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07/29/2019

Ingrid Wuerth: The Due Process and Other Constitutional Rights of Foreign Nations
Michael Ramsey

Ingrid B. Wuerth (Vanderbilt University - Law School) has posted The Due Process and other Constitutional Rights of Foreign Nations (Fordham Law Review, forthcoming 2019) (57 pages) on SSRN.  Here is the abstract:

The rights of foreign states under the U.S. Constitution are becoming more important because the actions of foreign states and foreign state-owned enterprises are expanding in scope and the legislative protections to which they are entitled are contracting. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals, but to deny categorically such protections to foreign states.

A careful analysis of Article III and of the Fifth Amendment shows that the conventional wisdom and lower court cases are wrong. Foreign states are protected by Article III’s extension of judicial power to foreign-state diversity cases, the purpose of which was to protect foreign states from unfair proceedings and to prevent international conflict. The Article III “judicial power” over “cases” also presupposes both personal jurisdiction (over any kind of defendant) and other process-based limitations. The Fifth Amendment overlaps with Article III in important ways. It also protects foreign states. They are “persons” due the same constitutional “process” to which other defendants are entitled. Modern scholars have struggled to see the connection between due process and personal jurisdiction. The cases involving the immunity of foreign states makes the connection clear for all defendants. “Process” only reached defendants within sovereign power, or jurisdiction, of the issuing court. 

Examining the Constitution from the perspective of foreign states thus reveals the document in a new light, illuminating its core features in ways that advance our historical and theoretical understanding of the Constitution, with significant implications for several additional areas of modern doctrine. The analysis of separation of powers and due process also lays the groundwork for determining whether foreign states have additional constitutional rights.

(Via Lawfare, where the author gives a summary of the paper).

I read an earlier draft, and it's an outstanding and thought-provoking contribution.  Despite the apparently narrow focus suggested by the title, its implications call for a broad rethinking of the original understanding of judicial jurisdiction.  (And as a further aside, many of the constitutional aspects of civil procedure are ripe for substantial originalist rethinking -- this is a great start.)