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08/24/2020

Robert Pushaw: Do Foreign Nations Have Constitutional Rights?
Michael Ramsey

Robert J. Pushaw (Pepperdine University - Rick J. Caruso School of Law) has posted Do Foreign Nations Have Constitutional Rights? (Fordham Law Review Online, Vol. 88, p. 142) (14 pages) on SSRN. Here is the abstract:

Ingrid Wuerth challenges the conventional wisdom that the Constitution does not grant any procedural rights, such as notice and personal jurisdiction, to foreign countries. Her foundational premise is that the Constitution’s Framers, Ratifiers, and early interpreters did not precisely use terminology such as “judicial power,” “cases,” “controversies,” “due process,” “subject matter jurisdiction,” and “personal jurisdiction.” Professor Wuerth follows suit by collapsing these terms into a general analytical framework, which is then applied specifically to litigation involving foreign sovereigns. I submit, however, that these words (and the concepts they convey) were— and still are—distinct, albeit related. In particular, clarity would be promoted by treating Article III—which primarily concerns subject matter jurisdiction over three categories of “Cases” and six types of “Controversies”— separately from Due Process issues such as personal jurisdiction. Moreover, Article III’s text and history indicate that its drafters included “Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” to ensure that such disputes would be resolved impartially by federal judges who, unlike their state counterparts, enjoyed tenure and salary guarantees that insulated them from political pressure. By contrast, Professor Wuerth presents no direct evidence that the Framers or Ratifiers understood this Alienage Clause as guaranteeing procedural rights to foreign nations. Therefore, although I agree with her thesis that foreign governments should receive the same constitutional procedural protections as their citizens and enterprises, the main font of those rights should be the Due Process Clause rather than Article III. I will develop the foregoing ideas primarily by critiquing Professor Wuerth’s historical analysis of those two constitutional provisions. I will then consider some modern implications of her proposal.