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.