Unpacking the Originalist Argument for Maximalist Personal Jurisdiction

The Supreme Court’s recent decision in Fuld v. PLO declined to address what it called the “maximalist” theory of personal jurisdiction put forward by the petitioners, several amici (including the House of Representatives), and some vocal lower court judges: That as a matter of original understanding, the Due Process Clause of the Fifth Amendment places no limits on the power of Congress to assert personal jurisdiction over foreign defendants. If Congress can enact a law, the theory goes, it can declare that the federal courts have adjudicative power to apply that law to anyone for their conduct anywhere. In a separate opinion in Fuld, Justices Thomas and Gorsuch endorsed this theory, and the same originalist arguments are behind calls to rework personal jurisdiction analysis under the Fourteenth Amendment as well (a possibility that Justice Thomas alluded to in a footnote).

The drumbeat of support for this originalist theory of unbounded personal jurisdiction is concerning because the logic and history on which the theory is built is not nearly as certain as judges and advocates have claimed. At the very least, the theory’s proponents have not carried their burden of proof to justify upending decades of circuit court practice and eradicating an important judicial check on congressional power. The Solicitor General, for example, declined to endorse the maximalist theory because it is “not easily confirmed as a historical matter,” a warning that Chief Justice Roberts quoted in the Fuld decision.

But the judicial uptake of the theory (albeit not yet in any majority opinion) is part of a broader pattern: the transformation of a single scholarly article, or a handful of them, into a simplified mantra that is repeated in dissenting opinions until it becomes a seemingly unassailable truth. Academic discourse around novel theories is cut short, and scholars’ efforts to nuance and qualify their own theories are lost as citations to their work becomes pro forma. At that point, adherents to the new theory may demand a showing of historical certainty for retaining the status quo, when the burden of proof should be the other way around.

In a series of posts this summer, I will unpack the originalist theory of unbounded personal jurisdiction to get at the logical core of the argument and to raise questions about the scarcity of supporting evidence, the limited usefulness of the evidence that has been identified, and alternative inferences that can be drawn from it. I have no historical “smoking gun” in favor of existing personal jurisdiction doctrine. But neither do the proponents of unbounded personal jurisdiction for their theory (and no, Picquet v. Swan is not it). The goal is not to foreclose definitively the originalist theory of maximalist personal jurisdiction, but to demonstrate that it has not yet met its burden of proof for adoption.

This first post clears away some underbrush by acknowledging the uncontroversial link between the scope of Article I and Article III authority as a matter of prescriptive power and federal subject-matter jurisdiction. But that link does not answer the central question: whether there is a separate limit on the federal courts’ adjudicative power to assert authority over particular defendants. The post thus sets to one side the sources invoked by proponents of unbounded personal jurisdiction that speak only to the link between prescriptive power and subject-matter jurisdiction. It then focuses in on the key move that the originalist theory makes: that the Due Process Clause does not provide a separate limit on Article III power because limits on adjudicative power (in the personal jurisdiction sense) were originally understood as a matter of international law, and international law can be overridden by Congress.

The post concludes by identifying the syllogistic logic of that move and by roadmapping how subsequent posts will draw into question the evidence used to support both the syllogism’s major and minor premise.

Distinguishing Different Types of Jurisdiction and Power

Proponents of unbounded personal jurisdiction sometimes conflate different types of governmental power. It is helpful, then, to start by distinguishing clearly among them. Prescriptive power is the power to make law to govern conduct (it is, at least for our purposes, synonymous with the concept of “legislative power”). The federal government’s prescriptive power is bounded by Article I of the Constitution. Adjudicative power, by contrast, is the power to issue binding court judgments regarding particular parties or property—what we refer to today in the United States as subject-matter jurisdiction and personal jurisdiction.

As a matter of prescriptive power, Congress can adopt laws that apply extraterritorially as long as it acts within the scope of its Article I powers.  It can also enact laws that violate international law, although rules of statutory interpretation require Congress to be clear about its intention to do so. (That is the Charming Betsy canon.) Because Congress has the sole power to “ordain and establish” the lower federal courts, it is Congress’s prerogative to assign subject-matter jurisdiction to the lower federal courts, including jurisdiction to hear any case that touches on the laws it adopts. Further, the lower federal courts can only exercise personal jurisdiction that has been affirmatively authorized by Congress (for example, through Federal Rule of Civil Procedure 4(k)).

All of this links the scope of the federal courts’ adjudicative authority closely to the authority of Congress. The maximalist argument for personal jurisdiction goes a step further, however, and insists that Congress’s power to prescribe and to allocate subject matter jurisdiction is coextensive with the federal courts’ power to exercise personal jurisdiction. If Congress can adopt a law, in other words, it can tell the courts to apply that law to anyone it wants.

Much of the support for this claim, however, is based on materials that only support the initial propositions listed above: that Congress has broad prescriptive power and that it can grant subject-matter jurisdiction in regards to any exercise of its prescriptive power under Article I. The following sources do not support the further assertion that there is no separate limit on Congress’s authority to grant of personal jurisdiction.

Federalist No. 80

Among the most popular quotations invoked by judges and amici in favor of unbounded personal jurisdiction is an assertion by Alexander Hamilton in Federalist No. 80 that, “[i]f there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number.”

The “judicial power” to which Hamilton referred is what we would today call subject-matter jurisdiction: what sorts of claims the courts could hear, not whom the courts could bind. Federalist No. 80 walks through the different heads of federal subject-matter jurisdiction under Article III and explains why each is justified. It does seem axiomatic that if Congress can adopt a law, it should be able to empower the federal courts to hear claims arising from that law. As Hamilton explained, the federal courts must be able to hear disputes involving federal law in order to achieve uniform interpretation and applications of such laws.

But that is a distinct question from whom the courts might apply that law to. Federalist No. 80 does not discuss that question. (Indeed, the Bill of Rights with its Due Process Clause hadn’t yet been written.) The same is true for all the other similar quotations drawn from the ratification debates. “Coextensive” in this context referred to the permissible scope of “federal question” jurisdiction, not an implied rejection of any external limit on judicial authority over particular parties.

Cases Discussing Extraterritoriality

There is also a lot of citation in the Fuld briefing (and in Justice Thomas’s Fuld concurrence) to twentieth-century cases discussing the presumption against extraterritoriality or the reach of extraterritorial laws. Yes, Congress can pass laws that apply to conduct outside the United States. That is, again, a separate question from whom the laws can be applied to. Judicial decisions applying extraterritorial laws still assume that other limits to court authority may apply, including limits on personal jurisdiction. In fact, judges have taken solace in these other limits as providing a critical check to the geographic reach of otherwise global laws.

Cases like EEOC v. Aramco (1991), Hartford Fire Insurance Co. v. California (1993), American Banana Co. v. United Fruit Co. (1909), United States v. Bowman (1922), Morrison v. National Australia Bank (2010), Kiobel v. Royal Dutch Petroleum (2013), and RJR Nabisco v. European Community (2016) are thus irrelevant to the debate over personal jurisdiction because they address only the reach of Congress’s power to prescribe. Those cases do not help answer whether the Fifth Amendment—or any other source of law—constrains to whom that law can be applied in particular cases.

The Scope of “Arising Under” Jurisdiction

Some Fuld amici also cite to Cohens v. Virginia (1821) and Osborn v. Bank of the United States (1824). Such cases also address the permissible scope of the federal courts’ subject-matter jurisdiction and what constitutes cases “arising under” federal law. That the constitutionally permissible scope of subject-matter jurisdiction for the lower federal courts is in fact quite broad again does not rule out other limits on the courts’ authority to issue binding judgments.

The Real Question

In sum, that Congress’s legislative power is coextensive with the permissible “federal question” subject-matter jurisdiction of the federal courts does not answer whether the Founders understood there to be extrinsic limits on the courts’ adjudicative authority, whether via the Due Process Clause or otherwise. Originalist scholars have come to different conclusions as to what “due process” meant in 1792 (as Justice Thomas’s Fuld concurrence acknowledged). Proponents of unbounded personal jurisdiction draw primarily on the work of Professor Stephen Sachs, who argues that limits on personal jurisdiction were traditionally derived from international law, not “due process” (or any other constitutional provision). And as a matter of international law, the argument continues, limits on adjudicative power could be overridden by clear congressional statutes. This is the true crux of the theory of unbounded personal jurisdiction.

Phrased as a syllogism, the argument is that international law can be overridden by Congress [major premise]; limits on personal jurisdiction were understood as a matter of international law [minor premise]; therefore, limits on personal jurisdiction can be overridden by Congress [conclusion]. My next post will question the accuracy of the major premise, and it will explore the different types of evidence used to support the minor premise. Subsequent posts will address in greater depth two sources of evidence most often invoked by proponents of unbounded personal jurisdiction: early admiralty cases and Picquet v. Swan (C.C. D. Mass. 1824)