Foreign States are “Persons”: CC/Devas v. Antrix Amicus Brief
February 12, 2025
The Supreme Court may soon resolve an important constitutional question: whether foreign states are “persons” entitled to Fifth Amendment due process. For those who engage seriously with the text, history, and structure of the Constitution, there is a ready answer: yes, foreign states are “persons.”
The scope of the “process” to which foreign states are constitutionally “due” is a distinct question. Unfortunately, vague concerns about the answer to that second question lead many to the quick conclusion that foreign states cannot possibly be “persons” at all. But the Fifth Amendment “process” due to foreign states (and other defendants) may afford the nothing more than the protections that Congress and President have chosen to give them, requiring only that courts apply whatever law the political branches make. And concluding that foreign states are not “persons” – although foreign corporations are persons – creates its own policy and doctrinal problems: why, for example, would the PLO and the Daimler Corporation be entitled to due process rights from which Israel and Germany are categorically excluded?
Constitutional History and Text
The Framers of the Constitution, political thinkers, judges, and advocates in the late eighteenth century frequently referred to states as “persons.” As Ninth Circuit Judge Bumatay noted (citing my work) in his opinion in CC/Devas v. Antrix, Emmerich Vattel, an influential eighteenth-century political theorist and diplomat, wrote that “the body of the nation, the State, remains absolutely free” and referred to nation states as “moral persons” and as “free persons.” A nation, Vattel explains, is “considered by foreign nations as constituting only one whole, one single person.” I have submitted an amicus brief in CC/Devas detailing more examples in which states were described as “persons,” including by the pens of James Madison, Justice James Wilson, Chief Justice John Jay, and others. I have written an article providing additional support.
The fascinating and truly compelling point is that the concept of states as “persons” is deeply rooted in the Western historical tradition. Historian Annabel Brett, writing about territory and states, underscored that
many of the political theories offered by key figures of the Western tradition do not themselves systematically highlight space as a key element of human politics. Hobbes’s Leviathan represents, at least on the surface, a clear case of this. The state is an artificial man constructed by natural men through a covenant, that is, a mutual act of will. It is thus an interpersonal rather than a spatial phenomenon. And the state so constructed is itself, in turn, capable of acting at will: it is a person, though not a natural one. In short, the juridical metaphysics that makes the state, and makes the state an agent, seems to pull directly against an intrinsically spatial conception of it. The post-Hobbesian conception of the equality of states as moral persons became an anchor of the ‘law of nations’ not only as a legal but a broader political discourse.
Brett is obviously discussing intellectual history, not the interpretation of the U.S. Constitution. But that is part of what makes her observation so helpful. It underscores that the argument in favor of states as “persons” is not built upon snippets of language disassociated from broader social and political understandings. Instead, it is based on ideas that went to the heart of how people understood governments and sovereignty in the eighteenth century.
As another example, the influential 18th Century German political theorist Christian Wolff wrote that individuals have an obligation to perfect themselves. And because states are “free persons” what each “desires to be done must be left to its decision.” The rights and duties of states, in other words, were determined based on their status as persons. Wolff’s reasoning illustrates again that states would have been understood as “persons” for reasons that are deeply rooted in our political and intellectual history – not based on out-of-context dictionary definitions or computer-generated word searches.
Constitutional Structure
The foregoing analysis is so straightforward that there really is not a meaningful response to it. Those who disagree pivot quickly away from text and historical meaning to abstract arguments about constitutional structure: (1) states are “outside the structure of the Union”; and (2) domestic states within the United States do not have due process rights, so foreign states should not enjoy due process protections, either.
As to the first argument, foreign states are not “outside” the constitutional structure of the United States, as the Constitution’s own text itself make clear. Article III extends the “judicial power of the United States” to controversies “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” To a large extent, foreign states (like other litigants) benefit from their inclusion in Article III only if Congress decides to create lower federal courts and vest those courts with subject matter jurisdiction in cases involving them. But foreign states are nonetheless within the constitutional “structure” of the United States, just like foreign citizens to whom due process protections unquestionably apply. Moreover, the original jurisdiction of the Supreme Court (which does not depend on Congress for its exercise) extends to cases involving states, including foreign states, an argument defended in more detail here. Finally, placing foreign states within Article III’s grant of diversity jurisdiction was not an accident or drafting glitch – the famers instead hoped that federal courts would minimize conflict that might otherwise arise in cases involving foreign states.
The second argument – foreign states cannot be entitled to due process because domestic states are not – is based on dicta in Republic of Argentina v. Weltover:
Assuming, without deciding, that a foreign state is a “person” for purposes of the Due Process Clause, cf. South Carolina v. Katzenbach, 383 U.S. 301, 323–324, 86 S.Ct. 803, 815–816, 15 L.Ed.2d 769 (1966) (States of the Union are not “persons” for purposes of the Due Process Clause), we find that Argentina possessed “minimum contacts” that would satisfy the constitutional test.
Before Weltover, lower courts routinely held that foreign states were entitled to due process protections. After Weltover, they have held that foreign states do not.
The Court’s offhand citation to Katzenbach is not very illuminating. That case rejected South Carolina’s challenge to the Voting Rights Act of 1956, reasoning – with no textual or historical support – that that the word “person” in the Due Process Clause of the Fifth Amendment does not include the “States of the Union.” The Court did not consider originalist sources, made no mention at all of foreign states, and also based its conclusion on South Carolina’s lack of standing to object on behalf of its citizens. The Court did say that “the principle of the separation of powers [served] only as protections for individual persons and private groups, those who are peculiarly vulnerable to nonjudicial determinations of guilt.” The Court has, however, assumed in subsequent litigation that foreign sovereigns do benefit from separation of powers, obviating this reasoning when it comes to foreign states. More fundamentally, Katzenbach was not a case about the procedural protections that due process affords any litigants in federal courts. The case can hardly be read to say that a federal court could deprive a domestic state of its property by disregarding applicable procedural rules governing notice. And holding in Devas that foreign states are “persons” entitled to procedural due process does not mean that foreign states could successfully challenge the Voting Rights Act.
Conclusion
If the Court reaches the constitutional issue in CC/Devas, it will have to consider foreign policy and national security concerns, which are what really animate the argument that foreign states do not have due process rights. The question is whether the Court will put aside the clear and obvious answer out of a fear of negative policy consequences.
Doing so in this case would be a shame. Due process is, after all, a flexible doctrine that affords great latitude to the U.S. government, especially in foreign policy matters. And in the personal jurisdiction context, Fifth Amendment due process may require no more than the protections that Congress elects to provide defendants. Finally, holding that foreign states lack due process rights while foreign corporations enjoy such rights, has policy drawbacks. In cases like Devas involving foreign state-owned corporations, it forces courts to draw constitutional distinctions between the two. There is no doctrinally coherent way to make that distinction because the distinction itself has no basis in the Constitution.
The word “person” in the Fifth Amendment of the Constitution would have been understood in 1791 to apply to foreign states, corporations, and foreign state-owned corporations alike. Courts assumed or held as much until Weltover’s unfortunate, unsubstantiated dicta in 1992. The Supreme Court now has the opportunity to consider the issue for the first time. The text, history, structure and modern policy all point in one direction: foreign states are person entitled to Fifth Amendment due process.