Novel Perspectives on Due Process Symposium: The Rights of Foreign States in the Unites States Legal System

Professor Wuerth’s article is a significant piece of scholarship. This brief comment is devoted, not to the article’s many strengths, but to its principal doctrinal conclusion, with which I disagree. In my view, the Due Process Clause of the Fifth Amendment allows Congress to provide any rules it chooses regarding service of process on and personal jurisdiction over foreign sovereigns. That is true, at least, insofar as the judgments of U.S. courts are to be enforced against foreign sovereign assets located in the United States.

The rules about personal jurisdiction over foreign sovereigns in the Foreign Sovereign Immunities Act therefore are consistent with the Fifth Amendment. The statement that foreign sovereigns are not persons within the meaning of the Amendment may not be strictly correct, but it captures the substance of the rules regarding their status as parties in U.S. courts.