regulated, it seems almost certain that the fight over Section 230 will be a major issue for the next Congress and presidential administration. Once the dust settles from this year’s election, new battle lines will have to be drawn between those who value the freedom that’s made the internet such a weird and wonderful place, and those who see political or financial benefits from wrapping it in government regulation.

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UNREST IN PHILADELPHIA

Protests spurred by the police killing of 27-year-old Walter Wallace Jr. turned violent in parts of Philadelphia on Tuesday night. Wallace was armed with a knife when he was gunned down by officers on Monday.

Philadelphia police asked residents to remain indoors on Tuesday night as rioting and looting took place in parts of the city. Dozens of people were arrested according to media reports.

More looting unfolding right now in Philadelphia and I have to ask why is it always footlocker getting looted? I mean having brand new sneakers isn’t that important end it definitely won’t help anyone. pic.twitter.com/WSCfee4RNT

— Luke Rudkowski (@Lukewearechange) October 28, 2020

There were also violent confrontations between residents and police.

#Philadelphia
BREAKING
A large black pick-up truck just sped through the area striking at least two police officers. Multiple officers down, requesting back up immediately.pic.twitter.com/oEvn2Cb40o

— Shane B. Murphy (@shanermurph) October 27, 2020

Looks like Philly PD smashed the windows of a passing vehicle that was trying to turn around, then dragged the parents out and beat them on the ground in front of their terrified children. [@MrCheckpoint] pic.twitter.com/dNBf0aLGAf

— Chad Loder (@chadloder) October 28, 2020

As always, the escalation of violence—both by and against cops—and opportunistic destruction of private property is unlikely to result in meaningful policing reforms. Those reforms, however, remain necessary.

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ELECTION 2020

President Donald Trump held a rally in Omaha, Nebraska, on Tuesday night and then stranded hundreds of supporters in freezing temperatures for hours afterward. Some rally attendees required medical assistance, and the president’s critics were quick to claim that the whole mess was an obvious metaphor for all things Trump.

Meanwhile, former Vice President Joe Biden is facing fresh allegations of corruption relating to China. Tony Bobulinski, a former Biden associate, told Fox News’ Tucker Carlson on Tuesday night that Biden lied when he denied having knowledge of a business deal concocted by his son and brother with a Chinese company.

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QUICK HITS

• These critics of social justice say it is possible to oppose the illiberalism of the left without embracing Trump.

• Is Texas a swing state? (Though Democrats’ fever dreams of turning Texas blue are nothing new.)

• Trump’s businesses have milked the federal government for more than $2.5 million since he took office.

• Daylight saving time ends on Sunday. It might be a weirder transition than usual, thanks to the pandemic.

• Trump’s trade war might reduce Americans’ access to a Chinese-made COVID-19 vaccine.

• The worst idea yet for “fixing” elections?

• The Los Angeles Dodgers won the World Series by defeating the Tampa Bay Rays on Tuesday night. But Tampa Bay outfielder Randy Arozarena, who escaped from Cuba on a “glorified kayak” to pursue his major league dreams, was the series’ breakout star after becoming the first rookie to hit three home runs in a World Series since 1939.

• COVID-19 is no laughing matter. Oregon bureaucrats, on the other hand…

I'm sorry but who at the Oregon Health Authority thought this was a good idea? pic.twitter.com/xXHia14KSg

— Samantha Swindler (@editorswindler) October 27, 2020

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Carol Nesteikis’ son Adam is 33. He is developmentally disabled and lives in Illinois with his mother and her husband, both retired, who still have to remind him to brush his teeth and shower. He stopped wetting his bed at age 16.

Ten years ago, when a neighbor—a young man with a troubled past, who had molested Adam—told him to pull down his pants in front of a girl, Adam complied. The girl then told her parents.

Both the neighbor and Adam were charged with 19 felonies. Adam took a plea deal and has been on the sex offender registry for seven years. He has three more to go.

That’s all according to Nesteikis, who recounted her story for Persuasion. I had heard her speak a few years ago at a conference in St. Louis organized by Women Against Registry. It is a story that makes clear how cruel and pointless the public sex offense registry is.

As a registrant, Adam is not allowed to leave his home between 6:00 p.m. and 6:00 a.m. He lost his part-time restaurant job of wiping tables, which he had loved. And because he is banned from parks for the rest of his life, he can no longer participate in his other passion, the Special Olympics.

In her article, Nesteikis quotes a 2015 report from the Department of Justice itself that concluded: “Residence restrictions do not decrease and are not a deterrent for sexual recidivism. In addition, research has shown no significant decreases in sex crime rates following the implementation of residence restrictions.”

This research even suggests “that residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support.” 

And yet, there are 900,000 people on the registry.

These days Adam spends most of his time playing with fidget spinners and talking to Alexa. His verbal and social skills are dwindling.

Nesteikis and a handful of other parents with mentally disabled children on the registry started Legal Reform for People Intellectually and Developmentally Disabled (LRIDD), a nonprofit dedicated to reforming the irrational sex offense laws.

“Unfortunately, Adam’s case is all too common,” says Jude Harrison, an LRIDD activist in Virginia whose autistic son endured three years in prison. The group got three bills passed into law this year: HB659, HB134 and SB 133 .

“These address some of the issues people with intellectual and development disabilities face within the criminal justice system,” Harrison tells Reason, including one that allows the court to defer or dismiss a case if it’s clear it was caused or directly impacted by the defendant’s disability. “Hopefully, other states will follow suit.”

In Illinois, Nestiekis has applied for a gubernatorial pardon for her son. She is doing it on her own as the couple’s savings, meant to provide care for Adam when they are no longer here, were spent on legal fees and complying with the registry requirements. (They had to move.)

In the meantime, every year the police come by and make sure Adam is still abiding by his restrictions. One year, they knocked on everyone’s door in the apartment complex to tell them they’re living near a sex offender. But they’re really just living near a man in his thirties who misses the Special Olympics and his job wiping tables.

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In this post I’ll consider the original meaning of the second requirement of the Constitution’s citizenship clause: that a person be born “subject to the jurisdiction” of the United States. (More detailed discussion and citations can be found in Part II.B of my forthcoming article.)

As noted in my introductory post, writers such as John Eastman and Michael Anton claim the original meaning of “subject to the jurisdiction” excludes from citizenship the U.S.-born children of temporary visitors and undocumented migrants (and, perhaps, of all alien parents). I think they’re clearly mistaken.

I’ll start with a methodological point. Much past debate on this subject has focused on parsing the clause’s drafting debates or speculating about the drafters’ intent. These matters may be worth considering, but they shouldn’t be the starting point. Instead, we should start with the text and with the contemporaneous meaning of the key phrase.

The citizenship clause’s text begins, as discussed in my prior post, with the requirement of birth “in the United States.” It then adds the further requirement of birth “subject to the jurisdiction” of the United States. So our inquiry is framed as: in the nineteenth century language and context in which the clause was written, who was in the United States yet not subject to its jurisdiction?

As with the first part of the clause, Chief Justice Marshall provides a good beginning. In Schooner Exchange v. McFaddon (1812), writing for the Court, Marshall discussed “a nation’s jurisdiction,” which he equated with national sovereign authority. Generally, Marshall said, a nation had jurisdiction over all people and things within its territory. But there were three exceptions, which he listed: foreign sovereigns themselves, foreign ambassadors and foreign armies. These exception apart, though, Marshall emphasized that aliens within sovereign territory were otherwise “amenable to the jurisdiction” of the United States (meaning governed by U.S. law).

Henry Wheaton, the leading nineteenth-century American writer on international law, described national jurisdiction in a similar way, using the phrase “subject to the jurisdiction.” Ordinarily, Wheaton wrote in Elements of International Law (1836), a nation had “jurisdiction,” meaning “sovereign power of municipal legislation,” within its territory. But, he continued, foreign ambassadors and their households had diplomatic immunity under international law and so were “excluded from the local jurisdiction.” Immunity thus was an exception from the territorial jurisdiction to which they, as aliens within sovereign territory, would otherwise be subject.

There was another category of people described in the nineteenth century as in the United States but not subject to U.S. jurisdiction: tribal Native Americans. This sounds odd to modern ears because the U.S. claimed ultimate authority over the tribes. But the U.S. commonly (at the time) entered into treaties guaranteeing tribes authority over internal matters, including governance of tribal members. Some treaties expressly referred to tribal “jurisdiction.” And key nineteenth-century writers such as James Kent described the situation (in Goodell v. Jackson, 1823): “Though born within our territorial limits, the Indians are considered as born under the jurisdiction of their tribes.”

The nineteenth-century idea of national jurisdiction was interrelated with citizenship law. Prior to the Fourteenth Amendment, citizenship law was mostly common law, and U.S. common law tracked the British principle of jus soli (birth within sovereign territory). A longstanding exception to jus soli citizenship was the children of diplomatic households, who were not U.S. citizens although born in U.S. territory. A similar exception existed (in theory) for children of foreign armies, again arising from their exclusion from U.S. jurisdiction; Justice Story, for example, directly linked these ideas in describing citizenship law in Inglis v. Trustees of Sailor’s Snug Harbor (1830). And likewise, Native Americans were not treated as citizens if they were born within tribal society because, as Kent explained in the passage quoted above, they were under the jurisdiction of the tribes, not the jurisdiction of the United States.

Also consistent with the idea of jurisdiction, the U.S.-born children of aliens (other than diplomats and armies) were considered U.S. citizens. In McCreery’s Lessee v. Somerville (1824), for example, the Supreme Court (per Justice Story) treated as uncontroversial the U.S. citizenship of the U.S.-born child of Irish alien parents. In Lynch v. Clarke (1844), a New York court directly held that U.S.-born children of alien temporary visitors were U.S. citizens.

Thus when the Fourteenth Amendment’s drafters picked the phrase “subject to the jurisdiction,” it had an established meaning that was already closely connected to citizenship. The first part of the citizenship clause (“born in the United States”) adopted the territorial principle of jus soli. The second part embraced the longstanding exclusions from the jus soli principle: people in U.S. territory but nonetheless not under U.S. sovereign authority, namely diplomats, foreign armies and tribal Native Americans, who had not traditionally been born citizens.

The Senate debates, where the citizenship clause was developed, bear this out. Initially, the proposed Amendment guaranteed rights to citizens without defining citizens. Senator Wade pointed this out and suggested guaranteeing rights to all persons born in the United States. Senator Fessenden objected that some U.S.-born people were not citizens under existing law (which Wade acknowledged, mentioning ambassadors). Senator Howard then proposed the language that became the citizenship clause, describing the “subject to the jurisdiction” language as excluding children of ambassadors.

Senators next debated whether Howard’s language continued the exclusion of tribal Native Americans from citizenship (which they favored). Howard said that it did, adopting the prior explanation that U.S. laws didn’t extend to the tribes’ internal affairs. A revision to expressly exclude tribal members was defeated as unnecessary.

Finally, the Senators considered the citizenship of U.S.-born children of aliens. Senator Cowan objected (in overtly racial terms) that the proposal would make citizens of U.S.-born children of Chinese immigrants on the West Coast. California Senator Conness (himself an Irish immigrant) agreed it would have this effect, but enthusiastically endorsed it. No Senator disagreed with the Cowan/Conness interpretation, including Howard (who wrote the clause) and Senator Trumbull (who originally introduced the proposed Amendment). Indeed, in an earlier exchange with Cowan, Trumbull said that U.S.-born children of Chinese immigrants (like all U.S.-born children of immigrants) should be considered citizens. And the Senate then adopted Howard’s language without further revision.

Thus, as with the first part of the clause, the drafting history confirms the pre-drafting ordinary meaning of the relevant language. “Subject to the jurisdiction” of the U.S. meant people under U.S. sovereign authority. That included everyone within U.S. territory, excluding only foreign diplomats, foreign armies and native tribes. (As shown by the Court’s decision in Fleming v. Page, discussed in my last post, it was possible to be subject to U.S. jurisdiction outside U.S. territory; anyone in this category would be excluded from citizenship by the first part of the clause).

In my next post, I’ll discuss why this original meaning includes the U.S.-born children of undocumented migrants, and consider some leading counterarguments.

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