Category: reason

Judge Tourrella, the lone First Circuit Judge in Puerto Rico, passed away.

On Monday evening, Judge Juan Torruella passed away. He was the lone First Circuit judge who resided in Puerto Rico. Indeed, he was the only person to ever hold that position. The judgeship was created in 1984 (See Section 201, 98 Stat 333). Given the rapid pace of judicial appointments, it is likely that President Trump will be able to fill this vacancy before January 20. And given that Puerto Rico has no Senators who could withhold blue slips, the process should be speedy.

Is President Trump required to nominate someone who resides in Puerto Rico? The answer is no. It is a common myth that Circuit Court judgeships are attached to a specific state. They are not. They belong to the Circuit. 28 U.S.C. § 44 provides that the First Circuit shall have six active judgeships. That statute only requires that a “circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service.” There is no requirement that the circuit judge reside in any given state. The First Circuit covers four states: Massachusetts, New Hampshire, Rhode Island, and Maine. As things stand now, there are two judges from Massachusetts (Lynch and Barron), one judge from New Hampshire (Howard), one judge from Rhode Island (Thompson), and one judge from Maine (Kayatta).

If Judge Lynch decided to move to New Hampshire, that would be perfectly permissible. But it would not be possible for both Judges Lynch and Barron to move out of Massachusetts. Why? Section 44 provides that “In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit.” There has to be at least one judge in Massachusetts.

But, Puerto Rico is not a state. (For now at least). And there is no requirement that there should be a circuit judge from Puerto Rico. Therefore, the President could nominate a judge from anywhere else in the First Circuit.

I’m not sure what would happen if Puerto Rico becomes a state. Given this statute, there would have to be at least one judge in the new state of Puerto Rico. But who would have to move? I don’t think Congress anticipated that consequence in 1984.

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Judge Tourrella, the lone First Circuit Judge in Puerto Rico, passed away.

On Monday evening, Judge Juan Torruella passed away. He was the lone First Circuit judge who resided in Puerto Rico. Indeed, he was the only person to ever hold that position. The judgeship was created in 1984 (See Section 201, 98 Stat 333). Given the rapid pace of judicial appointments, it is likely that President Trump will be able to fill this vacancy before January 20. And given that Puerto Rico has no Senators who could withhold blue slips, the process should be speedy.

Is President Trump required to nominate someone who resides in Puerto Rico? The answer is no. It is a common myth that Circuit Court judgeships are attached to a specific state. They are not. They belong to the Circuit. 28 U.S.C. § 44 provides that the First Circuit shall have six active judgeships. That statute only requires that a “circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service.” There is no requirement that the circuit judge reside in any given state. The First Circuit covers four states: Massachusetts, New Hampshire, Rhode Island, and Maine. As things stand now, there are two judges from Massachusetts (Lynch and Barron), one judge from New Hampshire (Howard), one judge from Rhode Island (Thompson), and one judge from Maine (Kayatta).

If Judge Lynch decided to move to New Hampshire, that would be perfectly permissible. But it would not be possible for both Judges Lynch and Barron to move out of Massachusetts. Why? Section 44 provides that “In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit.” There has to be at least one judge in Massachusetts.

But, Puerto Rico is not a state. (For now at least). And there is no requirement that there should be a circuit judge from Puerto Rico. Therefore, the President could nominate a judge from anywhere else in the First Circuit.

I’m not sure what would happen if Puerto Rico becomes a state. Given this statute, there would have to be at least one judge in the new state of Puerto Rico. But who would have to move? I don’t think Congress anticipated that consequence in 1984.

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Think This Election Will End Up in Front of the Supreme Court? It’s Already There.

voaphotos010497

The 2020 presidential election is already being litigated in front of the U.S. Supreme Court even though Election Day is still a week away. 

In a few key swing states, the rules under which the election will be conducted remain unsettled, including the potentially all-important question of when the polls will actually close—that is, when will states stop accepting mail-in ballots. Newly confirmed Justice Amy Coney Barrett could help decide these questions, though she may recuse herself (more on that in a minute).

The three outstanding cases involve absentee ballot rules in Pennsylvania, North Carolina, and Minnesota. In all three cases, Republicans are asking the Supreme Court to block state-level rules set by Democrats that allow mail-in ballots to be counted even if they are received days after the election, as long as the ballots appear to have been mailed by Election Day. In a close race, the decision to count ballots that are received in the days after the election—or, in North Carolina’s case, all the way up until Nov. 12—could tip the results one way or another.

Generally, the Supreme Court has been deferential to state officials when it comes to setting the rules for elections. Indeed, that’s what happened again on Monday night when the Court rejected a challenge brought by Democrats that sought to force Wisconsin to accept absentee ballots for up to six days after the election—overturning a district court ruling that had ordered the state to do so.

“No one doubts that conducting a national election amid a pandemic poses serious challenges,” wrote Justice Neil Gorsuch in one of three concurring opinions released as part of the 5-3 ruling (there was no majority opinion). “But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”

Gorsuch’s opinion and separate concurring opinions from Justice Brett Kavanaugh and Chief Justice John Roberts may indicate how the Court is approaching similar issues in the Minnesota, North Carolina, and Pennsylvania cases. In fact, Kavanaugh and Justice Elena Kagan, who wrote the dissenting opinion in yesterday’s Wisconsin case, spent a fair bit of time in their respective opinions debating Pennsylvania rather than Wisconsin.

That’s because the Pennsylvania case is different in a subtle but potentially important way. Unlike the Wisconsin case, which moved through the federal court system up to the U.S. Supreme Court, the Pennsylvania case is on appeal from the state Supreme Court.

In his concurring opinion on Monday, Kavanaugh went out of his way to drop in a footnote explicitly noting that “under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections”—an interesting thing to write since the Wisconsin case had nothing to do with state courts. Roberts, too, preemptively addressed that distinction by highlighting the fact that the Wisconsin case was the result of a federal judge’s “intrusion on state lawmaking process.”

In Pennsylvania, it was the state Supreme Court that may appear to have intruded on the lawmaking process. Last month, it effectively rewrote the state’s election laws by ordering that absentee ballots received by Nov. 6, three days after the election, would be counted as long as there was no hard evidence to suggest they had been mailed after that date.

The North Carolina and Minnesota cases are less fraught. In both cases, Republicans are seeking to block state-level rules allowing ballots to be received until Nov. 12 and 10, respectively. But in both cases, federal courts have so far upheld those rules, so there is no issue of whether judges or lawmakers get the final say on election rules.

All three rulings are expected in the coming days. And if all of that isn’t confusing enough, there’s another wrinkle: Barrett was officially sworn in on Monday night and could play a role in these high-profile cases. “Recusal is never required just because a case is controversial or politically fraught,” writes Jonathan Adler at The Volokh Conspiracy, but he notes that there’s also no real precedent for our current moment.

The best-case scenario is that none of this ultimately matters. With huge numbers of early and absentee votes already cast, the number of ballots received after Election Day may be lower than many people hope or fear. But if the election ends up being close, the Supreme Court is already playing a role in determining the outcome.

FREE MINDS

The pandemic disrupted sports—and now Americans aren’t watching as much. Television ratings for the NBA’s championship series were down 49 percent from a year ago and the NHL’s championship series saw viewership drop by 61 percent. “Even the usually untouchable N.F.L. was down 13 percent through Week 5,” The New York Times reports.

Why? “Fewer people are watching television. More viewers than normal are choosing to watch news. Game schedules were optimized to safely complete events in a compressed time frame, not to maximize viewership.”

FREE MARKETS

Forty years after it first aired, Milton Friedman’s documentary series Free To Choose is still a powerful argument for classical liberalism.

“It was an unapologetic defense of why capitalism was both morally and pragmatically superior to socialism,” says Nick Gillespie in a new Reason TV video marking the documentary’s anniversary. “Over the course of 10 hour-long episodes, the Nobel laureate economist laid out the pitfalls of protectionism, espoused the virtues of school choice, and explained why spending, not taxes, is the real measure of the burden that governments put on their citizens.”

Needless to say, those lessons remain as relevant as ever during a presidential campaign between two men who are promising more spending, more borrowing, and more protectionism.

ELECTION 2020

Indiana’s Libertarian gubernatorial nominee, Donald Rainwater, is polling at 14 percent—lower than some previous polls that put his support as high as the mid-20s.

QUICK HITS

  • The Senate voted 52-48 on Monday night to confirm Amy Coney Barrett to the U.S. Supreme Court. Her confirmation was nearly a party-line affair, with Sen. Susan Collins (R–Maine) the lone senator to break ranks. Barrett was sworn in later Monday night in a ceremony at the White House.
  • Conservatives dominate social media, despite cries about censorship and unfairness, according to Politico.

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Think This Election Will End Up in Front of the Supreme Court? It’s Already There.

voaphotos010497

The 2020 presidential election is already being litigated in front of the U.S. Supreme Court even though Election Day is still a week away. 

In a few key swing states, the rules under which the election will be conducted remain unsettled, including the potentially all-important question of when the polls will actually close—that is, when will states stop accepting mail-in ballots. Newly confirmed Justice Amy Coney Barrett could help decide these questions, though she may recuse herself (more on that in a minute).

The three outstanding cases involve absentee ballot rules in Pennsylvania, North Carolina, and Minnesota. In all three cases, Republicans are asking the Supreme Court to block state-level rules set by Democrats that allow mail-in ballots to be counted even if they are received days after the election, as long as the ballots appear to have been mailed by Election Day. In a close race, the decision to count ballots that are received in the days after the election—or, in North Carolina’s case, all the way up until Nov. 12—could tip the results one way or another.

Generally, the Supreme Court has been deferential to state officials when it comes to setting the rules for elections. Indeed, that’s what happened again on Monday night when the Court rejected a challenge brought by Democrats that sought to force Wisconsin to accept absentee ballots for up to six days after the election—overturning a district court ruling that had ordered the state to do so.

“No one doubts that conducting a national election amid a pandemic poses serious challenges,” wrote Justice Neil Gorsuch in one of three concurring opinions released as part of the 5-3 ruling (there was no majority opinion). “But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”

Gorsuch’s opinion and separate concurring opinions from Justice Brett Kavanaugh and Chief Justice John Roberts may indicate how the Court is approaching similar issues in the Minnesota, North Carolina, and Pennsylvania cases. In fact, Kavanaugh and Justice Elena Kagan, who wrote the dissenting opinion in yesterday’s Wisconsin case, spent a fair bit of time in their respective opinions debating Pennsylvania rather than Wisconsin.

That’s because the Pennsylvania case is different in a subtle but potentially important way. Unlike the Wisconsin case, which moved through the federal court system up to the U.S. Supreme Court, the Pennsylvania case is on appeal from the state Supreme Court.

In his concurring opinion on Monday, Kavanaugh went out of his way to drop in a footnote explicitly noting that “under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections”—an interesting thing to write since the Wisconsin case had nothing to do with state courts. Roberts, too, preemptively addressed that distinction by highlighting the fact that the Wisconsin case was the result of a federal judge’s “intrusion on state lawmaking process.”

In Pennsylvania, it was the state Supreme Court that may appear to have intruded on the lawmaking process. Last month, it effectively rewrote the state’s election laws by ordering that absentee ballots received by Nov. 6, three days after the election, would be counted as long as there was no hard evidence to suggest they had been mailed after that date.

The North Carolina and Minnesota cases are less fraught. In both cases, Republicans are seeking to block state-level rules allowing ballots to be received until Nov. 12 and 10, respectively. But in both cases, federal courts have so far upheld those rules, so there is no issue of whether judges or lawmakers get the final say on election rules.

All three rulings are expected in the coming days. And if all of that isn’t confusing enough, there’s another wrinkle: Barrett was officially sworn in on Monday night and could play a role in these high-profile cases. “Recusal is never required just because a case is controversial or politically fraught,” writes Jonathan Adler at The Volokh Conspiracy, but he notes that there’s also no real precedent for our current moment.

The best-case scenario is that none of this ultimately matters. With huge numbers of early and absentee votes already cast, the number of ballots received after Election Day may be lower than many people hope or fear. But if the election ends up being close, the Supreme Court is already playing a role in determining the outcome.

FREE MINDS

The pandemic disrupted sports—and now Americans aren’t watching as much. Television ratings for the NBA’s championship series were down 49 percent from a year ago and the NHL’s championship series saw viewership drop by 61 percent. “Even the usually untouchable N.F.L. was down 13 percent through Week 5,” The New York Times reports.

Why? “Fewer people are watching television. More viewers than normal are choosing to watch news. Game schedules were optimized to safely complete events in a compressed time frame, not to maximize viewership.”

FREE MARKETS

Forty years after it first aired, Milton Friedman’s documentary series Free To Choose is still a powerful argument for classical liberalism.

“It was an unapologetic defense of why capitalism was both morally and pragmatically superior to socialism,” says Nick Gillespie in a new Reason TV video marking the documentary’s anniversary. “Over the course of 10 hour-long episodes, the Nobel laureate economist laid out the pitfalls of protectionism, espoused the virtues of school choice, and explained why spending, not taxes, is the real measure of the burden that governments put on their citizens.”

Needless to say, those lessons remain as relevant as ever during a presidential campaign between two men who are promising more spending, more borrowing, and more protectionism.

ELECTION 2020

Indiana’s Libertarian gubernatorial nominee, Donald Rainwater, is polling at 14 percent—lower than some previous polls that put his support as high as the mid-20s.

QUICK HITS

  • The Senate voted 52-48 on Monday night to confirm Amy Coney Barrett to the U.S. Supreme Court. Her confirmation was nearly a party-line affair, with Sen. Susan Collins (R–Maine) the lone senator to break ranks. Barrett was sworn in later Monday night in a ceremony at the White House.
  • Conservatives dominate social media, despite cries about censorship and unfairness, according to Politico.

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Briefs filed in Lebovits v. Cuomo and Agudath Israel of America v. Cuomo

Earlier this month, I blogged about Governor Cuomo’s COVID-19 restrictions that shuttered house of worship and schools in predominantly Jewish neighborhoods (See here, here, here, here, and here). Since then, I have been actively involved in some litigation.

First, I represent parents and a Jewish school that challenged the Governor’s orders. The Jewish Coalition for Religious Liberty (JCRL) was proud to partner with the Becket Fund for Religious Liberty to file suit. The case, Lebovits v. Cuomo, is currently pending in the U.S. District Court for the Northern District of New York.

Here is the summary of our argument:

For over 100 years, Orthodox Jewish girls have been learning and practicing their faith in Bais Yaakov schools. And for almost as long, the Supreme Court has recognized that the Constitution protects the “fundamental right” of parents like Plaintiffs Yitzchok and Chana Lebovits to direct their children’s religious education. That is as it should be, particularly in a country to which so many Jews came to escape persecution and to preserve the freedom to raise and educate children in their own faith.

In a different case, a court might be asked to ascertain the point at which this fundamental right must yield to a government’s claim that in-person education poses a public health risk. Indeed, this Court already considered the public health claim once in Soos v. Cuomo, — F. Supp.3d —, 2020 WL 3488742 (N.D.N.Y. June 26, 2020), enjoining Governor Cuomo’s and Mayor De Blasio’s efforts to apply an indoor capacity limitation only on houses of worship. But this case is even easier, because here the Governor himself openly admits that COVID is “not being spread by schools.” And BYAM is particularly safe, both because it follows rigorous, State-approved protocols—resulting in zero known cases to date in the school—and because it plans to test all students and staff before returning to school….

Nor can the government claim that the targeted Jewish neighborhoods have particularly high levels of COVID. To the contrary, as Cuomo recently stated that the COVID levels at issue are quite low (“To other states that’s nothing”). Indeed, across the entire country, there is not a single other state whose protocols require school closures for the COVID levels that caused the instant shutdown.

So, if neither the inherent danger of school nor a particularly high COVID rate explains the school closure, what does? The evidence admits of only two other explanations. One is religious targeting of the Orthodox, a charge the government admits. Another is that, as Cuomo recently stated, these closures are not driven by public health, but by “fear” of people “losing confidence” in the City and “moving out.” In response, the State adopted what Cuomo called a “fear-driven” response that he acknowledges is a “very blunt” policy, “cut by a hatchet,” which “is not the best way to do it,” but which someday might give way to “a smarter, more tailored policy.”

But fear is not a compelling government interest, and—even in a pandemic—constitutional rights deserve better than a hatchet job. That is particularly true where the government admits public health is not in jeopardy. BYAM and its families have a fundamental right to continue their education in the proven safety of their school, and the government has no valid reason to prevent their return to that safe environ-ent. Accordingly, a temporary restraining order should issue.

Here are some of the filings in the case:

We are grateful to Professor Stephanie Barclay (Notre Dame), who filed an amicus brief on behalf of various Muslim groups and Professor James Phillips (Chapman) who filed an amicus brief on behalf of the Center for Constitutional Jurisprudence.

Second, JCRL and Becket partnered to submit an amicus brief to the Second Circuit in  Agudath Israel of America v. Cuomo. In this case, several synagogues challenged the GOvernor’s order.

Here is the summary of the argument:

Some free exercise cases are hard, but this one is not. Under any theory of the Free Exercise Clause, a government that uses targeted restrictions to close houses of worship must face constitutional scrutiny. That is particularly true where, as here, the religious restrictions are specifically focused on a minority group. Express attacks on religious minority groups in response to real or perceived threats have a terrible historical pedigree, and do not belong in American public discourse. The First Amendment helps weed out such attacks by subjecting targeted restrictions to strict scrutiny to ensure it happens only where government has exceptionally good reasons.

Almost eighty years ago, the Supreme Court rejected an attack on another religious minority that had been scapegoated as a threat and singled out for ill treatment. See W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Few things could be more corrosive to the body politic than allowing collective guilt to be applied to a disfavored religious group because of the perceived actions of some of their co-religionists. As it was 77 years ago, it is sadly again “necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Id. at 641; accord Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (overruling Korematsu v. United States, 323 U.S. 214 (1944)). By applying strict scrutiny, the Court should nip this attack on our core constitutional values in the bud.

And it is on this question of strict scrutiny—even more than on targeting—where Governor Cuomo’s many public comments about his Order are dispositive. Where the Governor himself characterizes his Order as based on fear rather than science, as cut by a “hatchet” rather than a scalpel, and designed to manage public “anxiety” and people “moving out” of the City, no Court should uphold his Order and allow worship to be largely prohibited for a religious minority. Rather, the only constitutional course is an injunction.

I will post updates about the litigation as warranted.

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Briefs filed in Lebovits v. Cuomo and Agudath Israel of America v. Cuomo

Earlier this month, I blogged about Governor Cuomo’s COVID-19 restrictions that shuttered house of worship and schools in predominantly Jewish neighborhoods (See here, here, here, here, and here). Since then, I have been actively involved in some litigation.

First, I represent parents and a Jewish school that challenged the Governor’s orders. The Jewish Coalition for Religious Liberty (JCRL) was proud to partner with the Becket Fund for Religious Liberty to file suit. The case, Lebovits v. Cuomo, is currently pending in the U.S. District Court for the Northern District of New York.

Here is the summary of our argument:

For over 100 years, Orthodox Jewish girls have been learning and practicing their faith in Bais Yaakov schools. And for almost as long, the Supreme Court has recognized that the Constitution protects the “fundamental right” of parents like Plaintiffs Yitzchok and Chana Lebovits to direct their children’s religious education. That is as it should be, particularly in a country to which so many Jews came to escape persecution and to preserve the freedom to raise and educate children in their own faith.

In a different case, a court might be asked to ascertain the point at which this fundamental right must yield to a government’s claim that in-person education poses a public health risk. Indeed, this Court already considered the public health claim once in Soos v. Cuomo, — F. Supp.3d —, 2020 WL 3488742 (N.D.N.Y. June 26, 2020), enjoining Governor Cuomo’s and Mayor De Blasio’s efforts to apply an indoor capacity limitation only on houses of worship. But this case is even easier, because here the Governor himself openly admits that COVID is “not being spread by schools.” And BYAM is particularly safe, both because it follows rigorous, State-approved protocols—resulting in zero known cases to date in the school—and because it plans to test all students and staff before returning to school….

Nor can the government claim that the targeted Jewish neighborhoods have particularly high levels of COVID. To the contrary, as Cuomo recently stated that the COVID levels at issue are quite low (“To other states that’s nothing”). Indeed, across the entire country, there is not a single other state whose protocols require school closures for the COVID levels that caused the instant shutdown.

So, if neither the inherent danger of school nor a particularly high COVID rate explains the school closure, what does? The evidence admits of only two other explanations. One is religious targeting of the Orthodox, a charge the government admits. Another is that, as Cuomo recently stated, these closures are not driven by public health, but by “fear” of people “losing confidence” in the City and “moving out.” In response, the State adopted what Cuomo called a “fear-driven” response that he acknowledges is a “very blunt” policy, “cut by a hatchet,” which “is not the best way to do it,” but which someday might give way to “a smarter, more tailored policy.”

But fear is not a compelling government interest, and—even in a pandemic—constitutional rights deserve better than a hatchet job. That is particularly true where the government admits public health is not in jeopardy. BYAM and its families have a fundamental right to continue their education in the proven safety of their school, and the government has no valid reason to prevent their return to that safe environ-ent. Accordingly, a temporary restraining order should issue.

Here are some of the filings in the case:

We are grateful to Professor Stephanie Barclay (Notre Dame), who filed an amicus brief on behalf of various Muslim groups and Professor James Phillips (Chapman) who filed an amicus brief on behalf of the Center for Constitutional Jurisprudence.

Second, JCRL and Becket partnered to submit an amicus brief to the Second Circuit in  Agudath Israel of America v. Cuomo. In this case, several synagogues challenged the GOvernor’s order.

Here is the summary of the argument:

Some free exercise cases are hard, but this one is not. Under any theory of the Free Exercise Clause, a government that uses targeted restrictions to close houses of worship must face constitutional scrutiny. That is particularly true where, as here, the religious restrictions are specifically focused on a minority group. Express attacks on religious minority groups in response to real or perceived threats have a terrible historical pedigree, and do not belong in American public discourse. The First Amendment helps weed out such attacks by subjecting targeted restrictions to strict scrutiny to ensure it happens only where government has exceptionally good reasons.

Almost eighty years ago, the Supreme Court rejected an attack on another religious minority that had been scapegoated as a threat and singled out for ill treatment. See W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Few things could be more corrosive to the body politic than allowing collective guilt to be applied to a disfavored religious group because of the perceived actions of some of their co-religionists. As it was 77 years ago, it is sadly again “necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Id. at 641; accord Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (overruling Korematsu v. United States, 323 U.S. 214 (1944)). By applying strict scrutiny, the Court should nip this attack on our core constitutional values in the bud.

And it is on this question of strict scrutiny—even more than on targeting—where Governor Cuomo’s many public comments about his Order are dispositive. Where the Governor himself characterizes his Order as based on fear rather than science, as cut by a “hatchet” rather than a scalpel, and designed to manage public “anxiety” and people “moving out” of the City, no Court should uphold his Order and allow worship to be largely prohibited for a religious minority. Rather, the only constitutional course is an injunction.

I will post updates about the litigation as warranted.

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via IFTTT

Surprise: DOJ Is Not a Big Fan of Privacy-Preserving Cryptocurrencies

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The Department of Justice has been busy thinking about how to deal with cryptographic technologies. This past month, DOJ has issued two major statements on privacy-preserving tech, one of them an international rallying cry to build government backdoors into secure communications and the other a “clarification” of federal policy surrounding cryptocurrency applications. Unsurprisingly, both documents view privacy-preserving technologies as impediments to DOJ operations.

The encryption statement was mostly a reiteration of long-standing government issues with secure communications, this time wrapped in the packaging of saving children from criminals. Signatories from the Anglo governments (“Five Eyes“) plus India and Japan again asserted that “public safety [can] be protected without compromising privacy or cyber security.” This is obviously true in the abstract, but not when the “protection” in question is a government backdoor that necessarily compromises privacy and security. No new ground was broken here.

The cryptocurrency report, on the other hand, does give new insight into the developing priorities of federal bodies grappling with the rise of cryptocurrency. It’s not a lawmaking document, but rather a backgrounder laying out how cryptocurrency works and where certain applications might run afoul of established agency guidance. Still, it provides a valuable look into where the next battles in the war between privacy and surveillance will be fought. Specifically, DOJ has indicated a strong unease with “anonymity enhanced cryptocurrencies” (AECs), more commonly known as privacycoins, such as Monero and Zcash, as well as coin-mixing techniques.

The report, “Cryptocurrency: An Enforcement Framework” begins with a brief description of blockchain technologies before sparing an even briefer few words for the “breathtaking possibilities for human flourishing” that distributed ledger technologies may raise. The reader will be treated to two curt paragraphs discussing limited “legitimate uses,” including eliminating the need for a financial intermediary, minimizing transaction costs, providing an inflation shelter and micro-payments, and improved security controls. Even then, these are caveated.

This perfunctory nod to positive use cases dwarfs in comparison to the roughly fourteen pages of horribles that follow. The report recounts in exhausting detail every possible crime that could be or has been committed using cryptocurrency. There are three major categories: 1) financial transactions used to commit crimes, e.g. drug trafficking and terrorism; 2) money laundering to hide crimes or tax evasion; and 3) cryptocurrency scams and hacks.

It shouldn’t surprise anyone that America’s top cops would spend more time fearmongering on worse case scenarios than describing, say, how cryptocurrencies have been a lifeline to people in tyrannical or failing states. But a bit of context would have provided much needed clarity.

For example, the first page of the report states that “cryptocurrency is increasingly being used to buy and sell lethal drugs … contributing to an epidemic that killed over 67,000 Americans by overdose in 2018 alone.” The citation just leads to the CDC statistics on total overdose deaths, yet the claim makes it seem like it was mostly cryptocurrency that directly caused these deaths.

There is no attempt to establish exactly what proportion of cryptocurrency use is linked to overdoses or even the drug trade in general, let alone how that compares to traditional financial channels. In fact, blockchain forensics suggests that around one percent ($600 million) of global cryptocurrency transactions are linked to criminal darknet markets, which involve not only drugs but also things like forgeries and identity theft. Compare this to the some $150 billion that Americans alone spend on illegal drugs using boring old money each year. Perspective matters.

Similar problems permeate throughout. The report gives examples of serious crimes involving cryptocurrency, but there is rarely an attempt to contextualize these crimes in terms of what proportion of cryptocurrency activity is involved in such deeds and how that compares to traditional finance. An alien reading this document would come away thinking that cryptocurrency is a kind of Mos Eisley Cantina of transacting, with nary a good reason for getting involved.

This is a shame, as many of the beneficial uses of cryptocurrency could greatly aid the victim groups the DOJ rightly seeks to protect. Good guys need privacy, too—often more than anyone else. A source seeking to expose a planned terror attack might use encryption and cryptocurrency to coordinate with authorities while limiting the risk of reprisal, for instance. Having an unbalanced picture of the risks and benefits of any technology can limit the use cases that would actually further stated goals.

The report admits that most of the described crimes are and have been committed using good old-fashioned cash, yet it maintains that the scale and ease that cryptocurrency affords makes crime that much easier. Worse yet, the privacy options and nested communities of cryptocurrency makes these crimes all the opaquer to law enforcement.

There is no question that criminals may choose to use cryptocurrency, and this requires new law enforcement strategies. The DOJ extols several crackdowns on criminal activities: There is Operation DisrupTor, which took down international darknet drug markets, the Welcome to Video bust of child exploitation merchants, and the dismantling of terrorist financing campaigns. It is fantastic that violent criminal enterprises have been taken down, and blockchain forensics play a large role in these law enforcement successes.

In other words, like with encryption in general, while cryptocurrency does create new challenges for law enforcement, it also offers new opportunities for creative yet constitutional investigations of clearly anti-social criminal activities.

As someone who thinks a lot about privacy and security holes with cryptocurrency, it’s interesting to see outsider perspectives that assume things like bitcoin offer strong privacy by default. As a series by privacy researcher Eric Wall makes clear, perfect cryptocurrency anonymity is almost comically hard to achieve even with custom-built “privacycoins” offering stronger anti-surveillance tools. There are so many ways that users can leak identity data to powerful and motivated adversaries like the DOJ—if the blockchain doesn’t get you, your IP address, wallet software, poor address hygiene, and even your sleep schedule trivially could. It’s no wonder the DOJ can boast of so many crypto-seizures.

And the DOJ is far from the only sheriff in town. The report provides a helpful overview of the current regulatory landscape, which is well-regulated indeed. The Financial Crimes Enforcement Network (FinCEN) manages financial surveillance under the Bank Secrecy Act, the Office of Foreign Assets Control (OFAC) enforces international financial sanctions, the Office of the Comptroller of the Currency (OCC) oversees banks providing cryptocurrency custodial services, the Securities and Exchange Commission (SEC) chases after illegal securities trading under the guise of “initial coin offerings” (ICOs) or “decentralized finance” (DeFi), the Commodity Futures Trading Commission (CFTC) sniffs out dodgy derivatives trading, and of course there is the good old IRS to hunt down what Uncle Sam thinks is his. This doesn’t even get into state and international regulators. Needless to say, cryptocurrency is hardly a wild west.

That’s not good enough for the DOJ. One of the most concerning sections comes towards the end of the report when discussing privacycoins like Monero and Zcash. These are distributed networks like bitcoin that integrate stronger privacy techniques like ring signatures and zk-SNARKs by default. Because they are not centralized, they should be treated in the same legal bucket as bitcoin.

But the DOJ says that it considers “the use of AECs to be a high-risk activity that is indicative of possible criminal conduct.” This default suspicion of Americans who choose to exercise their right to privacy is not only alarming, it is contrary to our values as an open society.

It’s also slippery policy language: regulated exchanges must maintain financial surveillance on customers by law regardless of cryptocurrency type. For example, Gemini, a U.S.-based cryptocurrency platform, offers Zcash trading to customers in a compliant manner.

Similar problems arise when the report discusses general privacy hygiene techniques. It specifically discusses centralized mixers and “chain hopping,” which is the practice of shuffling money among different cryptocurrencies to frustrate chain analysis.

Centralized mixers already violate established law (besides being just dumb to use from a privacy and security standpoint), and in fact FinCEN just took action against one last week. But there’s nothing inherently wrong with keeping transactions discreet through decentralized means like CoinJoins and avoiding address reuse—things that FinCEN has clarified do not violate financial surveillance law.

Is DOJ confused or muddying the waters? In the worst-case scenario, governments could waste time targeting legal and secure decentralized privacy techniques when they should be focused on central parties illegally providing these services to criminal enterprises.

Since criminals often aren’t the brightest people in the world, they might tend to make a good number of identity-leaking mistakes with cryptocurrency. The DOJ should focus its attention on learning these pitfalls so they can get the biggest bang for their buck. Casting clouds of suspicion over law-abiding and innocent privacy-minded cryptocurrency users is not only contrary to our values; it wastes precious resources that could be spent sharpening effective and legal forensics tools against real crypto-criminals.

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Surprise: DOJ Is Not a Big Fan of Privacy-Preserving Cryptocurrencies

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The Department of Justice has been busy thinking about how to deal with cryptographic technologies. This past month, DOJ has issued two major statements on privacy-preserving tech, one of them an international rallying cry to build government backdoors into secure communications and the other a “clarification” of federal policy surrounding cryptocurrency applications. Unsurprisingly, both documents view privacy-preserving technologies as impediments to DOJ operations.

The encryption statement was mostly a reiteration of long-standing government issues with secure communications, this time wrapped in the packaging of saving children from criminals. Signatories from the Anglo governments (“Five Eyes“) plus India and Japan again asserted that “public safety [can] be protected without compromising privacy or cyber security.” This is obviously true in the abstract, but not when the “protection” in question is a government backdoor that necessarily compromises privacy and security. No new ground was broken here.

The cryptocurrency report, on the other hand, does give new insight into the developing priorities of federal bodies grappling with the rise of cryptocurrency. It’s not a lawmaking document, but rather a backgrounder laying out how cryptocurrency works and where certain applications might run afoul of established agency guidance. Still, it provides a valuable look into where the next battles in the war between privacy and surveillance will be fought. Specifically, DOJ has indicated a strong unease with “anonymity enhanced cryptocurrencies” (AECs), more commonly known as privacycoins, such as Monero and Zcash, as well as coin-mixing techniques.

The report, “Cryptocurrency: An Enforcement Framework” begins with a brief description of blockchain technologies before sparing an even briefer few words for the “breathtaking possibilities for human flourishing” that distributed ledger technologies may raise. The reader will be treated to two curt paragraphs discussing limited “legitimate uses,” including eliminating the need for a financial intermediary, minimizing transaction costs, providing an inflation shelter and micro-payments, and improved security controls. Even then, these are caveated.

This perfunctory nod to positive use cases dwarfs in comparison to the roughly fourteen pages of horribles that follow. The report recounts in exhausting detail every possible crime that could be or has been committed using cryptocurrency. There are three major categories: 1) financial transactions used to commit crimes, e.g. drug trafficking and terrorism; 2) money laundering to hide crimes or tax evasion; and 3) cryptocurrency scams and hacks.

It shouldn’t surprise anyone that America’s top cops would spend more time fearmongering on worse case scenarios than describing, say, how cryptocurrencies have been a lifeline to people in tyrannical or failing states. But a bit of context would have provided much needed clarity.

For example, the first page of the report states that “cryptocurrency is increasingly being used to buy and sell lethal drugs … contributing to an epidemic that killed over 67,000 Americans by overdose in 2018 alone.” The citation just leads to the CDC statistics on total overdose deaths, yet the claim makes it seem like it was mostly cryptocurrency that directly caused these deaths.

There is no attempt to establish exactly what proportion of cryptocurrency use is linked to overdoses or even the drug trade in general, let alone how that compares to traditional financial channels. In fact, blockchain forensics suggests that around one percent ($600 million) of global cryptocurrency transactions are linked to criminal darknet markets, which involve not only drugs but also things like forgeries and identity theft. Compare this to the some $150 billion that Americans alone spend on illegal drugs using boring old money each year. Perspective matters.

Similar problems permeate throughout. The report gives examples of serious crimes involving cryptocurrency, but there is rarely an attempt to contextualize these crimes in terms of what proportion of cryptocurrency activity is involved in such deeds and how that compares to traditional finance. An alien reading this document would come away thinking that cryptocurrency is a kind of Mos Eisley Cantina of transacting, with nary a good reason for getting involved.

This is a shame, as many of the beneficial uses of cryptocurrency could greatly aid the victim groups the DOJ rightly seeks to protect. Good guys need privacy, too—often more than anyone else. A source seeking to expose a planned terror attack might use encryption and cryptocurrency to coordinate with authorities while limiting the risk of reprisal, for instance. Having an unbalanced picture of the risks and benefits of any technology can limit the use cases that would actually further stated goals.

The report admits that most of the described crimes are and have been committed using good old-fashioned cash, yet it maintains that the scale and ease that cryptocurrency affords makes crime that much easier. Worse yet, the privacy options and nested communities of cryptocurrency makes these crimes all the opaquer to law enforcement.

There is no question that criminals may choose to use cryptocurrency, and this requires new law enforcement strategies. The DOJ extols several crackdowns on criminal activities: There is Operation DisrupTor, which took down international darknet drug markets, the Welcome to Video bust of child exploitation merchants, and the dismantling of terrorist financing campaigns. It is fantastic that violent criminal enterprises have been taken down, and blockchain forensics play a large role in these law enforcement successes.

In other words, like with encryption in general, while cryptocurrency does create new challenges for law enforcement, it also offers new opportunities for creative yet constitutional investigations of clearly anti-social criminal activities.

As someone who thinks a lot about privacy and security holes with cryptocurrency, it’s interesting to see outsider perspectives that assume things like bitcoin offer strong privacy by default. As a series by privacy researcher Eric Wall makes clear, perfect cryptocurrency anonymity is almost comically hard to achieve even with custom-built “privacycoins” offering stronger anti-surveillance tools. There are so many ways that users can leak identity data to powerful and motivated adversaries like the DOJ—if the blockchain doesn’t get you, your IP address, wallet software, poor address hygiene, and even your sleep schedule trivially could. It’s no wonder the DOJ can boast of so many crypto-seizures.

And the DOJ is far from the only sheriff in town. The report provides a helpful overview of the current regulatory landscape, which is well-regulated indeed. The Financial Crimes Enforcement Network (FinCEN) manages financial surveillance under the Bank Secrecy Act, the Office of Foreign Assets Control (OFAC) enforces international financial sanctions, the Office of the Comptroller of the Currency (OCC) oversees banks providing cryptocurrency custodial services, the Securities and Exchange Commission (SEC) chases after illegal securities trading under the guise of “initial coin offerings” (ICOs) or “decentralized finance” (DeFi), the Commodity Futures Trading Commission (CFTC) sniffs out dodgy derivatives trading, and of course there is the good old IRS to hunt down what Uncle Sam thinks is his. This doesn’t even get into state and international regulators. Needless to say, cryptocurrency is hardly a wild west.

That’s not good enough for the DOJ. One of the most concerning sections comes towards the end of the report when discussing privacycoins like Monero and Zcash. These are distributed networks like bitcoin that integrate stronger privacy techniques like ring signatures and zk-SNARKs by default. Because they are not centralized, they should be treated in the same legal bucket as bitcoin.

But the DOJ says that it considers “the use of AECs to be a high-risk activity that is indicative of possible criminal conduct.” This default suspicion of Americans who choose to exercise their right to privacy is not only alarming, it is contrary to our values as an open society.

It’s also slippery policy language: regulated exchanges must maintain financial surveillance on customers by law regardless of cryptocurrency type. For example, Gemini, a U.S.-based cryptocurrency platform, offers Zcash trading to customers in a compliant manner.

Similar problems arise when the report discusses general privacy hygiene techniques. It specifically discusses centralized mixers and “chain hopping,” which is the practice of shuffling money among different cryptocurrencies to frustrate chain analysis.

Centralized mixers already violate established law (besides being just dumb to use from a privacy and security standpoint), and in fact FinCEN just took action against one last week. But there’s nothing inherently wrong with keeping transactions discreet through decentralized means like CoinJoins and avoiding address reuse—things that FinCEN has clarified do not violate financial surveillance law.

Is DOJ confused or muddying the waters? In the worst-case scenario, governments could waste time targeting legal and secure decentralized privacy techniques when they should be focused on central parties illegally providing these services to criminal enterprises.

Since criminals often aren’t the brightest people in the world, they might tend to make a good number of identity-leaking mistakes with cryptocurrency. The DOJ should focus its attention on learning these pitfalls so they can get the biggest bang for their buck. Casting clouds of suspicion over law-abiding and innocent privacy-minded cryptocurrency users is not only contrary to our values; it wastes precious resources that could be spent sharpening effective and legal forensics tools against real crypto-criminals.

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The Original Meaning of “Born … in the United States”

This post considers the original public meaning of the citizenship clause’s phrase “born … in the United States” (a more detailed discussion is in Part II.A. of my forthcoming article). As mentioned in my opening post, the question has particular importance to people born in American Samoa, a U.S. territory not currently considered “in the United States” for citizenship purposes. And it may have broader implications for an insidious group of Supreme Court cases.

I’ll begin with a word about methodology. I use an “original meaning” approach, a common (though not universal) method among originalists that traces its modern lineage to Justice Scalia. The idea is to ask what the words of the relevant constitutional phrase meant in legal communication around the time of the enactment. It’s not primarily concerned with the intent of the drafters or ratifiers, although what the drafters and ratifiers said or assumed about their language may be evidence of its common meaning. In particular, pre-enactment uses of the language may be especially important to show a phrase’s linguistic context. (There’s more on my approach here).

What can we discover about the nineteenth-century view of what was “in the United States”? One might suppose that the phrase could refer only to states admitted to the union (literally the states that are united). But that’s not how writers of the time, and particularly courts, understood it. Chief Justice Marshall considered the matter directly in Loughborough v. Blake (1820), concluding: “[The United States] is the name given to our great republic, which is composed of States and territories. The district of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania.” And in Cross v. Harrison (1853), the Court observed that “[b]y the ratifications of the treaty [of Guadalupe Hidalgo ending the Mexican War], California became a part of the United States.”

What, then, was not in the United States? The Court considered this question in another post-Mexican War case, Fleming v. Page (1850). The question was whether the Mexican city of Tampico, while under U.S. military occupation during the war, was part of the United States. The Court held it was not. Although the occupation placed Tampico under U.S. “sovereignty and dominion,” that status was only temporary and not accompanied by any annexation or cession; thus (the Court said) the “boundaries of the United States … were not extended by the conquest.” Fleming strongly implied, however, that if annexation or cession occurred, that would place the territory within the United States (a point confirmed a few years later in Cross). And for what it’s worth, the Court reaffirmed Fleming‘s analysis in Neely v. Henkel (1901) with respect to Cuba, which it found not to be part of the United States, although then under U.S. occupation, because there had been no formal acquisition and the occupation was understood to be temporary.

In an original meaning analysis, these cases are not important as precedent; they are important in showing the linguistic background of what it meant to be “born … in the United States.” None of these cases was a citizenship case, but together they indicate a general understanding of what “the United States” encompassed around the time the Fourteenth Amendment was adopted.

Other nineteenth-century practices and assumptions confirm that understanding. Specifically as to citizenship law, the 1789 Constitution did not define citizenship, leaving its definition to common law. U.S. common law generally followed the British rule of “jus soli,” as explained by Blackstone: birth within sovereign territory established citizenship (or subjectship in Britain). And in the nineteenth century, persons born in U.S. territories were treated as U.S. citizens by the common law of jus soli (indicating that they were considered born in the United States).

Turning to the drafting of the Fourteenth Amendment, it seems very likely that its drafters understood “born … in the United States” to confirm citizenship upon persons born in territories under permanent U.S. sovereignty. That was the common law rule, and many people at the time described the clause as codifying the common law; it would have been odd if the drafters meant to reject it. Further, the clause’s main point was to overturn Dred Scott v. Sandford and confirm citizenship for people of African descent. It would be very odd for the drafters to deny this protection to people of African descent in the territories (especially since Dred Scott was itself about a slave who had lived in the territories). Finally, in discussing the clause, the drafters wanted to exclude from citizenship members of Native American tribes with which the U.S. had treaties guaranteeing partial sovereignty. As I’ll discuss later, the drafters saw the clause’s “subject to the jurisdiction” phrase as essential to accomplish that result. Thus a central premise of their discussion was that tribal Native Americans in the territories were not excluded by the “born … in the United States” language.

The drafters’ assumptions and purposes therefore confirm the meaning indicated by the pre-drafting materials: “in the United States” meant under U.S. permanent sovereignty, whether a state or a territory.

So why is this a hard question today? The trouble began after the Spanish-American War, when the U.S. acquired distant, culturally distinct and (importantly at the time) non-White territories. These acquisitions posed the question whether they would have the full protection of the Constitution. In a series of early twentieth century decisions known as the Insular Cases, the Supreme Court said no.

The Insular Cases were avowedly nonoriginalist and policy-driven. (For a great account of the litigation and the struggle for Puerto Rican citizenship, I recommend Sam Erman’s magnificent book Almost Citizens). Justice Henry Brown, providing the decisive vote in the key case Downes v. Bidwell (1901), noted the “serious” “consequences” of extending constitutional protections to places inhabited by “alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought.” Concurring, Justice Edward White similarly objected to “bestowal of citizenship on those absolutely unfit to receive it,” being members of “an uncivilized race.” The Court adopted White’s suggestion that “unincorporated” territories (meaning the island territories) should enjoy only limited constitutional protections. And the incorporated/unincorporated distinction became the basis for the denying constitutional citizenship to natives of those territories.

The Insular Cases are also important for what they did not say. The Justices in the majority did not point to any originalist materials supporting their idea of “unincorporated” territory that received lesser constitutional protection. That indicates they were simply inventing it. As Justice Harlan wrote, dissenting in Downes: “I am constrained to say that this idea of ‘incorporation’ has some occult meaning which my mind does not apprehend.” Or as modern originalists Gary Lawson and Guy Seidman conclude (in their outstanding book The Constitution of Empire): “The doctrine of ‘territorial incorporation’ that emerged from The Insular Cases is transparently an invention designed to facilitate the felt need of a particular moment in American history.”

Unfortunately the Court’s racist policymaking in the Insular Cases remains the law of the land, and the Insular Cases were the basis for the D.C. Circuit’s rejection of U.S. citizenship for American Samoans described in my prior post. But the Constitution’s original meaning is to the contrary. In the nineteenth century, “in the United States” meant what Marshall said it meant: in the states and territories (without differentiation as to types of territories). Consequently, under the citizenship clause’s original meaning, American Samoans are constitutional citizens. And more fundamentally, the Insular Cases, which continue to limit constitutional rights more broadly in the insular territories, are an affront to the Constitution’s original meaning.

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The Original Meaning of “Born … in the United States”

This post considers the original public meaning of the citizenship clause’s phrase “born … in the United States” (a more detailed discussion is in Part II.A. of my forthcoming article). As mentioned in my opening post, the question has particular importance to people born in American Samoa, a U.S. territory not currently considered “in the United States” for citizenship purposes. And it may have broader implications for an insidious group of Supreme Court cases.

I’ll begin with a word about methodology. I use an “original meaning” approach, a common (though not universal) method among originalists that traces its modern lineage to Justice Scalia. The idea is to ask what the words of the relevant constitutional phrase meant in legal communication around the time of the enactment. It’s not primarily concerned with the intent of the drafters or ratifiers, although what the drafters and ratifiers said or assumed about their language may be evidence of its common meaning. In particular, pre-enactment uses of the language may be especially important to show a phrase’s linguistic context. (There’s more on my approach here).

What can we discover about the nineteenth-century view of what was “in the United States”? One might suppose that the phrase could refer only to states admitted to the union (literally the states that are united). But that’s not how writers of the time, and particularly courts, understood it. Chief Justice Marshall considered the matter directly in Loughborough v. Blake (1820), concluding: “[The United States] is the name given to our great republic, which is composed of States and territories. The district of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania.” And in Cross v. Harrison (1853), the Court observed that “[b]y the ratifications of the treaty [of Guadalupe Hidalgo ending the Mexican War], California became a part of the United States.”

What, then, was not in the United States? The Court considered this question in another post-Mexican War case, Fleming v. Page (1850). The question was whether the Mexican city of Tampico, while under U.S. military occupation during the war, was part of the United States. The Court held it was not. Although the occupation placed Tampico under U.S. “sovereignty and dominion,” that status was only temporary and not accompanied by any annexation or cession; thus (the Court said) the “boundaries of the United States … were not extended by the conquest.” Fleming strongly implied, however, that if annexation or cession occurred, that would place the territory within the United States (a point confirmed a few years later in Cross). And for what it’s worth, the Court reaffirmed Fleming‘s analysis in Neely v. Henkel (1901) with respect to Cuba, which it found not to be part of the United States, although then under U.S. occupation, because there had been no formal acquisition and the occupation was understood to be temporary.

In an original meaning analysis, these cases are not important as precedent; they are important in showing the linguistic background of what it meant to be “born … in the United States.” None of these cases was a citizenship case, but together they indicate a general understanding of what “the United States” encompassed around the time the Fourteenth Amendment was adopted.

Other nineteenth-century practices and assumptions confirm that understanding. Specifically as to citizenship law, the 1789 Constitution did not define citizenship, leaving its definition to common law. U.S. common law generally followed the British rule of “jus soli,” as explained by Blackstone: birth within sovereign territory established citizenship (or subjectship in Britain). And in the nineteenth century, persons born in U.S. territories were treated as U.S. citizens by the common law of jus soli (indicating that they were considered born in the United States).

Turning to the drafting of the Fourteenth Amendment, it seems very likely that its drafters understood “born … in the United States” to confirm citizenship upon persons born in territories under permanent U.S. sovereignty. That was the common law rule, and many people at the time described the clause as codifying the common law; it would have been odd if the drafters meant to reject it. Further, the clause’s main point was to overturn Dred Scott v. Sandford and confirm citizenship for people of African descent. It would be very odd for the drafters to deny this protection to people of African descent in the territories (especially since Dred Scott was itself about a slave who had lived in the territories). Finally, in discussing the clause, the drafters wanted to exclude from citizenship members of Native American tribes with which the U.S. had treaties guaranteeing partial sovereignty. As I’ll discuss later, the drafters saw the clause’s “subject to the jurisdiction” phrase as essential to accomplish that result. Thus a central premise of their discussion was that tribal Native Americans in the territories were not excluded by the “born … in the United States” language.

The drafters’ assumptions and purposes therefore confirm the meaning indicated by the pre-drafting materials: “in the United States” meant under U.S. permanent sovereignty, whether a state or a territory.

So why is this a hard question today? The trouble began after the Spanish-American War, when the U.S. acquired distant, culturally distinct and (importantly at the time) non-White territories. These acquisitions posed the question whether they would have the full protection of the Constitution. In a series of early twentieth century decisions known as the Insular Cases, the Supreme Court said no.

The Insular Cases were avowedly nonoriginalist and policy-driven. (For a great account of the litigation and the struggle for Puerto Rican citizenship, I recommend Sam Erman’s magnificent book Almost Citizens). Justice Henry Brown, providing the decisive vote in the key case Downes v. Bidwell (1901), noted the “serious” “consequences” of extending constitutional protections to places inhabited by “alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought.” Concurring, Justice Edward White similarly objected to “bestowal of citizenship on those absolutely unfit to receive it,” being members of “an uncivilized race.” The Court adopted White’s suggestion that “unincorporated” territories (meaning the island territories) should enjoy only limited constitutional protections. And the incorporated/unincorporated distinction became the basis for the denying constitutional citizenship to natives of those territories.

The Insular Cases are also important for what they did not say. The Justices in the majority did not point to any originalist materials supporting their idea of “unincorporated” territory that received lesser constitutional protection. That indicates they were simply inventing it. As Justice Harlan wrote, dissenting in Downes: “I am constrained to say that this idea of ‘incorporation’ has some occult meaning which my mind does not apprehend.” Or as modern originalists Gary Lawson and Guy Seidman conclude (in their outstanding book The Constitution of Empire): “The doctrine of ‘territorial incorporation’ that emerged from The Insular Cases is transparently an invention designed to facilitate the felt need of a particular moment in American history.”

Unfortunately the Court’s racist policymaking in the Insular Cases remains the law of the land, and the Insular Cases were the basis for the D.C. Circuit’s rejection of U.S. citizenship for American Samoans described in my prior post. But the Constitution’s original meaning is to the contrary. In the nineteenth century, “in the United States” meant what Marshall said it meant: in the states and territories (without differentiation as to types of territories). Consequently, under the citizenship clause’s original meaning, American Samoans are constitutional citizens. And more fundamentally, the Insular Cases, which continue to limit constitutional rights more broadly in the insular territories, are an affront to the Constitution’s original meaning.

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