Next Tuesday the Supreme Court will hear oral argument in Cisco Systems v. Doe I. Chinese practitioners of Falun Gong claim that Cisco aided and abetted their persecution by furnishing surveillance technology to the Chinese government. Much of the briefing turns on whether the Alien Tort Statute of 1789 (ATS) authorizes aiding-and-abetting liability. Yet the justices might begin by confronting a more fundamental—and long-overlooked—textual and historical limit that confines the statute’s reach far more narrowly than modern litigants suppose.

Does the ATS, which confers federal jurisdiction over any civil action “by an alien” for a “tort only” committed in violation of the law of nations, reach claims brought by nonresident foreigners—or is it limited to suits by foreign-born persons residing in the United States, as the First Congress intended when the House of Representatives deliberately substituted the much narrower “alien” for the Senate draft’s broader “foreigner”?

In 1789, a reasonable, informed person did not view the two words as inter-changeable. A “foreigner” described anyone born outside the United States who resided abroad. An “alien,” by contrast, denoted a foreign-born person who had taken up residence inside the United States. During House debates on the Judiciary Act, Rep. John Vining of Delaware spoke of ensuring impartial justice for “every subject or citizen of the world, whether foreigner or alien.” Rep. Michael Stone of Maryland drew the identical distinction when discussing alienage jurisdiction. Even Alexander Hamilton, in Federalist No. 22, contrasted “foreigners and aliens” to underscore separate categories of outsiders. The drafters knew precisely what they were doing.

As legal scholar M. Anderson Berry has meticulously shown, the House’s single-word substitution was no stylistic flourish. The Senate draft would have opened federal courts to any foreign-born plaintiff anywhere in the world. By choosing “alien,” the House narrowed the statute to a targeted remedy for resident aliens—those with actual ties to the United States—consistent with the First Congress’s careful calibration of federal jurisdiction in matters touching foreign relations. Elsewhere in the same Act, Congress tracked Article III’s broader language of “foreign States, Citizens or Subjects.” Only in the ATS did it deliberately choose the narrower term.

This original design fits comfortably within the broader constitutional scaffolding. The First Congress was acutely aware of the delicate balance between federal power and the States, and between judicial authority and foreign affairs. It had no intention of creating a roving commission for the federal judiciary to adjudicate all the world’s wrongs. Modern ATS jurisprudence has wandered far from that modest design, routinely entertaining suits by nonresident foreigners over conduct occurring entirely abroad. Cisco is only the latest—and most audacious—example.

In Sosa v. Alvarez-Machain the Supreme Court already cautioned against transforming the ATS into a do-gooding vehicle for vindicating international human rights. The Court has since tightened the statute’s extraterritorial reach in Kiobel and Jesner. Yet the resident/alien distinction supplies an even cleaner textual and historical ground for judicial restraint. Fidelity to the statute as written requires courts to respect the meaning of the words the First Congress enacted. If a broader remedy is wanted—one that would allow nonresident foreigners to litigate global torts in American courts—it is for Congress, not the judiciary, to provide one.

The Alien Tort Statute was never meant to be a universal jurisdiction statute in disguise. It was a narrow protection for those foreigners who had cast their lot with the new republic. Recovering that original understanding would restore a welcome measure of textual discipline to a statute long pressed into service for ends its drafters never imagined.