Originalism and Personal Jurisdiction

The original rules might not be found in the text.


Larry Solum has an interesting post on Ford Motor Company v. Montana Eighth Judicial District Court, to be argued Wednesday morning. He articulates two originalist theories of due process and personal jurisdiction:

Justice Black's Theory: The phrase "Due Process of Law" means the process that is due under the positive law of the state at the time the rights violation occurs. If Justice Black is correct, then Montana may assert personal jurisdiction over Ford if it has enacted a long arm statute that authorizes such jurisdiction.

Justice Scalia's Theory: The phrase "Due Process of Law" means the process that was due as of 1868, the date of ratification of the Fourteenth Amendment. Justice Scalia believed that this means that Pennoyer v. Neff provides the relevant legal standard. Under Pennoyer, Ford cannot be served outside the territory of Montana, and hence personal jurisdiction would be improper. (Actually, I'm not sure how Ford was served, but that must be in the record somewhere.)

On Twitter, Solum raises a third theory, namely that "due process of law" just meant "service of process," presumably within the state.

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.)

How to apply these rules to the Ford Motor case is quite complicated, and I hope to say more after reading the oral-argument transcript tomorrow. But we ought to remember that the original rules of personal jurisdiction aren't always found in the original meaning of the text.


Update: New post (finally!) available here.

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  1. With our enormous and highly mobile economy, I’m absolutely stunned this issue hasn’t already been decided.

    Ford Motor Co. has its headquarters in Michigan and is incorporated in Delaware. Ford assembled the vehicle in Kentucky and first sold it to a dealership in Washington State. The dealership then sold it to an Oregon resident, who later sold the vehicle to a purchaser who brought it to Montana.

    The district court denied Ford’s motion to dismiss, finding a “connection between the forum and the specific claims at issue.” The Montana Supreme Court affirmed, reasoning that by advertising and selling parts within the state of Montana, Ford had availed itself of the privilege of doing business in that state and was therefore subject to specific jurisdiction there.

    At what point (if ever) is a company’s liability for its products removed and (as this case is specifically about), how does a state establish jurisdiction?

    1. It is also wild to me that the Court has yet to address a PJ case based on virtual contacts. The lower courts aren’t consistent and some still use the really outdated Zippo test.

      1. Whoops weird double-ish post.

    2. It is also wild to me that they haven’t touched a PJ case that involved minimum contacts through the internet yet.

    3. I think the reason the court hasn’t addressed this issue is similar to the reason it’s never decided whether its within a state’s police powers to prohibit theft – the answer ought to be too obvious to warrant review. Until recently, its always been assumed that a plaintiff can sue in the state in which he is injured if the defendant has any sort of ongoing bon fide contacts with that state. For instance, in the recent BMS decision, the court held that people injured by a drug outside of CA could not sue the manufacturer in CA. But it assumed that they could sue in their own states, and that people who took the drug in CA could maintain their suits. Similarly, it was taken for granted that a plaintiff injured in OK could sue Volkswagen in OK (though not an out of state distributor), because Volkswagen sold cars in OK all the time, even if not the one at issue in that case.

      If Ford’s position prevails, I think it could have really ruinous consequences. For one, it would make joinder of other defendants almost impossible. If you’re injured because your Ford seatbelt malfunctioned, and also because another driver was negligent, you can always sue Ford in MI, but MI won’t have jurisdiction over the other driver. Also, there will be a whole host of problems with suing in MI when all of the witnesses and evidence are in another state.

      There’s also the potential that a company could incorporate, have its principal place of business, and do its manufacturing in a single state. Depending on that state’s venue rules, a major national company could have all of its product liability cases across the country heard in a single county, and maybe even by a single judge. Seems like an invitation for abuse.

  2. Pennoyer was the first thing we learned about in law school, and to us (at that point) non-lawyers it seemed stupid, artificial, illogical and unfair. That’s because it was stupid, artificial, illogical and unfair.

    1. How do lawyers feel about it though?

      1. Lawyers, at least in unguarded moments, usually admit that they think the law on a certain issue is simply wrong, even though it benefits their client. But Pennoyer has been discredited for so long, both through the development of the law (beginning with International Shoe) and as a matter of logic and justice, that I don’t think many of my fellow lawyers would defend it.

        1. As a side note, I don’t know why Civ Pro (or for that matter most law school courses) go through so much history, analyzing in detail cases or statutes that have been superseded or overruled. It would be a much better use of time to teach the law “as it is”. One could throw in a few remarks about what the law used to be, but no more than that. Keep it to 100 words or less.

          1. I suppose … As it has been 51 years since I was in L1 the exact holding and reasoning of both Pennoyer and International Shoe are lost in the mists of time. Yet seeing the legal reasoning adopted at one time and then later when it was decided to modify or abandon an earlier holding are supposed to enhance our reasoning ability to persuade a court to likewise revise or abandon a bad rule.
            I’m of course not such a novice to believe that many lawyers strive for this standard, but it’s still good to display it as a goal.

          2. Because the old law is never truly gone. The doctrine develops but vestiges remain.

            Consider Federal Rule of Civil Procedure 2. “There is one form of action–the civil action.” There is a sense in which that is true, but your case is going to proceed quite differently depending on whether it would have been considered law or equity in a prior era.

            1. Does that mean the professor has to go through the entire history of law and equity? No. Just a few words about it will suffice.

              My point is: Civ Pro is not really Civ Pro. It’s largely a course in Civ Pro history. Con Law is not really Con Law. It’s largely a course in Con Law history. If they want to teach history, ok. But at least call the course that, and don’t make it a required course.

    2. Can you elaborate? I don’t remember anyone having a visceral reaction to it in my class, nor do I have one now, particularly.

      1. Guy punches you in the nose, then leaves the state. Can’t sue him.

        Someone swindles you out of $100,000, then leaves the state. Can’t sue him.

        Guy contracts to build a house for you, takes the advance $, then leaves the state. Can’t sue him.

        Beginning law students are in a scary situation, extremely deferential, having to listen to professors who (most of them) like to hear themselves talk, and tend to swallow what they’re told without question. But Pennoyer struck us as odd, at least when we were chatting about it around the table afterwards. It was a relief to find out that it was no longer good law, but because Civ Pro isn’t really a course in useful Civ Pro (it’s actually a course in the history of Civ Pro), we didn’t find that out until the third week.

  3. Excellent post. These are the types of articles that VC used to be known for (h/t Kerr, Baude, Volokh, Somin, sometimes Adler).

    Personal jurisdiction (especially in states that have long-arm statutes to the extent of Constitutional limits, which is most of them IIRC) is an issue that has never sat right; not to mention, the occasional “Scalia trap” (getting someone in the state for a brief second to personally serve them).

    As a constitutional minimalist, I think there’s something to be said for your proposal regarding enforcement without defining. In a many ways, that kicks the can down the road, but that is often the way the law (especially w/r/t the Constitution) should work.

    I’ll have to read the papers now!

  4. “Under Pennoyer, Ford cannot be served outside the territory of Montana, and hence personal jurisdiction would be improper.”

    I’m not sure this follows. If Montana is like most other states, it likely requires corporations to designate an in-state agent for service of process as a condition for doing business within the state. The plaintiffs could then meet Pennoyer’s territorial presence requirement by simply serving Ford’s agent in Bozeman or wherever.

    The only real “originalism” question then would be whether such an agent designation law violates the 14th Amendment. I don’t see how it would, but I’d be interested to hear differing perspectives.

    1. I was wondering about the “foreign corporation” requirements. According to the Montana Secretary of State Ford Motor Company is registered as a foreign corporation and has an agent in Missoula.

  5. True story: I attended a student lunch with Prof. Solum during my first year of law school. Most of the discussion concerned Justices Brennan and Scalia’s debate in Burnham v. Superior Court regaring this very issue.

  6. Not being a lawyer, I don’t have much to say about personal jurisdiction, but the Scalia definition of due process strikes me as insane:

    The phrase “Due Process of Law” means the process that was due as of 1868, the date of ratification of the Fourteenth Amendment.

    Are we truly not supposed to improve? Is the state permitted to ignore things that are learned over time?

    1. The Fourteenth Amendment is a really good example of some of the major conceptual issues with originalism. “Due process of law” is the same exact phrase in Fifth Amendment and Fourteenth Amendment. But the Fifth Amendment was ratified in 1791 and the Fourteenth in 1868. So are there two different meanings for the exact same phrase? And one meaning applies to federal actions and the other to State ones?

      Conservatives like to say everyday citizens should revere and respect the Constitution and its text and understand what it means. But to do that for such an important phrase as “due process” apparently requires them to have access to Eighteenth Century treatises and dictionaries and Nineteenth Century dictionaries and treatises to get the two true meanings of the exact same phrase.

    2. IANAL either so… take this for what you will. Just thinking out loud on this…

      I would imagine the argument would be that the state is required to ignore things that are learned unless they are incorporated into the law. So the state can learn, but it has to officially state that it has, as such, so that all citizens can now be fully aware of expectations of rules in an orderly and proper manner.

      If I act in an unseemly, yet legal, manner… it may be distasteful. However, as long as it is still clearly legal conduct I should be able to act and expect no state involvement. If the state “learns” and alters its rules then I would be expected to alter my behavior, but could not be held liable for not having altered my behavior beforehand.

      1. I would imagine the argument would be that the state is required to ignore things that are learned unless they are incorporated into the law. So the state can learn, but it has to officially state that it has, as such, so that all citizens can now be fully aware of expectations of rules in an orderly and proper manner.

        But we are talking about protections, not violations of law. The rules in question are rules that the state has to obey when enforcing the law, not that the individual has to follow.

    3. According to the originalists, only if you can get 2/3 of Congress and 3/4 of the states to amend the Constitution.

      1. But it doesn’t say “due process as we understand it today.” It says “due process,” which is broad and open-ended.

        We can believe either:

        1. The framers thought the processes in place at the time were perfect.


        2. They understood that these processes might be improved over time, and deliberately used broad language.

        Am I supposed to believe that no specific changes could be required without an Amendment each time? They didn’t prescribe specific rules, so how would that even work?

        1. Bernard, I didn’t say that’s my view. I agree with you. But I think most of the originalists here would say that if you’re changing what the framers understood to be the case, you need an amendment.

        2. Or

          3. The constitution is a muddled compromise between two different groups with very different views of what it should be. They deliberately used broad and vague language, not because they though it might be improved over time, but simply because they couldn’t agree on a clearer and / or more concise statement.

          1. Matthew,

            Certainly a reasonable point of view, but then why should we assume that the Constitution even implies a precise understanding of due process, much less that we can figure it out and must live with it?

            If you are correct then it seems foolish to make what seems to be the originalist assumption that there was a consensus as to precisely what these terms meant, and that the job today is to figure out that consensus and stick to it, even if it seems wrong-headed.

            1. “but then why should we assume that the Constitution even implies a precise understanding of due process, much less that we can figure it out and must live with it?”

              We shouldn’t.

              I see my self as a textualist, but not an originalist.

              Parts of the constitution are clear and concise. Other parts are clear as mud.

    4. My reading of Scalia’s view (in Burnham IIRC) was that a process that was in use in 1868 was per se sufficient, but that an assertion of jurisdiction that came about later (such as stream of commerce) could potentially pass muster depending on whether it was deemed reasonable under modern standards. So “tag jurisdiction” (where someone can be served in the forum state, even if they just wandered across the state line for a few moments by mistake) is approved because it was accepted at the time of ratification, even if it’s inconsistent with modern notions of due process. On the other hand, assertions of jurisdiction that were not in use at the time of ratification may or may not be approved depending on where they fell in the Int’l Shoe framework.

      1. My understanding is exactly the same as yours.

        But IIRC, Scalia never addressed/resolved the date issue w/r/t the difference between the 5th and the 14th; which is not something that comes up very often, but it does come up.

  7. Can the Constitution be amended by passing an amendment that is exactly the same as a prior amendment? So if 2/3 of each house of Congress and 3/4 of states ratified the language “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” what would happen?

    1. Maybe it would be taken as an indication that textual literalism was being demanded.

      1. Sort of a legal equivalent to, “I SAID, “xxxx”!”

        I’ve sometimes jokingly suggested that some of the amendments in the Bill of Rights could profit from having “Simon says,” or “,and we really mean it!” added to them, as a rebuke to the Court for ignoring the plain text. The 6th amendment in particular.

        1. Let me guess. You think the Sixth Amendment only guarantees fair trials to people who can afford it?

          1. Where did you get that idea? No, I think that “all” bloody well means “all”, not “some”. The Supreme court has held that you can be denied the right to a jury trial if, by their invented standards, it’s not a serious criminal prosecution.

            But they just pulled that out of their collective asses, the amendment says “all”.

            “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

            1. I figured you were against Gideon like other originalists are.

              1. No, I think Gideon was a reasonable interpretation, though not obligatory. I’ve just been royally pissed off about Lewis v US ever since I heard about it.

                1. Right. Sorry for confusion. The serious offense distinction for the Sixth Amendment has a long history, but you’re right, it’s not supported by the text at all. It also doesn’t quite square with the rule for appointed counsel whenever there is any possibility of incarceration. They should probably be coextensive.

                  1. The worst part of Lewis was denial of the right to a jury trial where multiple charges got you past their arbitrary threshold. That was just totally gratuitous, and violated their whole reasoning about minor offenses. In theory you could get hit with a hundred charges of something, and end up with effectively life in prison without ever having been before a jury. And the Court would be OK with that, because each individual count got you only a 6 month sentence.

                    1. The result in Lewis was a consequence of the “serious offense” distinction and follows once you accept it, distasteful as that might be. Lewis was charged with two counts of obstructing the mail based on two repetitions of the petty offense, so neither of which entitled him to a jury trial. Would you have been mollified if he had been subjected to two separate trials?

                    2. Multiple petty charges are too easy to game, it’s often possible to take a “serious” offense, and decompose it into multiple “petty” offenses.

                      You’re telling me that the 6th amendment guarantees the right to jury trial in “all” criminal cases, but you can reasonably be put in prison for decades while being denied one? Nope, these words I do not utter often: Stevens was right, and the conservative justices wrong.

                    3. No, I agree that the arguments that “all” means something less than “all” are weak. But once you get past that, and grudgingly accept that serious and petty offenses will be treated differently, and that six months imprisonment for an offense is the proxy you’ll use to establish seriousness, Lewis is the inevitable result.

                2. No, I think Gideon was a reasonable interpretation, though not obligatory.


                  In a vain effort to forestall the inevitable attacks, I certainly think it’s good policy for the government to provide counsel for indigent criminal defendants, and since that could well prove politically unpopular I can certainly see the argument for making it a constitutional requirement. But I don’t even see how you’d begin to argue (in an originalist fashion) that it actually is required by the sixth amendment.

                  1. Because the right to assistance of counsel is meaningless if you can’t afford counsel.

                    I’m sure there is an opposing originalist argument, though I can’t imagine it makes much sense to anyone not committed to the notion that criminal processes were frozen in amber in 1791.

                    1. Thomas (joined by Gorsuch unfortunately) made that case in an opinion I think two terms ago.

                    2. LTG,

                      Thomas (joined by Gorsuch unfortunately) made that case in an opinion I think two terms ago.

                      What argument did Thomas make?

                    3. Because the right to assistance of counsel is meaningless if you can’t afford counsel.

                      And the right to bear arms is meaningless if you can’t afford arms. Does that mean the second amendment requires the government to buy guns for indigent would-be militia members?

                    4. Not having a gun is not quite the same as being thrown into prison.

                      If we believe that defending oneself in court is a losing strategy then failing to provide a lawyer to the defendant is tantamount to letting the police convict the accused on their say-so.

                      Whatever due process is, it isn’t that.

                  2. Noscitur, it is true that the right to counsel wasn’t inherited from English law, in fact before 1836 English defendants didn’t have a legal right to a lawyer even if they could afford one. But how do you conclude that the inclusion of “right to assistance of counsel” in the Sixth was anything other than a clear and unambiguous abrogation of that rule, and that the right isn’t qualified by ability to pay?

                    1. I think you’ve kind of answered your own question: the point was to ensure that defendants could always have legal representation if they could arrange it (in abrogation of the common law rule), not to oblige the government to arrange it for them (although of course governments did provide such arrangements in some cases).

                      If it is so clear and unambiguous, why didn’t anyone realize that until 1938?

                    2. I haven’t found an entirely satisfying explanation. The usual one offered is a conclusory statement that the assistance of counsel wasn’t intended to go further than to reject the common law prohibition of counsel in felony trials, but I think the best actual evidence is the Crimes Act of 1790, passed contemporaneously by the same Congress that proposed the Bill of Rights. It is reasonable to argue that they would not have intended that the statute and amendment would disagree, but just what this demonstrates is unclear since the Act said that every capital defendant

                      shall be allowed and admitted to make his full defence by counsel learned in the law; and the court before whom such persons shall be tried, or some judge thereof, shall, and they are hereby authorized and required immediately upon his request to assign to such person such counsel, not exceeding two, as such person shall desire

                      without any such provisions for non-capital offenses. The difficulty is if you conclude from this that appointment of counsel was not intended for all criminal cases, then the same limitation should apply to the ability to make a full defense by counsel as opposed to the English practice when lawyers were permitted that they could only consult on questions of law and could not argue or examine witnesses.
                      Ref this paper for much of the background.

                  3. Gideon is about the right to counsel, but the reasoning is actually broader than that. As the Court explained counsel is often necessary for fair trials. Now one might argue that the Sixth Amendment doesn’t actually guarantee a “fair” trial, simply a speedy and public one, which would certainly be an interesting take.

                    1. If you find takes that are obviously correct interesting, I suppose…

                      The sixth amendment provides a discrete list of procedural requirements. To be sure, these requirements weren’t selected at random: they were things that people thought would generally promote fair and just outcomes. But I don’t see how that gives judges a warrant to impose other procedural requirements that aren’t in the sixth amendment because they will also produce fair and just outcomes.

                  4. I think as a general matter you can’t argue that guaranteeing a right requires the government to provide whatever it’s a right to, if the person can’t afford it. The right to freedom of the press doesn’t imply that the government must buy me a printing press.

                    However, I distinguish procedural rights when interacting with the government. The government itself creates your need for counsel!

                    So I think it’s reasonable, though not to the point of being obligatory, to say that the government must effectuate this particular right. Just as it can’t say, “You have the right to compulsory process for obtaining witnesses in your favor. We’re going to require you to pay the witnesses.”

                    Indeed, I’ve long thought the government had an obligation to make people charged with crimes whole after a failed prosecution. Because “The process IS the punishment.” isn’t just a metaphor, and the government isn’t constitutionally permitted to punish you if acquitted.

      2. I think the point is that if you stick to the originalist point of view, passing the Amendment again actually changes its meaning, since now “due process” means the process due as of 2020, rather than 1868.

        Seems sort of silly.

        1. Agreed. But it would be interesting to see it attempted just to see how many people insist we should keep it as it was in 1868 as an entirely normative matter.

        2. The obvious question is whether, since non-amendment keeps the meaning of the terms fixed for legal purposes, (Because Merriam-Webster isn’t entitled to amend the law…) does the new amendment, by using those words unchanged, adopt that fixed legal meaning? Or the modern colloquial meaning?

          It’s not an easy to resolve question, where you can point to an obviously correct answer. The way you could from an originalist standpoint if the amendment were being adopted for the first time today, without using words whose meanings were already locked down by existing text.

          I mean, I get the intent of the question, but anybody who actually did this would clearly be deliberately trying to cause problems, it’s the exact opposite of good drafting practice.

          Because of that, I have trouble engaging with it as a hypothetical.

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