Incorporating Personal Jurisdiction

As the Supreme Court continues to struggle to produce a coherent doctrine of personal jurisdiction, a growing number of commentators argue that personal jurisdiction lacks a constitutional foundation. On this view, the decision to elevate personal jurisdiction to a constitutional requirement following the Civil War was a mistake only partially remedied when the Court loosened the reins by adopting a more flexible requirement in the line of cases following World War II. What advocates of curtailing or eliminating the personal jurisdiction requirement overlook is both the historic pedigree of personal jurisdiction and its ongoing vitality as a substantive due process right. The concept of jurisdiction as a tool for policing the boundaries between sovereign states predated the Constitution and was embraced from ratification through the Civil War.

The novel idea developed by the Supreme Court at that time was the transformation of personal jurisdiction into an individual right to be free from ill founded assertions of government authority. This transformation foreshadowed the similar transformations that the Bill of Rights would undergo in the process of incorporation. This Article argues that treating personal jurisdiction as an incorporated right both explains its constitutional status and suggests a new framework for the debate regarding the scope of the right.