Amendment 14 — Personal Jurisdiction From Founding Era To 1945

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

Prior to ratification of the Fourteenth Amendment and the Supreme Court’s 1877 decision in Pennoyer v. Neff, a defendant that objected to the plaintiff’s state court exercising personal jurisdiction over him would typically wait to object to such exercise of jurisdiction until the plaintiff sought to have the defendant’s state court recognize and enforce the first court’s judgment.[1](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn1amd14 " Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1270 (2017). ") State (and, in some cases, federal)[2](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn2amd14 " Id. at 1279. ") courts considering whether such judgments were enforceable would resolve such jurisdictional challenges on the basis of general, customary law principles derived from English common law and international law addressing the recognition of foreign judgments rather than by applying the federal Constitution.[3](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn3amd14 " Id. ( “The Constitution’s role here was largely indirect—letting defendants remove their cases into federal court or challenge enforcement through diversity suits.” ). In the 1851 case D’Arcy v. Ketchum, decided prior to Pennoyer, in which an individual sought to enforce a New York judgment in a Louisiana federal court, the Supreme Court stated that “countries foreign to our own disregard a judgment merely against the person, where he has not been served with process nor had a day in court,” and that such proceedings are “deemed an illegitimate assumption of power, and resisted as mere abuse.” 52 U.S. (11 How.) 165, 174 (1851). ") However, in Pennoyer, the Supreme Court stated that the Fourteenth Amendment ’s Due Process Clause imposes constitutional limits on state courts’ exercise of personal jurisdiction over nonresident defendants.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn4amd14 " Pennoyer v. Neff, 95 U.S. 714 (1878) ( “Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that 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.” ), overruled in part by, Shaffer v. Heitner, 433 U.S. 186 (1977). ") Pennoyer converted the issue of personal jurisdiction into a question of federal constitutional law, allowing a party to obtain direct review of a state court’s judgment in a federal court that was not bound to apply state statutes or judicial precedent when deciding whether the issuing court had personal jurisdiction over the parties.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn5amd14 " Sachs, supra note 1, at 1253, 1288 ( “The Fourteenth Amendment remade this picture simply by changing the route for appeal. A judgment without jurisdiction was void; its execution took away property (or, less commonly, liberty) without due process of law. That turned the presence or absence of jurisdiction, full stop, into a matter of constitutional concern.” ). ")

In Pennoyer, the Court indicated that, absent a defendant’s consent, a state court’s jurisdiction generally extends only to persons or property within its territory.[6](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn6amd14 " Pennoyer, 95 U.S. at 720 ( “The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum . . . [an] illegitimate assumption of power, and be resisted as mere abuse.” ); id. at 722 ( “[N]o State can exercise direct jurisdiction and authority over persons or property [outside of] its territory.” ). The Pennoyer Court recognized that a tribunal had authority to exercise personal jurisdiction over a non-resident served with process while in the forum. Id. at 724 ( “Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced on such process against him.” ) (internal citations and quotation marks omitted). See also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) ( “Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person.” ); McDonald v. Mabee, 243 U.S. 90, 91 (1917) ( “The foundation of jurisdiction is physical power.” ). ") The Court grounded this “physical presence” approach in principles of federalism: each state of the union is a coequal and independent sovereign in the federal system, and thus possesses exclusive authority over persons and property within its domain.[7](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn7amd14 " Pennoyer, 95 U.S. at 722 ( “[E]very state possesses exclusive jurisdiction and sovereignty over persons and property within its territory . . . . The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others . . . . [N]o tribunal established by [a state] can extend its process beyond that territory so as to subject either persons or property to its decisions.” ). ") Although the Court’s decision in Pennoyer addressed personal jurisdiction over natural persons or people, the Court’s early jurisprudence following the 1877 case established that state courts could potentially exercise jurisdiction over foreign corporations doing business in the state because the law presumed that those corporations had implicitly consented to personal jurisdiction, or could be deemed “present” within the state, based on their in-state activities.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn8amd14 " Shaffer v. Heitner, 433 U.S. 186, 201 (1977) ( “[The Pennoyer] opinion approved the practice of considering a foreign corporation doing business in a State to have consented to being sued in that State. This basis for in personam jurisdiction over foreign corporations was later supplemented by the doctrine that a corporation doing business in a State could be deemed ‘present’ in the State, and so subject to service of process under the rule of Pennoyer.” ) (internal citations omitted). See also, e.g., Int’l Harvester Co. v. Kentucky, 234 U.S. 579, 586 (1914) ( “This course of conduct of authorized agents within the state in our judgment constituted a doing of business there in such [manner] that the Harvester Company might be fairly said to have been there, doing business, and amenable to the process of the courts of the state.” ); Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404, 408 (1856) ( “Now, when this corporation sent its agent into Ohio, with authority to make contracts of insurance there, the corporation must be taken to assent to the condition upon which alone such business could be there transacted by them; that condition being, that an agent, to make contracts, should also be the agent of the corporation to receive service of process in suits on such contracts.” ). ")

The Pennoyer Court’s “physical presence” test established the constitutional foundation for strict limits on state courts’ authority to exercise in personam jurisdiction over a nonresident defendant—that is, to render judgments concerning that defendant’s personal rights and obligations.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn9amd14 " Hanson v. Denckla, 357 U.S. 235, 246 n.12 (1958) ( “A judgment in personam imposes a personal liability or obligation on one person in favor of another.” ); Pennoyer, 95 U.S. at 727. ") Thus, for example, service upon a defendant by publishing notice of the lawsuit in a newspaper circulating in the forum state was insufficient to confer jurisdiction on a court to adjudicate the personal liability of a defendant who had left the state and did not intend to return.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn10amd14 " McDonald, 243 U.S. at 92 ( “[I]t appears to us that an advertisement in a local newspaper is not sufficient notice to bind a person who has left a state, intending not to return.” ). ") Nevertheless, even in the absence of a nonresident defendant’s physical presence or consent, courts could still attain jurisdiction over the defendant indirectly through the attachment (i.e., seizure) of the defendant’s property interests within the forum and the provision of notice to the defendant.[11](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn11amd14 " Pennoyer, 95 U.S. at 723 ( “But as contracts made in one State may be enforceable only in another State, and property may be held by non-residents, the exercise of the jurisdiction which every State is admitted to possess over persons and property within its own territory will often affect persons and property [outside of] it.” ). ") In particular, a state court could exercise in rem jurisdiction[12](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn12amd14 " In Rem Jurisdiction, Black’s Law Dictionary (10th ed. 2014) (defining “in rem jurisdiction” as a “court’s power to adjudicate the rights to a given piece of property, including the power to seize and hold it” ). ") over a nonresident defendant’s property interest in the state in order to adjudicate all of the rights or claims in a piece of property.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn13amd14 " Hanson, 357 U.S. at 246 n.12 ( “A judgment in rem affects the interests of all persons in designated property.” ). ") It could also exercise quasi in rem jurisdiction[14](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn14amd14 " Quasi-in-rem Jurisdiction, Black’s Law Dictionary, supra note 12 (defining “quasi-in-rem jurisdiction” as jurisdiction “over a person but based on that person’s interest in property located within the court’s territory” ). ") over a nonresident defendant by adjudicating a plaintiff’s claim to the property in relation to the defendant or to satisfy the claims of its own citizens against the defendant personally.[15](https://www.law.cornell.edu/constitution-conan/amendment-14/personal-jurisdiction-from-founding-era-to-1945#fn15amd14 " Hanson, 357 U.S. at 246 n.12 ( “A