Unpacking the Originalist Argument for Maximalist Personal Jurisdiction, Part II: The Logic of Syllogisms

This is the second post in a series questioning the originalist argument for maximalist personal jurisdiction, as embraced by Justices Thomas and Gorsuch in their Fuld v. PLO concurrence. Pivotal to the originalist theory of maximalist personal jurisdiction is the argument that limits on adjudicative power were initially understood not as due process limits (or as any other limit derived from the Constitution), but as a matter of international law that Congress could override.

To evaluate the logic and evidence in support of this argument, it is helpful to rephrase it as a syllogism:

• International law can be overridden by Congress [major premise]
• Limits on personal jurisdiction were a matter of international law, not constitutional law [minor premise]
• Therefore, limits on personal jurisdiction can be overridden by Congress [conclusion]

This post questions the accuracy of the major premise and argues that the minor premise has not been adequately established.

The Major Premise

Proponents of unbounded personal jurisdiction are correct that Congress can pass laws that violate international law. As the Supreme Court explained in Murray v. The Charming Betsy (1804), the courts should interpret federal laws in accordance with international law if at all possible; thus, Congress must speak clearly if it intends to override international law.

As a historical matter, however, not all international law was understood to be defeasible. As Bill Dodge has explained, Vattel distinguished among three different types of unwritten international law: necessary, voluntary, and customary. The customary law of nations was based on state practice, and states could withdraw from that custom at will (unlike what we call “customary international law” today). The necessary and the voluntary law of nations were based on natural law and were thus immutable. “Necessary” law could nonetheless be displaced domestically at the will of the sovereign, while “voluntary” law—despite its name—created external obligations that were nondefeasible. Indeed, Vattel was stingier in his definition of nondefeasible international law than other early treatise writers, who were also influential on the Founding generation. As Bill explains in his chapter, early U.S. cases reflect this distinction between the customary law of nations (defeasible) and the voluntary law of nations (nondefeasible).

To be sure, these labels and their application by early jurists and treatise writers were somewhat malleable. But the proponents of unbounded personal jurisdiction tend to treat “international law” as a monolith, without engaging with the more varied meaning it had in the eighteenth and early nineteenth centuries. There is not an automatic line, in other words, between references to international law in early personal jurisdiction cases and the Charming Betsy idea that Congress can override such law if it so chooses.

If the major premise is understood to be “All international law can be overridden by Congress,” it is arguably inaccurate as an original matter.  If it is understood instead to be “Some international law can be overridden by Congress,” then the minor premise must be rephrased as “All limits on personal jurisdiction were a matter of [the subset of international law referred to in the major premise].” (This phrasing is necessary to avoid the fallacy of four terms and the fallacy of the undistributed middle, as described by Judge Ruggero Aldisert in his classic Logic for Lawyers.)

The Minor Premise

If the minor premise is more precisely stated as “All limits on personal jurisdiction were a matter of [the subset of international law referred to in the major premise],” several evidentiary challenges arise. First, to establish the accuracy of the minor premise, one has to rule out any other potential limits on personal jurisdiction. That is, it is not enough to show that judges thought international law imposed limits on personal jurisdiction; one must establish that no other source of law imposed such limits. Second, it is not enough to show that international law defined all limits on personal jurisdiction; that international law must also be of the same sub-category of international law as identified in the major premise.

The first challenge is a doozy. As Professor Stephen Sachs put it when initially setting out this theory, “Showing that Founding-era due process didn’t limit federal personal jurisdiction is an exercise in proving a negative.” One way to prove a negative is to infer the absence of something by thoroughly canvassing where it should appear. Sachs thus emphasizes the lack of caselaw explicitly linking personal jurisdiction to “due process” until the Civil War era, a conclusion that is often cited by jurists who embrace his theory of unlimited personal jurisdiction.

There is still an inferential step between the lack of explicit reference to due process, however, and the conclusion that early jurists believed that nothing constrained Congress’s power to authorize personal jurisdictional. Other inferences might be drawn instead.

For example, there would be no reason to cite due process if there were no test cases that would require doing so. As Sachs acknowledges, strict venue rules already limited where cases could be brought in the federal system, typically where the defendant was domiciled or could be personally served—uncontroversial bases for personal jurisdiction, both then and now. Further, before the rise of railroads and corporations, disputes were more often localized, reducing the need to push traditional limits on personal jurisdiction. Congress also did not push those limits. I am not aware of any early federal statute authorizing personal jurisdiction on a basis that would not pass constitutional muster today.

In addition, to the extent that early jurists thought limits on adjudicative power were part of what Vattel would call the “voluntary” law of nations, they may not have felt the need to explicitly connect those rules of natural justice to “due process” in the Fifth Amendment until the positivist turn in Anglo-American jurisprudence in the later nineteenth century. As natural justice fell out of favor, notions of fundamental fairness came to be tied to the Due Process Clauses instead. To see this transition from another angle, the reason we today can say that Congress can legislate in violation of any international law is because the immutable natural law component of the law of nations has migrated to the Due Process Clause in the positivist era.

In short, there is a throughline between natural justice, fundamental fairness, and due process; the lack of a particular label in the early 1800s does not mean we haven’t been talking about the same thing all along.

The Conclusion as Prosyllogism

The major and minor premise of the syllogism at the heart of the theory of unbounded personal jurisdiction are thus far from ironclad. To bolster the conclusion, then, proponents of the theory have pointed to two sets of early cases as more direct evidence of Congress’s acknowledged power to override international law limits on personal jurisdiction: early admiralty cases adjudicating disputes between foreigners that arose outside of the United States, and a trio of early cases that appear to acknowledge congressional power to authorize broad personal jurisdiction (Ex Parte Graham (C.C.E.D. Pa. (1818), Picquet v. Swan (C.C.D. Mass. 1828), and Toland v. Sprague (1838)).

My next two posts will delve into these two sets of cases in turn. But to first round out this post on syllogistic reasoning, consider that the conclusion of the syllogism explored here can also be recast as the major premise of the syllogism on which Justices Thomas and Gorsuch would have based the decision in Fuld:

• Congressional statutes authorizing personal jurisdiction are not constrained by the Constitution [major premise]
• The Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) is a congressional statute authorizing personal jurisdiction [minor premise]
• Therefore, the PSJVTA’s personal jurisdiction provisions are not constrained by the Constitution [conclusion]

(A conclusion of one syllogism that becomes the major premise of another is called a “prosyllogism.”)

Understanding that the conclusion of the syllogism at the heart of the theory of unbounded personal jurisdiction serves as the major premise for syllogisms supporting the holding of particular cases helps explain the work that the admiralty cases and the Picquet trio are doing. To the extent that the core syllogism is not ironclad for the reasons explored in this post, the admiralty cases and the Picquet trio ostensibly provide inferential support for the prosyllogism. As I hope my next two posts will demonstrate, these two sets of cases do not provide adequate inferential support for such a sweeping assertion. Three legs (syllogistic logic, admiralty, and the Picquet trio) can help make a stool, but only if each is independently a leg. The prosyllogism on which the originalist theory of unbounded personal jurisdiction turns is not a stool on which I would dare sit.