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10/08/2020

Stephen Sachs on Originalism and Personal Jurisdiction
Michael Ramsey

At Volokh Conspiracy, Stephen Sachs: Originalism and Personal Jurisdiction.  After noting Larry Solum's comments on Ford Motor Company v. Montana Eighth Judicial District Court

I want to note that there's another originalist theory out there: namely, that Pennoyer was right, and that due process enforces the rules of personal jurisdiction without defining them. Per various other papers, the original requirement of the Due Process Clauses is something like this: whether in 1791, 1868, or today, with only minor exceptions, the government is generally forbidden to invade certain vested private rights without the judgment of a court of competent jurisdiction. Which rights are private and vested, and which exceptions apply, are questions to which a choice of date might matter; but demanding money from the Ford Motor Company is pretty much the paradigm case. And as Pennoyer said, "proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law."

So when does a court have jurisdiction? Per Pennoyer, the actual rules of jurisdiction were to be found elsewhere, in general and international law (what Justice Field called "public law") and not in the Fifth and Fourteenth Amendments. That makes sense, because American courts had already been limiting state personal jurisdiction, notwithstanding state long-arm statutes, for roughly a century before the Fourteenth Amendment—and without grounding the doctrine in due process. (For a full account, check out this truly fascinating Texas Law Review article; for more on how the early Republic treated state and federal courts, see this forthcoming paper.)