A Preliminary Memorandum for Counsel Concerning the Proper Sequence of Constitutional Analysis in Case No. 25-365
“Every sound legal analysis begins by identifying the proper question before attempting to answer it.”
Counsel,
Because the period for seeking further review under Rule 44 is rapidly approaching, I respectfully submit this brief preliminary memorandum before forwarding my completed constitutional memorandum.
Its purpose is not to persuade you that my constitutional conclusions are necessarily correct. Rather, it asks whether the constitutional analysis underlying Case No. 25-365 may have begun at the wrong place.
Every attorney understands that before an argument is constructed, the case itself must first be examined. Before a physician prescribes a remedy, the patient must first be diagnosed. Before a surveyor determines property rights, the deed must first be examined. Before a navigator begins a journey, true north must first be established.
Sequence matters.
This paper respectfully proposes that the same principle applies to the constitutional relationship between the Civil Rights Act of 1866 and the Fourteenth Amendment.
Throughout modern constitutional discussion, considerable attention has been given to the phrase “subject to the jurisdiction thereof” contained in the Citizenship Clause of the Fourteenth Amendment. That phrase is unquestionably important. The question presented here, however, is whether constitutional analysis should begin there, or whether another question necessarily comes first.
Who were the “all persons born in the United States” identified in the Civil Rights Act of 1866?
The author respectfully submits that before one can determine whether a person is “subject to the jurisdiction thereof,” one should first determine the historical identity of the population Congress was addressing when it enacted the Civil Rights Act of 1866. Whether that proposition ultimately proves correct is a matter for professional legal judgment. The purpose of this paper is simply to suggest that the identity question deserves examination before broader interpretive questions are addressed.
The House Before the Lock
Another illustration may help explain the sequence proposed in this paper.
When a house is constructed, the builder first lays the foundation, erects the walls, completes the rooms, and prepares the dwelling for its intended purpose. Only after the house has been built is a lock placed upon its front door.
The lock does not create the house.
It does not define its rooms.
It does not determine the purpose for which the house was constructed.
It protects what already exists.
Nor does the lock itself identify the person lawfully entitled to enter. That question is answered by the deed and the key. The deed identifies the lawful owner. The key permits lawful entry. Only then does the discussion turn to what may be found inside the house.
The author respectfully proposes that Reconstruction should be examined in the same sequence.
The Civil Rights Act of 1866 came first. It established the statutory framework. It identified the legal rights Congress sought to secure, provided mechanisms for enforcement, and addressed the legal conditions confronting the Nation in the aftermath of emancipation.
The Fourteenth Amendment followed.
Whatever its ultimate constitutional function may be determined to be, it came after the Act and should therefore be examined in relation to the legislative structure that already existed.
President Andrew Johnson’s veto messages become important at precisely this point. Although Congress rejected Johnson’s constitutional conclusions by overriding his veto, his objections constitute contemporaneous evidence describing the legislation before him and the population whose legal condition he believed Congress was addressing. Whether that evidence ultimately supports or undermines the author’s interpretation is for counsel to determine after examining the original historical record.
The question, therefore, is one of sequence.
Should constitutional analysis begin with the lock?
Or should it first examine the house upon which the lock was placed?
The author respectfully submits that before interpreting the phrase “subject to the jurisdiction thereof,” counsel should first determine the historical identity of the “all persons born in the United States” described in the Civil Rights Act of 1866. Only then can the constitutional relationship between the Act and the Fourteenth Amendment be evaluated according to their original chronology.
Why This Matters
This paper is not intended to resolve the constitutional questions presented in Case No. 25-365.
Its purpose is more modest.
It asks whether the first constitutional question has been properly identified.
If the analysis begins at the correct point, then the existing constitutional framework is strengthened by renewed examination.
If the analysis has begun in the middle of the inquiry rather than at its beginning, then every subsequent step deserves careful professional review.
Accordingly, I respectfully ask only that this methodological question receive your independent consideration before the Rule 44 period expires.
Should you conclude that this proposed sequence warrants further examination, the accompanying constitutional memorandum develops the historical record, the Civil Rights Act of 1866, President Andrew Johnson’s veto messages, the Fourteenth Amendment, Reconstruction jurisprudence, Rule 44, and the President’s Article II responsibilities in substantially greater detail.
I submit this paper with profound respect for the Supreme Court of the United States, the Presidency, the Congress, and the legal profession, and with the sincere hope that the original Reconstruction record may receive careful examination according to law.
Respectfully submitted,
Ted Hayes
Citizen Advocate
Independent Constitutional Researcher
July 14th, 2026 (ironically)