JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd. – Oral Argument – April 17, 2002

Media for JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd.

Audio Transcription for Opinion Announcement – June 10, 2002 in JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd.

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William H. Rehnquist:

We’ll hear argument next in numbers oh one six fifty-one, JP Morgan Chase Bank versus Traffic Stream.

[NS] Ms. Reid.

Sarah L. Reid:

Mr. Chief Justice and may it please the Court.

The alienage diversity statute provides that the Federal courts have original jurisdiction of civil actions between citizens of different States and citizens who’re subjects of a foreign State where the matter in controversy exceeds seventy-five thousand dollars.

The question presented today is whether respondent, Traffic Stream BVI Infrastructure Limited, a corporation incorporated under the laws of the British Virgin Islands, qualifies as a subject of the United Kingdom within the meaning of that statute.

Petitioner, JP Morgan Chase Bank, submits it clearly does.

It is well settled that the term, citizens and subjects, applies to corporations and not just natural persons.

It is also not controversial that a subject is one who owes allegiance to and is under the protection of a foreign State.

Sandra Day O’Connor:

Is this a question of Federal law?

Sarah L. Reid:

In terms of looking to this matter of the…

subject?

In determining…

Sandra Day O’Connor:

who is a citizen or subject of a foreign State, or whether an in- or whether a corporation in this instance is a citizen or subject? Is that a Federal law question?

Sarah L. Reid:

Yes, Your Honor, we would submit it is in the first instance, but in saying that must then look at the nature of the relationship and look at the foreign State which is asserting the sovereignty, and certainly that is a matter that we should consider ca- carefully.

William H. Rehnquist:

W- When you say the United Kingdom has expressed its sovereignty, Ms. Reid, do you mean that you’re looking at their statutes, or that their diplomatic representatives have made a representation?

Sarah L. Reid:

Both, both the fact that they have i- intervened as an amicus in this and in other cases, but also, particularly in the case of respondent, if one looks at the BVI constitution enacted in nineteen seventy-six, it is enacted as a result of the act of parliament and the order of parliament, and it reserves expressly all power to the Crown ultimately, and it is only from the Crown that the l- the law is then delegated to the elected legislative council.

Ruth Bader Ginsburg:

Ms. Reid, every corporation must be formed under some, the law of some sovereign, and if that’s right, a corporation just can’t generate itself.

Sarah L. Reid:

I would s- say, Your Honor, in ninety-nine percent of the cases, that you’re right.

Antonin Scalia:

The United States would also say that that’s not a corporation.

Sarah L. Reid:

Right,

Antonin Scalia:

[Inaudible]

Sarah L. Reid:

exactly.

Antonin Scalia:

So I m- I I think you you could say in a hundred percent of the cases if we acknowledge it as a corporation, it will’ve been formed under the law of some…

I would…

Sarah L. Reid:

agree, Your Honor.

David H. Souter:

And I suppose even as to natural persons in this sort of eccentric island i- in the real world, if if we didn’t recognize their claim to i- to individual sovereignty or nationality, in the real world I assume they would be subject to some other national sovereign and they’d v- by that virtue, by virtue of that be swept up under the the term, citizen or subject, wouldn’t they?

Sarah L. Reid:

I would agree.

David H. Souter:

Yeah.

Anthony M. Kennedy:

[NS] L- L- L- Let’s assume a- and I’m not sure that this is an accurate proposition of international law, that a subject of a sovereign has a special duty to obey the laws of that sovereign.

Sarah L. Reid:

Yes, Your Honor.

Anthony M. Kennedy:

subject?

Sarah L. Reid:

I- an an an analogy, though, not completely perfect, but it i- you -ow JP Morgan Chase is a corporation organized under the laws of the State of New York.

Anthony M. Kennedy:

Yes.

Sarah L. Reid:

Similarly, a corporation set up under the laws of of applicable oversea territories in the first instance of course, must follow the laws of their legislative district, but they must also abide by an agreed upon laws and conventions with the United Kingdom, and that is specifically an issue in the Caribbean, where there are certain financial disclosure, which is is i- mandated in part through the relationship, constitutional relationship between the United Kingdom…

Anthony M. Kennedy:

Where can we what w- where can we document the proposition that you’ve just stated? What what do I look to t-

Sarah L. Reid:

To a certain extent, the treaties, that i- for example the Narcotics Enforcement Treaty.

Anthony M. Kennedy:

She cited t-

Sarah L. Reid:

and the United Kingdom what the authority and sovereignty that the United Kingdom has…

Anthony M. Kennedy:

No more established authority like Blackstone, or…

Sarah L. Reid:

Not that i- not that we have have cited to Your Honor, though in many ways there are parliamentary debates that you can tha- a- access concerning i- which are referenced in the white papers concerning the relationship between the overseas territories and and the g- and the King, which are quite remiziscen- reminiscent of the debates before the American Revolution in terms of virtual repenta- representation and citizenship…

Sandra Day O’Connor:

If we were dealing with a private individual rather than a corporation, do you think there c- could be a stateless person who wouldn’t fit under this stat-?

Sarah L. Reid:

In very, very rare instances, and those instances are where the individual has either renounced their citizenship, which has ye- on occasion occurred, or where they have been, you know, exiled, and have not yet acquired citizenship somewhere else, and we would submit that the cases cited by the Matimak Court deal with those kinds of statelessness.

Anthony M. Kennedy:

Suppose that kind of person that Justice O’Connor and you just discussed, a true stateless person, is temporarily in a a port of Au- Australia, or San Francisco, or Monterey, Mexico, c- c- can it be said consistently with th- the statute here in question that they are at least temporarily subject to the laws of Australia while they’re there, bec- because they’re stateless and they have no other higher obligation, so they’re th- then subject…

Sarah L. Reid:

No.

including protection.

Antonin Scalia:

The phrase is, subject of, isn’t it?

Yes, subject of a foreign state.

Antonin Scalia:

to the laws of that country, and presumably to the Government of that country, but they they are not necessarily a subject of that country.

Sarah L. Reid:

That is true,

Your Honor.

Anthony M. Kennedy:

be stateless persons who are not within the clause.

Sarah L. Reid:

Yes.

David H. Souter:

And the reason you take that position, I take it, is that the the impetus for the constitutional grant was in effect to to keep countries from getting mad, rather than for purposes of extending jurisdiction as such to everyone who whom whom one might want to sue in a Federal court.

Sarah L. Reid:

Right.

Antonin Scalia:

I must say, I d- I didn’t understand what you mean by foreign entanglements.

Sarah L. Reid:

[Inaudible]

The…

Sarah L. Reid:

The The…

Antonin Scalia:

me- -ike alliances with France, or things like that? What…

Sarah L. Reid:

No.

In other words, don’t want to make them mad.

Antonin Scalia:

well that…

Sarah L. Reid:

That w- i- tha- that I think, was the entanglement that they were…

It’s a strange…

Antonin Scalia:

term for it then.

Sarah L. Reid:

[Inaudible]

[Inaudible]

Antonin Scalia:

some things that can also…

Sarah L. Reid:

And just briefly on the issue of the promotion of commerce, I wanted t- to make the point that JP Morgan Chase Bank and the financial markets, you know, consider the Matimak decisions as ones to have potentially very deleterious effects on international commerce.

Ruth Bader Ginsburg:

Well, why? i- w- Aren’t New York courts fairly versus this is not a question of saying for our corporation you can’t enter a US court.

Sarah L. Reid:

Absolutely, and I practice before them f- frequently, but the perception on the part of foreign foreigners is that the Federal system is one with procedures are uniform across the country, and a per- predictability, perhaps, i- that i- is more a matter of perception than of reality.

Antonin Scalia:

I know Alabamans who are afraid of New York courts.

Sarah L. Reid:

And vice versa.

[Inaudible]

Ruth Bader Ginsburg:

But it it is a little different from what it was in the days of the post revolution, when the British creditor said State courts are simply not going to let them collect on their debts.

Sarah L. Reid:

That that’s true.

Ruth Bader Ginsburg:

Anyway, you you I think no one has suggested a dynamic interpretation of thirteen thirty-two, so that if the original rationale is not as strong today as it was then, that somehow the meaning of thirteen thirty-two would change.

Sarah L. Reid:

No.

Ruth Bader Ginsburg:

No i- o- no other circuit has followed the Second Circuit, have they?

Sarah L. Reid:

No.

William H. Rehnquist:

-ish to reserve the rest of your time?

Sarah L. Reid:

Yes, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Ms. Reid.

Jeffrey P. Minear:

[NS] Thank you, Mr. Chief Justice, and may it please the Court.

we we reach.

William H. Rehnquist:

the say the UK takes one position and makes a representation, but the State Dep- our State Department disagrees?

We…

William H. Rehnquist:

wh- what sor- what sort of an action should our t- courts take?

Jeffrey P. Minear:

We think that you should defer to the United States views on these matters.

So then,

William H. Rehnquist:

the i- i- i- if you were to submit the views of the State Department in a case like this, no matter what else there is in the record, we should accept the views of the State Department?

Jeffrey P. Minear:

Your cases suggest that that’s that is the result that would follow.

William H. Rehnquist:

Yes, but…

Yes, we do, yes. To answer pointedly,

Jeffrey P. Minear:

yes, we we do believe that you should defer to the United States views, as because oftentimes on the question that l- let me distinguish here the question of subject is, of course, the meaning of that term is a legal question that this Court would interpret according to its normal practices, but the question of whether a foreign entity is a foreign State is a question that is properly entrusted to the political branches.

Anthony M. Kennedy:

Can you comment on the stateless person problem, n- not not not a a a legal person?

Jeffrey P. Minear:

But a an individual.

Ruth Bader Ginsburg:

But there are some US citizens who don’t have access to the Federal court because they’re not a citizen of any State.

Jeffrey P. Minear:

That is correct.

William H. Rehnquist:

Thank you, Mr. Minear.

Craig J. Albert:

[NS] Mr. Chief Justice, and may it please the Court.

You’re…

William H. Rehnquist:

you’re you’re now relying on Eng- English law, I take it.

Craig J. Albert:

I’m referring to English law,

yes.

William H. Rehnquist:

I think that may create some difficulty for United States courts, particularly when the UK is is making representations here as as to one point, then you you you tell us we have to lo- read English law, which we’re much less familiar with, of course, than American law.

Craig J. Albert:

Yes, Mr. Chief Justice.

where…

William H. Rehnquist:

I I I I realize that.

Craig J. Albert:

It would be a much more difficult inquiry had the United Kingdom actually cited to any statute or any case ever decided in any English court anywhere on the subject,

but it has done no such…

Sandra Day O’Connor:

even even if the British Nationality can be read as saying that corporations formed in the British Virgin Island are not citizens, it doesn’t say they’re not subjects of the United Kingdom, does it?

Craig J. Albert:

Well, actually, the British Nationality Act carves out classes of citizens, and classes of subjects, and persons who are neither Bri- i- neither citizens nor subjects,

so in fact it does…

Sandra Day O’Connor:

find anything that indicated to me that a corporation formed in the British Virgin Islands was not a subject of the UK, and we are dealing here with a brief filed by the UK that says they are subjects, so what do we…

Craig J. Albert:

Well, I I think that the question here is whether the deference should be unyielding to a litigation and advocacy position which the British Government puts forth in its briefs versus the substantive basis for that position which one would…

Just looking at it…

Sandra Day O’Connor:

from an American, US perspective under the statute, citizens are subjects, and the fact that it is a corporation formed in the British Virgin Islands would lead me to conclude that is a subject of a foreign nation under our own statute.

Craig J. Albert:

Respectfully, Justice Honor O- O’Connor, I I think I I think that the conclusion ought to be different, because there is nothing wi- the f- the first step in the inquiry is, what would thirteen thirty-two A two have to say about corporations, and we know that thirteen thirty-two A two is a reference to citizens or subjects which is consistently wh- which before the Letson fiction was adopted had had resulted on- had resulted in severe conflict over whether there was jurisdiction for corporations at all.

That’s going back…

Ruth Bader Ginsburg:

to a law that has long since become abs- obsolete.

Craig J. Albert:

Respectfully, Justice Ginsburg, thirteen thirty-two C does not say that corporations are citizens of their States.

Are you are you saying…

Ruth Bader Ginsburg:

that those words cover only human individuals and not…

corporation?

Craig J. Albert:

thirteen thirty-two A two, humans, then applying the thirteen thirty-two C presumption, that would bring corporations within the scope of diversity jurisdiction.

William H. Rehnquist:

Well, thirteen thirty-two A does use the term, alien at at the very end.

Craig J. Albert:

Yes, i- there there is a reference to it, but not in the not in the not in the provision of thirteen thirty-two A two on the on the o- on the extension of that dispute between citizens of a State and citizens or subjects of a foreign State, and in fact, Mr. Chief Justice, Congress in fact had used the word, aliens, the broader r- the broader word, in the original enactment, in the Judiciary Act of seventeen eighty-nine, but Congress abandoned that language when it revised the statute in eighteen seventy-five.

So…

Ruth Bader Ginsburg:

corporation if I say is it is is that does that come within thirteen thirty-two jurisdiction, a corporation formed in Scotland?

Craig J. Albert:

In Scotland, yes, because a because the Scottish people, the English and Welsh people, and the people of Northern Ireland all are citizens of the Metropolitan United Kingdom, the United Kingdom of Great Britain and Northern Ireland.

Ruth Bader Ginsburg:

Well, my problem is if if take some the British Virgin Islands, a place that’s s- still held in something like colonial status, that you say that Scotland, which has a great deal more independence, belongs to the UK in the sense that it is a subject of the UK, but the British Virgin Islands, or the Cayman Islands, that have less independence, are not subjects? That…

Craig J. Albert:

[Inaudible]

Ruth Bader Ginsburg:

That may be something a lawyer could understand, but I don’t think it makes much sense, does it?

Craig J. Albert:

I think that the distinction is, i- no one is disputing here that the British Virgin Islands is subordinate to the United Kingdom, no one is disputing that its people ultimately are answerable to the authority of the United Kingdom, but that that…

simply goes…

Craig J. Albert:

[Inaudible]

Ruth Bader Ginsburg:

subjects?

Craig J. Albert:

Subject to, not subject of, and that is why the British Nationality Act is so important here,

because the British…

Stephen G. Breyer:

I guess then maybe corporations incorporated in Scotland are not citizens or subjects either, because it doesn’t say anything about corporations, does it?

Craig J. Albert:

i- No, Justice Breyer.

Stephen G. Breyer:

Wouldn’t people then be surprised if it doesn’t say anything, if we said that Scottish corporations weren’t citizens, or in fact, would the people who live in these islands be a little surprised if the Supreme Court were to say, you’re not nationals? A- how how is it work? This this is not an act that refers to corporations.

Craig J. Albert:

The proper allegation in a case like this would be that a corporation is incorporated under the laws of Scotland and is therefore a citizen or subject of a subject of the United Kingdom.

And the reason that…

Stephen G. Breyer:

they are but these people aren’t is?

Craig J. Albert:

Is because England, Wales, Scotland, and Northern Ireland, along with the Channel Islands, are the constituent parts of the Metropolitan United Kingdom.

As of…

Stephen G. Breyer:

English law, the reason that although their Eng- their law says, I guess, that counselor law, the diplomatic manual, the thing that says you have to swear allegiance if you’re in the British foreign you know, you’re in the British Virgin Islands, all the laws are subject to British authority and so forth, so the reason, in your opinion, despite all those things they list in their brief, that makes it very, very similar, the reason that a corporation incorporated in Wales is a citizen of the United Kingdom or subject of the United Kingdom but these are not, because it’s the British Virgin Islands, is?

Craig J. Albert:

Because when parliament enacts a law of general applicability within the United Kingdom, its applicability is to those four jurisdictions that I’ve mentioned, England, Wales, Scotland, and Northern Ireland, along with in in some instances the Channel Islands, but it does not, of its force, extend to the British Overseas Territories, the British dependent Te- the and the what what’s now known as the British Overseas Territories.

Are they stateless…

Ruth Bader Ginsburg:

people?

Craig J. Albert:

They are not stateless people at all.

Ruth Bader Ginsburg:

The- they are British the their State is is the UK?

Craig J. Albert:

They are just a- i- they are they are very similar to what our territorial residents would have been before we…

extended citizenship.

Ruth Bader Ginsburg:

of and to the United States, I assume, the residents in the US Territories.

Craig J. Albert:

residents of U.S.

What were they…

Ruth Bader Ginsburg:

before they were citizens?

Craig J. Albert:

They were nationals and natives.

They were not…

Ruth Bader Ginsburg:

stateless, were they?

Craig J. Albert:

No, they were not.

Ruth Bader Ginsburg:

And so why isn’t a corporation organized in the British Virgin Islands or the Cayman Islands why is that stateless? There’s only one State it can belong to, because these are not independent sovereigns.

Craig J. Albert:

I do not advocate the position that the Matimak the Matimak Court adopted that these corporations were stateless.

But they…

Ruth Bader Ginsburg:

belong to some State, and if you wh- either they belong to the UK, or they belong to something that isn’t a sovereign, or they’re stateless.

Craig J. Albert:

i- They belong to the United Kingdom, but that does not answer the statutory question at issue here, because even if they belong to a kingdo-, e- even if they belong to the United Kingdom, that does not make them citizens or subjects of the kingdom.

Antonin Scalia:

[Inaudible]

Craig J. Albert:

Congress…

Antonin Scalia:

Could could I ask i- the, the word subject in the statute just tracks the word subject in the Constitution, and I wasn’t the status of the colonists before our Revolution precisely the same as the status of the British Virgin Islands?

Craig J. Albert:

Justice Scalia…

Antonin Scalia:

Which would lead me to to the inquiry whether the even the revolutionaries considered themselves subjects of the British Crown.

Craig J. Albert:

The laughter from the audience in fact i- -ocuses focuses the point here, because that was the fundamental shift in the understanding of the colonists and their relationship to the British Government.

there was a…

Antonin Scalia:

been.

Craig J. Albert:

Oh, we had been.

We had been.

Antonin Scalia:

occupied the same status in those days as…

And and why wasn’t…

John Paul Stevens:

that status the one that’s comparable to the status of citizens in the Virgin Islands here?

Justice…

John Paul Stevens:

claiming that they’ve been abandoned by the by the Crown here.

Craig J. Albert:

Justice Stevens, there are two places in which that abandonment can come about.

Of course,

John Paul Stevens:

that hasn’t happened here…

Craig J. Albert:

It certainly has not happened here, but there is another way, because when nations adopt the idea of volitional allegiance, the new idea of what a subject is, then the nation itself can change its laws to determine what the status of its people are.

Stephen G. Breyer:

-ritish Nationality Act has nothing to do with corporations.

Craig J. Albert:

But the British Nationality Act does have to do with what the people within the British Virgin Islands…

And the other thing that brings up is your point,

Stephen G. Breyer:

I understand your point there, but so I’m cutting you off, but they they say that in these places the Queen appoints the Governor, the Governor is responsible for internal security, public service, and court administration, but all the laws they pass in these places are subject to review by the Foreign Office, the Commonwealth Office, and then the q- the the the Queen in Council, which is a group of particular individuals, that the Legislative Council swears its allegiance to to the Crown before it takes place, and so they haven’t just discarded this place at all.

Craig J. Albert:

Or more particularly, as we would treat one of our territories, because the ability of Congress to legislate…

You mean,

Stephen G. Breyer:

terri- people in our Territories like Puerto Rico, let’s say, which is a Commonwealth…

Craig J. Albert:

Yes.

Stephen G. Breyer:

or or Samoa, they are not subjects of the United Sta-

Craig J. Albert:

They are not subjects…

of the United States…

Stephen G. Breyer:

to the United States, and are not subject to its laws.

Craig J. Albert:

The position that that has been advocated here, and I think that the a- a- and that -as been uniformly advanced by the scholars is that citizenship versus subjectship is simply i- simply two sides of the same coin determini i- describing what the relationship is of one in either a democracy or a monarchy, and what has happened in the United Kingdom is that as the country has evolved from a strict monarchy to a constitutional monarchy with democratic principles, that the ideas of subjectship have evolved, and the idea of citizenship has been incorporated into their law.

Ruth Bader Ginsburg:

Do you…

feel some…

Ruth Bader Ginsburg:

discomfort in saying, well, that’s what the UK law is, and you told us that what the Companies Act means, when the UK itself is telling this Court, you’ve got it all wrong? er are y- you you’re standing before the Court as an interpreter of UK law.

Craig J. Albert:

I would have thought that had the United Kingdom had a statute on which it could rely, or any decision on which it could rely, it would cite them.

Which which it’s well go ahead.

Antonin Scalia:

well go on…

Craig J. Albert:

Is in the lodging at page L thirty-one, an excerpt from its diplomatic manual which describes the various categories under the British Nationality Act.

Anthony M. Kennedy:

next time I’m…

going…

Craig J. Albert:

manual b- th-

derives its basis.

John Paul Stevens:

Is it a fair summary to say that th- it’s a litigating position and therefore we do not owe it Chevron deference?

Craig J. Albert:

I think it is a pure advocacy position,

and…

Craig J. Albert:

it does not deserve…

Chevron deference.

Anthony M. Kennedy:

arguing for what we might call a variable definition of subject, that VI residents are subjects of Great Britain in some cases and not others? That is to say, you re- said earlier that the UK could make a treaty binding on VI residents, VI citiz- so that you can be subject of th- Great Britain in some instances and not others.

Craig J. Albert:

Justice Kennedy, the UK…

itself…

Anthony M. Kennedy:

If I c- characterize your argument that way, would would that be a proper characterization of your argument?

Craig J. Albert:

I think that at the second level of Matimak inquiry, when th- th- that the Court would necessarily have to inquire as to whether or not a person is or is not a subject, and I think that that I would be w- I am willing to concede that Britain could change its statute for general purposes or for limited purposes so as to give to these territorial citizens the right to proceed in American courts, and we would defer to that simply by reason of simply simply for reasons of international comity.

Anthony M. Kennedy:

But doesn’t that potential indicate that there is sovereignty because isn’t…

Once…

Anthony M. Kennedy:

the capacity to exercise power and authority?

Craig J. Albert:

Sovereignty is that power.

Anthony M. Kennedy:

They are subjects because of the potential of the exercise of that power.

Craig J. Albert:

The land that sits in the middle of London at Leicester Square, famous Tolk versus Moxie Land, is subject to the sovereignty of the United Kingdom, but that does not make the land a subject, and so the mere fact that the United Kingdom adopts legislation which regulates behavior of its people, both within the metropolitan United Kingdom and within its territories, does not mean that the people within its territories are subjects for purposes of thirteen thirty-two, and I say that becau- i- i- especially in light of the fact that as we stand here today the United Kingdom has adopted a new statute which has not yet come into force, because a statutory instrument has not yet been signed for it, which will render the British Depedent Territories’ citizens to be British citizens, giving those British citizens now the right of abode within the United Kingdom, and that will happen in the future.

How does that affect a…

Ruth Bader Ginsburg:

corporation? You’re talking about what will be the status of individuals.

Craig J. Albert:

I think that a that a- applying the l- that the proper way to apply the Letson principle here is that a British Virgin Islands Corporation should never be subject to diversity to to diversity grou- diveristy jurisdiction precisely because the presumption is that its shareholders have opted for British Virgin Islands status rather than opted for British status.

And that would…

Ruth Bader Ginsburg:

would be the case it would be that Congress would be immobile as well.

Craig J. Albert:

The S- Second Circuit did not reach the constitutional…

Well, that’s…

Ruth Bader Ginsburg:

the one I’m putting to you, because the statute uses the same term, citizens or subjects.

Craig J. Albert:

I do not think that there is a presumption in this Court that the use of the same language in Article Three and in title twenty-eight means that…

Well, tell me what…

Ruth Bader Ginsburg:

subject means within Article Three that it doesn’t mean within thirteen thirty-two and why a court should interpret it interpret them differently.

Craig J. Albert:

Because if you look to the Judiciary Act of seventeen eighty-nine, which was adopted nearly contemporaneously, Congress used the broader language, alien, rather than the narrower language, citizen or subject, and…

Ruth Bader Ginsburg:

That’s not i- in the Constitution says citizen or subject, doesn’t it?

Craig J. Albert:

That’s correct,

it does.

Craig J. Albert:

And…

Ruth Bader Ginsburg:

What…

does it…

Ruth Bader Ginsburg:

mean what does subject mean within the Constitution, within Article Three, as it reads?

Craig J. Albert:

It would be mere speculation on my part to suggest what it was that they meant, since this was one of the least debated provisions of the…

Constitution.

Ruth Bader Ginsburg:

you’re urging a certain statutory interpretation, and then you said, well, maybe it has a different meaning, the word subject, in the Constitution, so I’m asking you to tell me what could be those different meanings.

Craig J. Albert:

I think that it is entirely possible that in seventeen eighty-seven Congress i- the Convention intended to extend the grant of authority to the full measure of diversity jurisdiction over cases involving all foreigners, but the reason that I don’t think that they focused on the issue was because in seventeen eighty-seven there really were not these cases of i- there there was not were not a lot of cases probably no cases in which there were people who lacked subjectship yet nevertheless were foreigners.

Antonin Scalia:

What about Canadians? Unt- until Canada domesticated its constitution, I I suppose w- w- w- for for most of the nineteenth Century Canadians were not subjects of of the Crown?

Craig J. Albert:

think that the Canadians were subjects of the Crown by virtue of the fact that they were in a settler colony rather than in a plantation, a plantation colony, and the W- one of the difficulties of the British law of that entire era is that it never really had a unifor- i- it never had a uniform picture of who its persons were, and what the relationship was between the Crown and each one of the different types of colonies that it created and that was very, very difficult for Bri- that was very difficult for Britain, because because because Britain had different types of colonies which promoted different types of British interests, and therefore it created different types of Governments within them, and created different statuses with respect to immigration and migration to Europe for those people.

Ruth Bader Ginsburg:

So among the subjects, or well, the the entities that are under UK sovereignty, which of those are subject and which of them are not?

Craig J. Albert:

The ones that are certainly not subjects right now are those which are the British Overseas Territories, which include the British Virgin Islands, the Cayman Islands, Bermuda,

Which ones are? Which…

Ruth Bader Ginsburg:

ones are?

Craig J. Albert:

Pardon me?

Ruth Bader Ginsburg:

Which ones are?

Craig J. Albert:

The Isle of Man, the Channel Islands are British ci- are are British citizens,

I…

Ruth Bader Ginsburg:

didn’t ask citizen, I said, s- subject.

Craig J. Albert:

Oh, British…

sub- I…

Craig J. Albert:

sorry British British British subjects, and…

William H. Rehnquist:

How about the Falklands?

Craig J. Albert:

The Falklands the Falklands, i- th- those residents are not British citizen- citizens.

Anthony M. Kennedy:

How about Leicester Square?

Craig J. Albert:

Ha.

William H. Rehnquist:

Thank you, Mr. Albert.

Sarah L. Reid:

Mr. Chief Justice, and may it please this Court.

I think his answer…

Ruth Bader Ginsburg:

was that i- if they’re formed under Scotland, Wales, Northern Ireland, they’re okay, yes, but if they’re formed under BVI, they’re not.

Sarah L. Reid:

Right.

William H. Rehnquist:

Thank you, Ms. Reid.

The Marshal:

The honorable court is now adjourned until Monday next at ten o’clock.