Article

Settled Law

“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful concept, even though it does not embody any single, unified idea. First, we argue that controlling law, which essentially corresponds to binding precedent, is a fundamentally distinct concept that is neither synonymous with nor a subset of settled law. Second, we draw on seminal jurisprudential theories to build a taxonomy of five frameworks that capture how legal actors can invoke settled law, both rhetorically and doctrinally. Third, we demonstrate how a clearer understanding of settled law can make doctrine more coherent and administrable. Situating certain doctrines within the appropriate frameworks, and not conflating controlling law and settled law, would resolve myriad doctrinal anomalies. Moreover, greater conceptual precision can improve political rhetoric during the confirmation process by promoting clearer dialogue and discouraging legal actors from talking past one another.

Introduction

What does it mean to say that Roe v. Wade1 1.410 U.S. 113 (1973).Show More is “settled law”? Or Citizens United v. FEC?2 2.558 U.S. 310 (2010).Show More Or even Brown v. Board of Education?3 3.347 U.S. 483 (1954).Show More

The idea of settled law has played a pivotal role in Supreme Court confirmation hearings for more than thirty years, and it has animated myriad legal doctrines as far back as the eighteenth century.4 4.See, e.g., Penhallow v. Doane’s Adm’rs, 3 U.S. (3 Dall.) 54, 118 (1795) (Cushing, J.) (describing as “settled law and usage” the idea that “courts of Admiralty can carry into execution decrees of foreign Admiralties”).Show More Yet the meaning of settled law has proved stubbornly elusive. Does it refer simply to the idea that the Supreme Court has decided a particular issue, or does it connote something more enduring about particular precedents? Does it imply that a precedent is somehow “right”? Which courts (or other legal actors) have the power to settle the law? And how exactly does that happen?

Even though settled law had come up during earlier confirmation hearings,5 5.See, e.g., Nomination of Justice William Hubbs Rehnquist: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 356 (1986) (statement of Rehnquist, J.) (declaring that the incorporation of the right to a speedy trial through the Fourteenth Amendment “is settled law, and [his] opinions reflect it”); Nomination of Judge Antonin Scalia: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 83 (1986) (statement of Sen. Specter) (asking whether Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), “is a settled issue”); id. at 104 (statement of Sen. Biden) (“If it’s on the books, if it is settled constitutional law for an extended period of time, and the argument to overturn that settled constitutional principle does not in fact meet the test of on its face being consistent with what the correct constitutional principle is, do you have to stick with what the settled law is?”).Show More it first took center stage in the political arena during the Bork hearings. Under intense scrutiny about his academic writings, Judge Bork repeatedly tried to parry criticism of his controversial views by promising over and over that he would respect “settled law,” even if he disagreed with it.6 6.See, e.g., Nomination of Robert H. Bork To Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 279 (1987) (statement of Bork, J.) (repeatedly calling Brandenburg v. Ohio, 395 U.S. 444 (1969),“settled”); id. at 327 (declaring that “I certainly have no desire to go running around trying to upset settled bodies of law”); id. at 423 (“It seems to me that the settled law is now that the person writing the book does not have to prove that it is political or any way connected to politics. The settled law is the Government has to prove it is obscene.”); id. at 428 (“I am not changing my criticism of [Brandenburg]. I just accept it as settled law.”); id. at 434 (“It’s settled law. . . . I have said that I accept that body of precedent and will apply it. That’s all I’ve said.”); id. at 438 (declaring that “some things are absolutely settled in the law” and that “[a]ny judge understands that you don’t tear those things up”); id. at 587 (“I accept them as settled law. I have not said that I agree with all of those opinions now, but they are settled law and as a judge that does it for me.”); id. at 667 (“I have repeatedly said there are some things that are too settled to be overturned.”).Show More And notably, Judge Bork used that term to mean something quite distinct from the familiar principles of stare decisis.7 7.See id. at 989 (statement of Sen. Specter) (“[Judge Bork] flatly made a commitment to accept settled law. On the privacy cases he has not made that commitment. He has talked about various considerations of reliance and stare decisis, but he has made no commitment on privacy . . . .”).Show More Since then, every Supreme Court nominee has faced questions about settled law, even as the term’s ambiguity has grown increasingly apparent.8 8.See infra notes 278–85 and accompanying text.Show More

Discussions of settled law have become even more prominent in recent years as President Trump’s judicial nominees faced pointed questions about whether they agreed with certain precedents or, at a minimum, regarded them as settled.9 9.SeeLaura Meckler & Robert Barnes, Trump Judicial Nominees Decline To EndorseBrown v. Board Under Senate Questioning, Wash. Post (May 16, 2019, 7:28 PM), https://www.washingtonpost.com/local/education/trump-judicial-nominees-decline-to-endo­rse-brown-v-board-under-senate-questioning/2019/05/16/d5409d58-7732-11e9-b7ae-390de­4259661_story.html [https://perma.cc/F5FK-GNPW] (describing how Sen. Blumenthal frequently asks whether nominees regard Brown as correct); Marcia Coyle, Revisiting Amy Coney Barrett Statements About Abortion Rights, Nat’l L.J. (Sept. 25, 2020, 3:12 PM), https://www.law.com/nationallawjournal/2020/09/25/revisiting-amy-coney-barrett-statemen­ts-about-abortion-rights/?slreturn=20200908080816 [https://perma.cc/2EKP-YDQE] (des­cribing how Sen. Blumenthal asked then-nominee Amy Coney Barrett if she “think[s] Roe v. Wade was correctly decided”).Show More Sometimes nominees have refused to engage.10 10.See Meckler & Barnes, supra note 9 (describing nominees who refused to directly answer Sen. Blumenthal’s question about Brown); see alsoAriane de Vogue, Judicial Nominees Are Changing Their Approach to the ‘Brown v. Board’ Question at Senate Hearings, CNN (Feb. 10, 2019), https://www.cnn.com/2019/02/10/politics/brown-v-board-senate-judicial-nom­inees/index.html [https://perma.cc/8BP5-7PBZ] (noting that in response to Sen. Blumenthal’s question about Brown, now-Judge Neomi Rao described the case as “longstanding precedent of the Supreme Court,” declared that it was “not appropriate” to comment on the “correctness of particular precedents,” but argued that “it’s hard for me to imagine a circumstance in which Brown v. Board would be overruled by the Supreme Court”).Show More On other occasions, Senators and nominees have appeared to use “settled law” in conspicuously different ways,11 11.For example, in 2010, then-Senator Sessions suggested that “settled law” connoted “a more firm acknowledgment of the power of that ruling” than mere “precedent” and asked then-U.S. Solicitor General Elena Kagan whether she was using “settled law” and “precedent” interchangeably. The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 231 (2010) (statement of Sen. Sessions). She responded: “I don’t mean any difference.” Id. (statement of Elena Kagan, Solicitor General of the United States).Show More a phenomenon brought into stark relief during Justice Kavanaugh’s confirmation hearing. Responding to a question from Senator Feinstein, the future Justice declared that Roe v. Wade was “settled as a precedent of the Supreme Court, entitled to respect under principles of stare decisis.”12 12.C-SPAN, Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, Day 2, Part 1, C-SPAN (Sept. 5, 2018), https://www.c-span.org/video/?449705-1/supreme-court-nom­inee-brett-kavanaugh-confirmation-hearing-day-2-part-1 [https://perma.cc/7N8B-S2­MC] (relevant exchange occurring from 48:25 to 49:10).Show More The next day, The New York Times published a previously confidential e-mail from 2003 in which Kavanaugh had written: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”13 13.Charlie Savage, Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action, N.Y. Times (Sept. 6, 2018), https://www.nytimes.com/2018/09/06/us/politics/­kavanaugh-leaked-documents.html [https://perma.cc/3C4Q-7SAH].Show More These statements provided grist for some to call him disingenuous.14 14.See, e.g.,Igor Bobic, Susan Collins Downplays Brett Kavanaugh Email About Abortion Rights and ‘Settled Law’, HuffPost (Sept. 6, 2018, 4:58 PM), https://www.huffpost.com/­entry/brett-kavanaugh-susan-collins-roe-v-wade_n_5b9165b1e4b0511db3e04121 [https://p­erma.cc/4YMT-J9S5] (quoting Sen. Blumenthal urging undecided Republicans to “read this [email] and then tell [him] Judge Kavanaugh has been candid with [them]”).Show More Others argued that he was making distinct and mutually consistent claims—a prediction of whether the Court would revisit the abortion precedents versus an assessment of whether those precedents should stand undisturbed.15 15.See, e.g., id. (quoting Sen. Collins saying that Kavanaugh “was merely stating a fact, which is that three [Justices] on the [C]ourt were anti-Roe,” and “[i]f that’s the case and he was not expressing his view, then [she was] not sure what the point of it [was]”).Show More

Settled law is far more than an enigmatic buzzword that gets bandied about during confirmation hearings, though; it also serves an important structural role and has profound doctrinal implications. For example, lower-court judges often speak about their duty to follow the settled law of superior courts.16 16.See infra notes 26–27 and accompanying text.Show More Most surprisingly, an array of doctrines depend substantively on whether the law is “settled.” In the realm of constitutional torts, for instance, a plaintiff attempting to bring a Section 1983 claim usually must overcome the defendant’s qualified immunity by showing that the defendant violated a constitutional rule that was “clearly established” under “settled law.”17 17.District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018); see also id. at 591 (“The rule applied by [the court below] was not clearly established because it was not ‘settled law.’” (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991))).Show More So, too, settled law undergirds the circumstances when post-conviction relief is available,18 18.E.g., In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000) (holding that whether the settled law established the legality of a conviction is part of the Fourth Circuit’s three-prong test to determine the availability of a writ of habeas corpus).Show More lawyers’ ethical obligations under Rule 11,19 19.E.g., Pro. Mgmt. Assocs. v. KPMG LLP, 345 F.3d 1030, 1033 (8th Cir. 2003) (remanding and ordering the lower court to impose a Rule 11 sanction to a plaintiff’s counsel for ignoring the “well-settled law” of res judicata under the circumstances of the case).Show More standards of review,20 20.E.g., United States v. Gary, 954 F.3d 194, 202 (4th Cir. 2020) (quoting United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014)) (holding that “if the settled law of the Supreme Court or this circuit establishes that an error has occurred,” the error satisfies the plain error standard of review).Show More and a host of other doctrines.21 21.See, e.g., Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (quoting Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)) (fraudulent joinder).Show More Across these contexts, though, a firm understanding of what counts as settled law has proved chimerical.

Given the definitional morass, one might conclude that “‘settled law’ is just a euphemism.”22 22.Ilya Somin, Why “Settled Law” Isn’t Really Settled—and Why That’s Often a Good Thing, Reason: The Volokh Conspiracy (Sept. 9, 2018, 3:57 PM), https://reason.com/­2018/09/09/why-settled-law-isnt-really-settled-and/ [https://perma.cc/4N­SU-3N4A].Show More On this view, the term is so capacious as to become meaningless, conveying nothing useful about the weight that precedent deserves or the conditions (if any) under which a court should overrule it.

Our principal goal is to show that settled law does coherent and powerful work, even though it resists a single, overarching definition. In fact, settled law makes sense only when one appreciates that it comprises several distinct notions that do not share a common attribute. A more precise understanding of this hydra-like term has the power to clarify doctrine and improve political rhetoric. What seem like conceptual oddities in a number of doctrines actually make good theoretical sense when viewed through the lens of settled law. Moreover, settled law can play a meaningful role in confirmation hearings, but only if legal actors fully grasp its multifaceted nature. It offers a productive way to explore how politicians, judicial nominees, and the general public understand the judicial role, including how the obligations of Supreme Court Justices differ from those of lower-court judges.

We begin in Part I by differentiating between two concepts that we call controlling law and settled law. Controlling law essentially refers to the concept of binding precedent, including in its most conspicuous manifestation: an inferior court’s duty to follow the precedents of superior courts. Although one might think of controlling law as a species of settled law, we argue that the two are actually distinct ideas that address very different questions and are, at most, only tangentially related. Much of the confusion about settled law, in fact, stems from conflating these concepts. Not allowing discussions of settled law to revert into the familiar language of controlling law is thus a critical first step.

Part II demonstrates that settled law is not just an empty euphemism, even though it doesn’t embrace a single idea. In fact, settled law makes sense only when one appreciates that it comprises several notions that do not share a common attribute.

On an intuitive level, the starkest divide lies between normative and descriptive claims about settled law. For example, someone might classify Brown as settled law, normatively, because it achieved the right substantive result. Or, irrespective of Brown’s fundamental correctness, one might view it as descriptively settled because everyone recognizes that it’s here to stay. Even within these broad categories, though, variation abounds. For example, calling Brown normatively settled could mean that the decision was consonant with the original meaning of the Fourteenth Amendment or, alternatively, that it achieved a socially desirable outcome by advancing the cause of racial justice. Calling Brown descriptively settled could mean that the Supreme Court has left the precedent undisturbed for more than fifty years, that a future Court is unlikely to overrule it, that principles of stare decisis have effectively entrenched it, or that it has achieved wide popular acceptance.

We bring theoretical rigor to this intuition about the descriptive-normative divide by overlaying it with seminal jurisprudential theories: formalism, realism, and legal process theory. Based on these theories, we develop a taxonomy of five concepts that “settled law” can embrace.

The first two concepts derive from legal formalism.23 23.See, e.g., Warren Sandmann, The Argumentative Creation of Individual Liberty, 23 Hastings Const. L.Q. 637, 645 (1996) (“Legal formalism . . . is in its many guises one of the more dominant approaches to judicial decisionmaking.”).Show More As a normative matter, a formalist insists that law is settled when it has achieved the demonstrably “right” result based on the law’s internal logic.24 24.Thomas C. Grey, Langdell’s Orthodoxy, 45 U. Pitt. L. Rev. 1, 8 (1983).Show More But from a descriptive perspective, a formalist might accept that law is settled—even if it has not reached the objectively correct result—when the concerns of stare decisis, such as reliance, predictability, and basic fairness, are paramount.25 25.See Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 Tex. L. Rev. 1843, 1874 (2013) (citing Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. L. 155, 186, 192–95 (2006)) (describing a “neoformalist” model of stare decisis in which even judicial “mistakes” can and should create binding precedents, if they are decided through a formalistic process of reasoning); Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017) (describing Justice Scalia’s approach to the tension between the value of stare decisis and a formalistic, originalist reading of the Constitution).Show More

The next two concepts of settled law draw on the legal realist school.26 26.SeeFrederick Schauer, Legal Realism Untamed, 91 Tex. L. Rev. 749, 749 (2013) (“Legal Realism is conventionally understood, in part, to question legal doctrine’s determinacy and positive law’s causal effect on judicial decisions.”).Show More Descriptively, a realist regards law as settled when it faces no material threat of reversal.27 27.As we build out below, it essentially constitutes an exercise in Holmesian Prediction Theory. SeeO.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460–61 (1897).Show More Normatively, a realist will insist that law is settled only when it has achieved the “right” result, but she understands that idea very differently than a formalist does. The correct result for a legal realist corresponds to some external frame of reference, such as utility, efficiency, or social justice.28 28.For the foundational realist works encouraging an interdisciplinary approach to law, see Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935); Jerome Frank, Law & the Modern Mind (Transaction Publishers 2009) (1930); Karl N. Llewellyn, Law and the Social Sciences—Especially Sociology, 62 Harv. L. Rev. 1286 (1949); Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence (pts. 1 & 3), 24 Harv. L. Rev. 591 (1911), 25 Harv. L. Rev. 489 (1912).Show More

The fifth and final concept of settled law draws on legal process theory, which focuses on a legal decision’s methodological process rather than its substantive outcome.29 29.The seminal tome of the legal process school is Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). For an overview of the related concept of procedural justice, see Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181 (2004).Show More For the legal process theorist, law is settled if and when a duly constituted court reaches a decision through an appropriate methodology, and within this framework the descriptive and normative perspectives essentially become inseparable.

A simple illustration might help reify these five theoretical concepts. Consider the question: “Is Marbury v. Madison settled law?” Nearly everyone would say “yes,” but Table 1 identifies more precisely the five different ideas that someone could intend to communicate when asserting that Marbury is settled.

Table 1: The Taxonomy of Settled Law

Framework

Marbury v. Madison is settled law.

Normative Formalism

Marbury arrived at the objectively correct understanding of constitutional law.

Descriptive Formalism

Principles of stare decisis require continued adherence to Marbury.

Descriptive Realism

There is no material chance that the Supreme Court will overrule Marbury in the near future.

Normative Realism

Marbury achieved a desirable outcome in light of its intra- and extra-legal consequences.

Legal Process

Marbury merits continued adherence because it was issued by a duly constituted court employing an appropriate methodology.

In Part III, we show why developing a clearer understanding of settled law is far more than an academic exercise. At the intensely practical level, settled law suffuses a diverse array of doctrines, and failing to appreciate how it functions has led to pervasive confusion and mistakes. Our principal example comes from the qualified immunity context. Although courts often cast the relevant inquiry in terms of controlling law—whether binding precedent has clearly established that a particular right exists—this approach has invited a host of anomalies and errors. Instead, we argue that viewing qualified immunity through the lens of settled law makes much more sense doctrinally and normatively. Moreover, understanding qualified immunity as turning on settled law—specifically, two of the taxonomy’s five concepts—alleviates nearly all of the current conceptual problems and has the potential to refocus courts on the heart of the inquiry.

Finally, we argue that a more nuanced understanding of settled law can enhance legal dialogue, particularly the conversation about judicial nominations. Too often legal actors talk past one another because they use “settled law” to convey different ideas, and that in turn can lead to unfounded allegations of bad faith. On this level, the taxonomy is not a panacea; far from it. But greater conceptual clarity about settled law can train attention on the debates that truly matter rather than a bewitching semantic game.

The Unlimited Jurisdiction of the Federal Courts

Federal courts are courts of limited jurisdiction—but only in part. A federal court’s subject-matter jurisdiction is limited by the Constitution; its territorial, personal jurisdiction is not. Current doctrine notwithstanding, a federal court’s writ may run as far as Congress, within its enumerated powers, would have it go.

Today’s doctrine limits federal jurisdiction by borrowing Fourteenth Amendment principles thought to govern state courts. This borrowing blocks recoveries by injured plaintiffs, such as American victims of foreign terrorist attacks; and it’s become a font of confusion for procedure scholars, giving rise to incisive critiques of the Federal Rules.

It’s also a mistake. The Fourteenth Amendment didn’t impose new limits on state personal jurisdiction; it enabled federal enforcement of limits that already applied. Current doctrine retroactively forces the Fifth Amendment into the mold of the modern Fourteenth, transforming an expansion of federal power into a strict constraint on federal authority.

The federal courts’ territorial jurisdiction depends, in the first instance, on Congress’s powers. It may be that Congress can authorize fully global jurisdiction over any suit within Article III. If not, Congress may have ways to make better use of its jurisdictional powers at home. Either way, the existing mix of statutes and procedural rules seems fully valid. If the Constitution didn’t impose limits on Congress or on the federal courts, modern doctrine shouldn’t either.

Introduction

Everyone knows that “[f]ederal courts are courts of limited jurisdiction.”1 1.Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).Show More But this is only half right. A federal court’s subject-matter jurisdiction is affirmatively limited by the Constitution. Its territorial, personal jurisdiction is not. A federal court’s writ may run as far as Congress, within its enumerated powers, would have it go.

That this view might seem unusual—even alarming—reflects profound and widespread confusion about personal jurisdiction. Under current doctrine, state-court jurisdiction is hemmed in by the Fourteenth Amendment’s Due Process Clause,2 2.U.S. Const. amend. XIV (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”).Show More which requires “minimum contacts” that satisfy “traditional notions of fair play and substantial justice.”3 3.Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).Show More The Fifth Amendment has a Due Process Clause too,4 4.U.S. Const. amend. V (“[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .”).Show More so it’s easy to imagine similar rules for federal courts. Without Supreme Court precedent on point,5 5.See Bristol-Myers Squibb Co. v. Super. Ct., 137 S. Ct. 1773, 1783–84 (2017) (“leav[ing] open the question [which restrictions] the Fifth Amendment imposes . . . on the exercise of personal jurisdiction by a federal court”); Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987) (declining to decide whether “a federal court could exercise personal jurisdiction, consistent with the Fifth Amendment, based on an aggregation of the defendant’s contacts with the Nation as a whole, rather than on its contacts with the State in which the federal court sits”); Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 113 n.* (1987) (“We have no occasion here to determine whether Congress could, consistent with the Due Process Clause of the Fifth Amendment, authorize federal court personal jurisdiction over alien defendants based on the aggregate of national contacts, rather than on the contacts between the defendant and the State in which the federal court sits.”).Show More the courts of appeals all agree that the Fifth Amendment requires at least the sorts of national contacts that the Fourteenth Amendment requires of a state.6 6.See Double Eagle Energy Servs., L.L.C. v. MarkWest Utica EMG, L.L.C., 936 F.3d 260, 264 (5th Cir. 2019); Livnat v. Palestinian Auth., 851 F.3d 45, 54 (D.C. Cir. 2017); Xilinx, Inc. v. Papst Licensing GmbH & Co. KG, 848 F.3d 1346, 1352–53, 1353 n.2 (Fed. Cir. 2017); Waldman v. Palestine Liberation Org., 835 F.3d 317, 330–31 (2d Cir. 2016), motion to recall the mandate denied, 925 F.3d 570 (2d Cir. 2019), vacated and remanded sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020); Trs. of the Plumbers & Pipefitters Nat’l Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 443–44 (4th Cir. 2015); Klein v. Cornelius, 786 F.3d 1310, 1318 (10th Cir. 2015); KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 731 (7th Cir. 2013); Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004); Pinker v. Roche Holdings Ltd., 292 F.3d 361, 370–71, 370 n.2 (3d Cir. 2002); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001); Med. Mut. of Ohio v. deSoto, 245 F.3d 561, 567–68 (6th Cir. 2001); In re Fed. Fountain, Inc., 165 F.3d 600, 601–02 (8th Cir. 1999) (en banc); Republic of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 946–47 (11th Cir. 1997); accord Brief for the United States as Amicus Curiae at 15 & n.3, Sokolow v. Palestine Liberation Org., 138 S. Ct. 1438 (2018) (No. 16-1071).Show More In other words, current doctrine treats the United States as a state, but larger; it takes the Fourteenth Amendment as given, and remakes the Fifth Amendment in its image.7 7.See, e.g., 4 Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and Procedure § 1068.1, at 694–95, 695 n.10 (4th ed. 2015); Chimène I. Keitner, Personal Jurisdiction and Fifth Amendment Due Process Revisited, in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law 231, 248 (Paul B. Stephan & Sarah H. Cleveland eds., 2020); William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, 116 Mich. L. Rev. 1205, 1210 (2018) (noting that “[o]ther authors have advocated a national-contacts approach in various contexts, including . . . under the Fifth but not the Fourteenth Amendment,” and collecting citations); Allan Erbsen, Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather than Liberty After Walden v. Fiore, 19 Lewis & Clark L. Rev. 769, 776 (2015); Leslie M. Kelleher, Amenability to Jurisdiction as a “Substantive Right”: The Invalidity of Rule 4(k) Under the Rules Enabling Act, 75 Ind. L.J. 1191, 1216 (2000) (describing it as “generally . . . accepted” that the Fifth Amendment “requires sufficient affiliating contacts with the nation as a whole, rather than just the forum state”); Jonathan Remy Nash, National Personal Jurisdiction, 68 Emory L.J. 509, 523–24 (2019).Show More

This is all backwards. The Fifth Amendment came first, and the Fourteenth was modeled on it. We need to understand how personal jurisdiction was supposed to work—before the Fourteenth Amendment—if we want to understand what the Due Process Clauses actually do.

For the first 150 years of the Republic, today’s conventional view of personal jurisdiction wasn’t so conventional. Though the early Congress refrained from exercising its full powers, the recognized doctrines of jurisdiction worked very differently for state and federal courts. The narrow limits on state jurisdiction discussed in Picquet v. Swan,8 8.19 F. Cas. 609 (C.C.D. Mass. 1828) (No. 11,134).Show More a widely cited opinion by Justice Story, were still influential a half-century later in Pennoyer v. Neff.9 9.95 U.S. 714, 724 (1878); see also, e.g., Toland v. Sprague, 37 U.S. (12 Pet.) 300, 328 (1838) (endorsing Picquet’s reasoning); Warren Mfg. Co. v. Etna Ins. Co., 29 F. Cas. 294, 298 n.4 (C.C.D. Conn. 1837) (No. 17,206) (citing Picquet) (date ascribed in Gerard Carl Henderson, The Position of Foreign Corporations in American Constitutional Law 81 n.1 (1918)); Dearing v. Bank of Charleston, 5 Ga. 497, 515 (1848) (citing Picquet); Steel v. Smith, 7 Watts & Serg. 447, 450 (Pa. 1844) (same).Show More Yet Picquet maintained that a federal court’s ability to have “a subject of England, or France, or Russia . . . summoned from the other end of the globe to obey our process, and submit to the judgment of our courts,” was up to Congress.10 10.19 F. Cas. at 613.Show More If Congress wanted to exercise exorbitant jurisdiction, contrary to “principles of public law, public convenience, and immutable justice,” a federal court “would certainly be bound to follow it, and proceed upon the law.”11 11.Id. at 614–15.Show More

The contrary modern assumption, that federal and state courts face roughly the same constitutional limits, has serious practical consequences. Two circuits recently invalidated, as applied, an act of Congress authorizing jurisdiction over foreign terrorists and sponsors for attacks on Americans abroad.12 12.See Estate of Klieman v. Palestinian Auth., 923 F.3d 1115, 1118, 1128, 1131 (D.C. Cir. 2019) (applying the Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333–2334), vacated and remanded, 140 S. Ct. 2713 (2020); Livnat v. Palestinian Auth., 851 F.3d 45, 53 (D.C. Cir. 2017); Waldman v. Palestine Liberation Org., 835 F.3d 317, 335–37 (2d Cir. 2016), motion to recall the mandate denied, 925 F.3d 570 (2d Cir. 2019), vacated and remanded sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020).Show More Responding to the murder of Leon Klinghoffer, the statute specifically sought to expand Americans’ right to sue over terrorist attacks in foreign countries.13 13.See Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1010–11 (7th Cir. 2002).Show More But because the individual states lack jurisdiction in these cases,14 14.See Walden v. Fiore, 571 U.S. 277, 286–89 (2014).Show More and because the attacks weren’t specifically aimed at Americans, the defendants’ U.S. contacts fell short. Congress has twice amended the statute to try different approaches, and these may yet succeed.15 15.See Promoting Security and Justice for Victims of Terrorism Act of 2019, Pub. L. No. 116-94, § 903, 133 Stat. 3082, 3082–83; Anti-Terrorism Clarification Act of 2018, Pub. L. No. 115-253, § 4, 132 Stat. 3183, 3184; Klieman, 140 S. Ct. 2713; Sokolow, 140 S. Ct. 2714.Show More If, though, Congress really does have power to authorize these suits—if its powers haven’t shrunk since Justice Story’s day—then the courts have no business sending the plaintiffs home empty-handed, or letting the defendants off scot-free.

The assumption that jurisdiction works the same way in state and federal court has serious theoretical consequences too. Today federal personal jurisdiction is litigated primarily under the Federal Rules of Civil Procedure.16 16.See Fed. R. Civ. P. 4(k).Show More But the relevant rules’ validity has been questioned since their adoption, and the skeptics have recently grown in number.17 17.See, e.g., Kelleher, supra note 7; A. Benjamin Spencer, Substance, Procedure, and the Rules Enabling Act, 66 UCLA L. Rev. 654 (2019); Patrick Woolley, Rediscovering the Limited Role of the Federal Rules in Regulating Personal Jurisdiction, 56 Hous. L. Rev. 565 (2019); accord Lumen N. Mulligan, Is Personal Jurisdiction Constitutionally Self-Enacting?, Jotwell (May 7, 2019), https://courtslaw.jotwell.com/is-personal-jurisdiction-consti­tutionally-self-enacting/ [https://perma.cc/E8G4-NVDR].Show More Limits on state jurisdiction stem from external principles of law, principles that can’t be amended by state rules of practice and procedure. If similar limits apply to federal jurisdiction, then much current practice is unlawful. But if not—if all the federal courts really need is authorization to issue process, in a particular place and in a particular way—then the Federal Rules are still valid, and the Supreme Court can still address the issue via rulemaking.

Given the stakes, federal personal jurisdiction deserves another look. Many scholars have called for expanding federal jurisdiction through new rules or statutes,18 18.See, e.g., Robert Haskell Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L.J. 1, 32–49 (1982); Edward L. Barrett, Jr., Venue and Service of Process in the Federal Courts—Suggestions for Reform, 7 Vand. L. Rev. 608, 627–35 (1954); Allan Erbsen, Impersonal Jurisdiction, 60 Emory L.J. 1, 77–84 (2010); Geoffrey C. Hazard, Jr., Interstate Venue, 74 Nw. U. L. Rev. 711, 712–13 (1979); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction To Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1123 (1966); Nash, supra note 7, at 557–61; Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, 108 Nw. U. L. Rev. 1301, 1315–46 (2014); A. Benjamin Spencer, Nationwide Personal Jurisdiction for Our Federal Courts, 87 Denv. U. L. Rev. 325, 329–34 (2010); A. Benjamin Spencer, The Territorial Reach of Federal Courts, 71 Fla. L. Rev. 979, 991–94 (2019).Show More or for reinterpreting present law for policy-adjacent reasons—say, because the federal government has broader interests in foreign affairs,19 19.E.g., A. Mark Weisburd, Due Process Limits on Federal Extraterritorial Legislation?, 35 Colum. J. Transnat’l L. 379, 409, 415–16, 428 (1997); Ariel Winawer, Comment, Too Far from Home: Why Daimler’s “At Home” Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-Terrorism Act Cases, 66 Emory L.J. 161, 185–87 (2016).Show More or because principles of reciprocity or horizontal federalism no longer apply at the federal level.20 20.E.g., Wendy Perdue, Aliens, the Internet, and “Purposeful Availment”: A Reassessment of Fifth Amendment Limits on Personal Jurisdiction, 98 Nw. U. L. Rev. 455, 461 (2004); Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57 Va. J. Int’l L. 325, 328 & n.13 (2018); cf. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980) (discussing the role of “interstate federalism”).Show More Historical or formalist studies of jurisdiction tend to focus on state courts, not federal ones—and on due process, not congressional power.21 21.See, e.g., Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24 U.C. Davis L. Rev. 19, 24, 43–56 (1990); Jay Conison, What Does Due Process Have To Do with Jurisdiction?, 46 Rutgers L. Rev. 1071, 1073–74, 1140–58 (1994); Geoffrey C. Hazard, Jr., A General Theory of State-Court Jurisdiction, 1965 Sup. Ct. Rev. 241, 262–81; John B. Oakley, The Pitfalls of “Hint and Run” History: A Critique of Professor Borchers’s “Limited View” of Pennoyer v. Neff, 28 U.C. Davis L. Rev. 591, 596–97, 616–746 (1995); Wendy Collins Perdue, What’s “Sovereignty” Got To Do with It? Due Process, Personal Jurisdiction, and the Supreme Court, 63 S.C. L. Rev. 729, 730–39 (2012); Martin H. Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 Nw. U. L. Rev. 1112, 1115–20 (1981); Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1273–78, 1287–1313 (2017); Roger H. Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 871–898 (1989); James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 Va. L. Rev. 169, 191–230 (2004); Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part One), 14 Creighton L. Rev. 499, 570–89 (1981) [hereinafter Whitten, Part One]; Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part Two), 14 Creighton L. Rev. 735, 768–835 (1981) [hereinafter Whitten, Part Two].Show More (Justice Story’s striking discussion in Picquet, for example, has attracted virtually no scholarly interest.22 22.As of October 3, 2020, key phrases from the opinion such as “England, or France, or Russia,” “other end of the globe,” or “proceed upon the law” yield no relevant hits in Westlaw’s Secondary Sources: Law Reviews & Journals database, aside from this author.Show More)

This Article suggests a change of course. We should stop looking for jurisdictional limits in the Fifth Amendment’s Due Process Clause, and start thinking about Congress’s enumerated powers instead.

The argument proceeds as follows. Jurisdictional limits have always been with us, but Fifth Amendment limits are a recent innovation. When American courts first began articulating limits on personal jurisdiction, they didn’t look to state or federal due process clauses, but to rules of general or international law that regulated the authority of separate sovereigns.23 23.SeeSachs, supra note 21, at 1269–87.Show More The Fourteenth Amendment changed this picture for state courts, because it enabled direct federal-question review of their jurisdictional rulings: as Pennoyer explained, “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.”24 24.Pennoyer v. Neff, 95 U.S. 714, 733 (1878).Show More

The picture for federal courts, however, is very different. Federal courts generally look to state laws only “in cases where they apply.”25 25.Rules of Decision Act, 28 U.S.C. § 1652 (2018).Show More Yet all valid federal law is “the supreme Law of the Land,” with “the Judges in every State . . . bound thereby.”26 26.U.S. Const. art. VI, cl. 2.Show More A federal long-arm provision, if within Congress’s enumerated powers, establishes territorial jurisdiction to the satisfaction of the courts; the due process objection to a judgment-without-jurisdiction can never get started. The federal government can look past a state’s assertion of jurisdiction, but not the other way round.

The Article then examines what enumerated powers Congress might use to expand federal personal jurisdiction beyond what modern doctrine allows. Broad jurisdiction might be necessary and proper to carry into execution the federal courts’ subject-matter jurisdiction.27 27.See id. art. I, § 8, cl. 18 (granting power “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”).Show More If a foreigner manages to breach a federal duty, or if a citizen of a state has a controversy with a citizen or subject of a foreign state, those cases and controversies may be heard in federal court.28 28.See id. art. III, § 2, cl. 1.Show More So Congress may be within its rights to “summon[]” such defendants “from the other end of the globe to obey our process, and submit to the judgment of our courts.”29 29.Picquet v. Swan, 19 F. Cas. 609, 613 (C.C.D. Mass. 1828) (No. 11,134) (Story, Circuit Justice).Show More Or, if it can’t have process sent abroad, Congress might try unusual methods of serving foreign defendants here, parlaying what would ordinarily be limited jurisdiction into a general jurisdiction on any topic whatsoever.30 30.See id. at 615 (suggesting that Congress could authorize unorthodox jurisdiction predicated on service by attachment of property in the United States).Show More Either way, we should leave the Fifth Amendment to its own work. Due process may still require that defendants receive adequate notice,31 31.SeeMullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 320 (1950).Show More that the forum not be so burdensome as to render the proceedings a sham,32 32.See Bd. of Trs., Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1036 (7th Cir. 2000) (Easterbrook, J.).Show More and so on. But as to the scope of the courts’ territorial jurisdiction, the Clause has nothing to say.

Finally, the Article turns to what Congress has actually done with its powers. A handful of statutes achieve universal jurisdiction through worldwide service of process, but most federal jurisdictional work is performed by the Federal Rules. And while the drafters of those Rules may not have fully understood their handiwork, its result appears to be lawful: the Rules Enabling Act’s “power to prescribe general rules of practice and procedure”33 33.28 U.S.C. § 2072 (2018).Show More encompasses the power to make rules for service of process, including rules for when that process will or won’t be taken as asserting the court’s jurisdiction.

So this Article may be less revisionist than first appears. If its arguments are correct, their most immediate consequence is to preserve the status quo, including the validity of the Federal Rules. The next result is to let the federal courts exercise the full breadth of the jurisdiction Congress has already conferred. And the final implication is to put Congress back in the driver’s seat, with authority to redefine the federal courts’ reach without regard to recently invented judicial barriers. If the Court adopts new standards via rulemaking, if Congress expands federal personal jurisdiction by statute, or if the President makes a jurisdictional treaty with the Senate’s advice and consent, these policy decisions wouldn’t—and shouldn’t—be hampered by an ever-expanding vision of the Due Process Clause.34 34.Cf. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 903 (2009) (Scalia, J., dissenting) (“Turn it over, and turn it over, for all is therein.” (quoting 8 The Babylonian Talmud: Seder Nezikin, Tractate Aboth 76–77 (I. Epstein ed. & trans., 1935))).Show More

  1. * Colin W. Brown Professor of Law, Duke University School of Law. The author is grateful to William Baude, Samuel Bray, Nathan Chapman, Robin Effron, James Grimmelmann, Chimène Keitner, Richard Re, Amanda Schwoerke, Patrick Woolley, Ingrid Wuerth, Ernest Young, and the attendees of the Civil Procedure Workshop and the University of Chicago Work-in-Progress Workshop for advice and comments, and to Scotty Schenck and Siqi Wang for excellent research assistance. ↑
  2. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). ↑
  3.  U.S. Const. amend. XIV (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”). ↑
  4. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted). ↑
  5. U.S. Const. amend. V (“[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .”). ↑
  6. See Bristol-Myers Squibb Co. v. Super. Ct., 137 S. Ct. 1773, 1783–84 (2017) (“leav[ing] open the question [which restrictions] the Fifth Amendment imposes . . . on the exercise of personal jurisdiction by a federal court”); Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987) (declining to decide whether “a federal court could exercise personal jurisdiction, consistent with the Fifth Amendment, based on an aggregation of the defendant’s contacts with the Nation as a whole, rather than on its contacts with the State in which the federal court sits”); Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 113 n.* (1987) (“We have no occasion here to determine whether Congress could, consistent with the Due Process Clause of the Fifth Amendment, authorize federal court personal jurisdiction over alien defendants based on the aggregate of national contacts, rather than on the contacts between the defendant and the State in which the federal court sits.”). ↑
  7. See Double Eagle Energy Servs., L.L.C. v. MarkWest Utica EMG, L.L.C., 936 F.3d 260, 264 (5th Cir. 2019); Livnat v. Palestinian Auth., 851 F.3d 45, 54 (D.C. Cir. 2017); Xilinx, Inc. v. Papst Licensing GmbH & Co. KG, 848 F.3d 1346, 1352–53, 1353 n.2 (Fed. Cir. 2017); Waldman v. Palestine Liberation Org., 835 F.3d 317, 330–31 (2d Cir. 2016), motion to recall the mandate denied, 925 F.3d 570 (2d Cir. 2019), vacated and remanded sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020); Trs. of the Plumbers & Pipefitters Nat’l Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 443–44 (4th Cir. 2015); Klein v. Cornelius, 786 F.3d 1310, 1318 (10th Cir. 2015); KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 731 (7th Cir. 2013); Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004); Pinker v. Roche Holdings Ltd., 292 F.3d 361, 370–71, 370 n.2 (3d Cir. 2002); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001); Med. Mut. of Ohio v. deSoto, 245 F.3d 561, 567–68 (6th Cir. 2001); In re Fed. Fountain, Inc., 165 F.3d 600, 601–02 (8th Cir. 1999) (en banc); Republic of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 946–47 (11th Cir. 1997); accord Brief for the United States as Amicus Curiae at 15 & n.3, Sokolow v. Palestine Liberation Org., 138 S. Ct. 1438 (2018) (No. 16-1071). ↑
  8. See, e.g., 4 Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and Procedure § 1068.1, at 694–95, 695 n.10 (4th ed. 2015); Chimène I. Keitner, Personal Jurisdiction and Fifth Amendment Due Process Revisited, in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law 231, 248 (Paul B. Stephan & Sarah H. Cleveland eds., 2020); William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, 116 Mich. L. Rev. 1205, 1210 (2018) (noting that “[o]ther authors have advocated a national-contacts approach in various contexts, including . . . under the Fifth but not the Fourteenth Amendment,” and collecting citations); Allan Erbsen, Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather than Liberty After Walden v. Fiore, 19 Lewis & Clark L. Rev. 769, 776 (2015); Leslie M. Kelleher, Amenability to Jurisdiction as a “Substantive Right”: The Invalidity of Rule 4(k) Under the Rules Enabling Act, 75 Ind. L.J. 1191, 1216 (2000) (describing it as “generally . . . accepted” that the Fifth Amendment “requires sufficient affiliating contacts with the nation as a whole, rather than just the forum state”); Jonathan Remy Nash, National Personal Jurisdiction, 68 Emory L.J. 509, 523–24 (2019). ↑
  9. 19 F. Cas. 609 (C.C.D. Mass. 1828) (No. 11,134). ↑
  10. 95 U.S. 714, 724 (1878); see also, e.g., Toland v. Sprague, 37 U.S. (12 Pet.) 300, 328 (1838) (endorsing Picquet’s reasoning); Warren Mfg. Co. v. Etna Ins. Co., 29 F. Cas. 294, 298 n.4 (C.C.D. Conn. 1837) (No. 17,206) (citing Picquet) (date ascribed in Gerard Carl Henderson, The Position of Foreign Corporations in American Constitutional Law 81 n.1 (1918)); Dearing v. Bank of Charleston, 5 Ga. 497, 515 (1848) (citing Picquet); Steel v. Smith, 7 Watts & Serg. 447, 450 (Pa. 1844) (same). ↑
  11. 19 F. Cas. at 613. ↑
  12. Id. at 614–15. ↑
  13. See Estate of Klieman v. Palestinian Auth., 923 F.3d 1115, 1118, 1128, 1131 (D.C. Cir. 2019) (applying the Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333–2334), vacated and remanded, 140 S. Ct. 2713 (2020); Livnat v. Palestinian Auth., 851 F.3d 45, 53 (D.C. Cir. 2017); Waldman v. Palestine Liberation Org., 835 F.3d 317, 335–37 (2d Cir. 2016), motion to recall the mandate denied, 925 F.3d 570 (2d Cir. 2019), vacated and remanded sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020). ↑
  14. See Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1010–11 (7th Cir. 2002). ↑
  15. See Walden v. Fiore, 571 U.S. 277, 286–89 (2014). ↑
  16. See Promoting Security and Justice for Victims of Terrorism Act of 2019, Pub. L. No. 116-94, § 903, 133 Stat. 3082, 3082–83; Anti-Terrorism Clarification Act of 2018, Pub. L. No. 115-253, § 4, 132 Stat. 3183, 3184; Klieman, 140 S. Ct. 2713; Sokolow, 140 S. Ct. 2714. ↑
  17. See Fed. R. Civ. P. 4(k). ↑
  18. See, e.g., Kelleher, supra note 7; A. Benjamin Spencer, Substance, Procedure, and the Rules Enabling Act, 66 UCLA L. Rev. 654 (2019); Patrick Woolley, Rediscovering the Limited Role of the Federal Rules in Regulating Personal Jurisdiction, 56 Hous. L. Rev. 565 (2019); accord Lumen N. Mulligan, Is Personal Jurisdiction Constitutionally Self-Enacting?, Jotwell (May 7, 2019), https://courtslaw.jotwell.com/is-personal-jurisdiction-consti­tutionally-self-enacting/ [https://perma.cc/E8G4-NVDR]. ↑
  19. See, e.g., Robert Haskell Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L.J. 1, 32–49 (1982); Edward L. Barrett, Jr., Venue and Service of Process in the Federal Courts—Suggestions for Reform, 7 Vand. L. Rev. 608, 627–35 (1954); Allan Erbsen, Impersonal Jurisdiction, 60 Emory L.J. 1, 77–84 (2010); Geoffrey C. Hazard, Jr., Interstate Venue, 74 Nw. U. L. Rev. 711, 712–13 (1979); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction To Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1123 (1966); Nash, supra note 7, at 557–61; Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, 108 Nw. U. L. Rev. 1301, 1315–46 (2014); A. Benjamin Spencer, Nationwide Personal Jurisdiction for Our Federal Courts, 87 Denv. U. L. Rev. 325, 329–34 (2010); A. Benjamin Spencer, The Territorial Reach of Federal Courts, 71 Fla. L. Rev. 979, 991–94 (2019). ↑
  20. E.g., A. Mark Weisburd, Due Process Limits on Federal Extraterritorial Legislation?, 35 Colum. J. Transnat’l L. 379, 409, 415–16, 428 (1997); Ariel Winawer, Comment, Too Far from Home: Why Daimler’s “At Home” Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-Terrorism Act Cases, 66 Emory L.J. 161, 185–87 (2016). ↑
  21. E.g., Wendy Perdue, Aliens, the Internet, and “Purposeful Availment”: A Reassessment of Fifth Amendment Limits on Personal Jurisdiction, 98 Nw. U. L. Rev. 455, 461 (2004); Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57 Va. J. Int’l L. 325, 328 & n.13 (2018); cf. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980) (discussing the role of “interstate federalism”). ↑
  22. See, e.g., Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24 U.C. Davis L. Rev. 19, 24, 43–56 (1990); Jay Conison, What Does Due Process Have To Do with Jurisdiction?, 46 Rutgers L. Rev. 1071, 1073–74, 1140–58 (1994); Geoffrey C. Hazard, Jr., A General Theory of State-Court Jurisdiction, 1965 Sup. Ct. Rev. 241, 262–81; John B. Oakley, The Pitfalls of “Hint and Run” History: A Critique of Professor Borchers’s “Limited View” of Pennoyer v. Neff, 28 U.C. Davis L. Rev. 591, 596–97, 616–746 (1995); Wendy Collins Perdue, What’s “Sovereignty” Got To Do with It? Due Process, Personal Jurisdiction, and the Supreme Court, 63 S.C. L. Rev. 729, 730–39 (2012); Martin H. Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 Nw. U. L. Rev. 1112, 1115–20 (1981); Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1273–78, 1287–1313 (2017); Roger H. Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 871–898 (1989); James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 Va. L. Rev. 169, 191–230 (2004); Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part One), 14 Creighton L. Rev. 499, 570–89 (1981) [hereinafter Whitten, Part One]; Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part Two), 14 Creighton L. Rev. 735, 768–835 (1981) [hereinafter Whitten, Part Two]. ↑
  23. As of October 3, 2020, key phrases from the opinion such as “England, or France, or Russia,” “other end of the globe,” or “proceed upon the law” yield no relevant hits in Westlaw’s Secondary Sources: Law Reviews & Journals database, aside from this author. ↑
  24. See Sachs, supra note 21, at 1269–87. ↑
  25. Pennoyer v. Neff, 95 U.S. 714, 733 (1878). ↑
  26. Rules of Decision Act, 28 U.S.C. § 1652 (2018). ↑
  27. U.S. Const. art. VI, cl. 2. ↑
  28. See id. art. I, § 8, cl. 18 (granting power “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). ↑
  29. See id. art. III, § 2, cl. 1. ↑
  30. Picquet v. Swan, 19 F. Cas. 609, 613 (C.C.D. Mass. 1828) (No. 11,134) (Story, Circuit Justice). ↑
  31. See id. at 615 (suggesting that Congress could authorize unorthodox jurisdiction predicated on service by attachment of property in the United States). ↑
  32. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 320 (1950). ↑
  33. See Bd. of Trs., Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1036 (7th Cir. 2000) (Easterbrook, J.). ↑
  34. 28 U.S.C. § 2072 (2018). ↑
  35. Cf. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 903 (2009) (Scalia, J., dissenting) (“Turn it over, and turn it over, for all is therein.” (quoting 8 The Babylonian Talmud: Seder Nezikin, Tractate Aboth 76–77 (I. Epstein ed. & trans., 1935))). ↑

The Rise and Fall of Transcendent Constitutionalism in the Civil War Era

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty.

After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the Justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.

Introduction

How did the Civil War transform American constitutionalism? Scholars have traditionally understood the Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth) as creating a new constitutional order in the United States.1 1.There is a vast literature on the Reconstruction Amendments’ transformative effect on American constitutional law, including Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014); Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (1990); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992) [hereinafter Amar, Fourteenth Amendment]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]; Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801 (2010); Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949); William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 Const. Comment. 235 (1984); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000); Mark A. Graber, Subtraction by Addition?: The Thirteenth and Fourteenth Amendments, 112 Colum. L. Rev. 1501 (2012); Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855 (2007); Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L.J. 1509 (2007); Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 Colum. L. Rev. 1697 (2012).Show More Michael McConnell pointed to the “extraordinary character of the change” wrought by the amendments,2 2.See Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1159 (1992); see also Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Comment. 115 (1994) (arguing that the retrenchment following Reconstruction should lead legal scholars to view the period as significantly less revolutionary).Show More and Bruce Ackerman maintained that the amendments signified nothing less than a national “re-founding.”3 3.2 Bruce Ackerman, We the People: Transformations 198 (1998); see also Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xix-xx (2019) (conceptualizing the Reconstruction amendments as a “second founding”); Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, 103 Colum. L. Rev. 1992, 2045 (2003) (agreeing with Ackerman that Reconstruction constituted a re-founding in favor of national power).Show More While they disagree on the precise meaning of the amendments, scholars have tended to locate the source of revolutionary change in the act of adding the new amendments to the Constitution between 1865 and 1870.4 4.Scholarship that directly locates revolutionary change within the formal amendment process includes David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995, at 154–87 (1996) (detailing the amendments to the Constitution) and John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (1994) (identifying formal amendments as the source of change in constitutional law). On the general importance of reliance on text in legal interpretation, see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (new ed. 2018).Show More

Americans who had lived through the horrors of the Civil War had a different perspective—they considered the war itself to have altered the Constitution. For them, the war had been a world-churning, paradigm-shifting event. Civil War-era lawyers conceived of the post-war amendments as memorializing or ratifying a change that had already taken place through the brutal ordeal of war. The amendment process was their attempt to capture the war’s energy and to begin to spell out its meaning, but the words did not supply that energy. Nineteenth-century Americans identified the chaotic, bloody, unruly, and unfathomable experience of the war as the catalyst, the source of constitutional change. It ruptured their world and provided a transcendent source of lawmaking. In their view, the war’s scope and its ultimate significance were not quite within the realm of human control; God and forces of destiny directed the conflict more than they did. As they put their nation back together in the war’s aftermath, nineteenth-century Americans had to try to fathom its meaning.

This Article examines contemporaries’ understanding of the war as a supernatural force that remade the fundamental law of the nation, a phenomenon that I call “transcendent constitutionalism.” I employ the term “transcendent constitutionalism” for three distinct reasons. First, I focus on informal, unwritten changes to the Constitution, which stemmed from the extraordinary power of war rather than more ordinary methods of constitutional interpretation. Here I seek to broaden our conception of the non-formal means of constitutional change, which include the political process, grassroots social movements, and even mob violence.5 5.On various mechanisms of non-formal constitutional change, see generally Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004) (detailing the interaction of legal and social factors in ending de jure segregation); Tomiko Brown-Nagin, Courage To Dissent: Atlanta and the Long History of the Civil Rights Movement (2011) (examining the role of local communities as agents of legal change within the civil rights movement); John Phillip Reid, In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution, 49 N.Y.U. L. Rev. 1043 (1974) (exploring the phenomenon of mob violence as an instrument of constitutional change in the Revolutionary period).Show More By including war within the ambit of constitutionalism, I intend to expand the scope of what we view as agents of constitutional transformation. Second, because I mean to describe the world as nineteenth-century Americans conceived of it, I have chosen not to rely on the phrases “unwritten constitutionalism” or “popular constitutionalism,” which invoke a modern view of how we understand history and extra-textual sources to have shaped our constitutional traditions.6 6.Scholars who have developed theories of how historical change shapes modern American constitutionalism include Ackerman, supra note 3; Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson ed., 1995); David A. Strauss, The Living Constitution 120–32 (2010); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001) [hereinafter Strauss, Irrelevance]. A number of scholars have also examined unwritten constitutionalism’s intersection with the original understanding of the Constitution, including Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978); Jed Rubenfeld, The New Unwritten Constitution, 51 Duke L.J. 289 (2001); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987); Lawrence B. Solum, Originalism and the Unwritten Constitution, 2013 U. Ill. L. Rev. 1935.Show More Third, I also want to convey a sense of the otherworldly or the mystical in describing this mode of thinking.7 7.Cf. Mark A. Noll, The Civil War as a Theological Crisis (2006) (discussing the theological crisis that grew out of the American Civil War); George C. Rable, God’s Almost Chosen Peoples: A Religious History of the American Civil War (2010) (discussing Americans’ understanding of the religious forces at work during the Civil War).Show More Americans focused on the war itself as a source of lawmaking, and they also considered war to be a force that was outside of human control. They were unsure about whether it could be directed. This way of understanding constitutional change may sound unfamiliar, and because none of us has lived through the world-shattering experience of the Civil War, it is difficult to comprehend the turmoil the war’s survivors experienced.

The transcendent constitutionalism that followed Union victory in the Civil War caused a number of momentous shifts in the United States, but this Article will focus on one in particular: the change wrought to nationhood and federalism.8 8.The other huge, looming issue that seemed to be settled by the war was the end of slavery in the United States.Show More Federal structure necessarily intersected with other very important issues: the war’s impact on race and slavery, and the federal government’s relationship with the citizen, particularly in terms of the rights guaranteed to individuals as a matter of federal constitutional law. In the eyes of many legal thinkers, the war had altered the nature of sovereignty in the United States. For decades, Americans had wrangled over whether sovereignty was held primarily in the states, which could exit the federal arrangement at will, or whether the people as a whole were the constituent sovereign and had created an unbreakable Union at the Founding.

The Civil War’s survivors interpreted Northern victory as a triumph over the forces of secessionist disintegration. It functioned as a confirmation (or an establishment) of the basic integrity and existence of the United States as a nation.9 9.For a discussion of this basic assumption in the scholarly literature, see Cynthia Nicoletti, The American Civil War as a Trial by Battle, 28 Law & Hist. Rev. 71, 73–74 (2010) [hereinafter Nicoletti, Trial by Battle]. For a deeper analysis of how, precisely, the war established this maxim, see id. at 76 (arguing that “American jurists and other intellectuals adopted the language of the medieval legal custom of trial by battle” as a way of rationalizing the war’s determination of secession’s illegitimacy); Spaulding, supra note 3, at 2038, 2040–42 (arguing that the war itself functioned as a mechanism of legal adjudication); Strauss, Irrelevance, supra note 6, at 1482–85 (arguing that the Reconstruction Amendments did not alter the Constitution so much as societal change did). Strauss also discusses the war’s settlement of the permanence of the Union, although he notes that no formal amendment recognized this. Id. at 1486.Show More Former Confederate Congressman Clement Clay admitted to President Andrew Johnson that:

[T]he subordination of the States & supremacy of the General Government has been established in the Court of last resort—the field of battle . . . . The established theory now is, that the citizen owes his highest & first allegiance to the Genl. Govt. Such is the fact & none should dispute it.10 10.Letter from Clement C. Clay, Jr., to Andrew Johnson (Nov. 23, 1865), in 9 Papers of Andrew Johnson 420, 421 (Paul H. Bergeron ed., 1991).Show More

The war’s energy was, however, a double-edged sword. It could forge a nation out of a number of disparate parts, but it could also, as many American lawyers feared, destroy federalism in the process, ushering in what contemporaries (and the Founders) termed “consolidation.”11 11.The Federalist No. 32, at 155 (Alexander Hamilton) (Ian Shapiro ed., 2009); id. No. 45, at 238 (James Madison).Show More The war could provide an impetus for reform. But it could also overcorrect and kill the states entirely.

The war was unlike the formal amendment process in that it was not deliberative. It was not the product of thought and consideration. Instead, it was savage and unpredictable. Once unleashed, the Civil War’s progress was a force that could not be contained by human efforts. As a result, a number of American intellectuals (lawyers, historians, political theorists, and journalists) worried that the basic federal structure of the original Constitution would be altogether lost in the aftermath of the war. Some thinkers welcomed the chaos, which could enable Americans to slough off their old, irrational attachment to the tradition of localism. Many others regarded it with dread. One lawyer compared the Civil War to “the deadly heat of fever, which consumes without remedy the vitals of the Constitution.”12 12.Charles O’Conor, Opinion, Age Has Not Softened Him Nor Taught Him Manners or Charity—He Holds that the Republic Has Been Dead Since M’Dowell Moved on Richmond, N.Y. Times, Dec. 6, 1876, at 1.Show More The war would leave America a unitary state, and it was not clear that intrepid human energy could prevent a slide into consolidation.

During Reconstruction, Congress sought to capture the transcendent energy of the war and infuse it into the written Constitution. In the process of translating the war’s energy into the written text of the Fourteenth Amendment, Congress sought to establish two principles.13 13.U.S. Const. amend. XIV.Show More First was the confirmation of the primacy of the nation rather than the states. The sovereignty of the nation was, the war made clear, derived from the people directly and not from the states as a conduit for the people. The second—the protection of civil rights—followed from the first.14 14.See infra note 183 and accompanying text.Show More As Congressional Republicans argued, the primacy of national sovereignty meant that the citizen’s principal relationship was with the national government rather than with the states. Correspondingly, the federal government was now to be the guarantor of the citizen’s rights, bound to protect citizens even against interference by their own state governments.

Questions about the war’s impact on American federalism, as partially, but not wholly, expressed in the new constitutional amendments, eventually found their way to the Supreme Court. Rereading the Court’s opinions, and particularly, the Slaughterhouse Cases,15 15.83 U.S. (16 Wall.) 36 (1873).Show More with an eye toward claims of transcendent constitutional change is revealing. In a number of cases, the Court explicitly addressed the premise that the war, rather than the ratification of the Fourteenth Amendment, had remade the vitals of the Constitution—and rejected it. Instead, the Court opted to rely on the text of the Constitution and on longstanding—and distinctly non-radical—notions of federal structure. The Court would supply the counterforce against consolidation that the most extreme post-war commentators had desired. In numerous ways, the Court took on the role of policing the boundaries of federal and state power and arresting the prospect of consolidation.

By the time of Slaughterhouse in 1873, the Court’s role in limiting the centripetal energy unleashed by the war generally met with the approval of most American legal commentators, who were anxious to find normalcy and achieve balance. As one legal commentator enthused, the Justices “all shrank from the hideous features of the apparition [of consolidation] when [the details] were fully disclosed. Not one was found willing to abolish the States . . . .”16 16.Robert Ould, The Last Three Amendments to the Federal Constitution, 2 Va. L.J. 385, 392 (1878).Show More Americans who had wearied of the war’s revolutionary spirit endorsed the Court’s rejection of transcendent constitutionalism and the radical consequences that accompanied it.

The Civil War, violent and messy, looms large in the popular understanding of how American constitutionalism has changed over time, but not in the dominant scholarly narrative, which focuses instead on the formal and intentional act of ratifying the Reconstruction Amendments. This is not to say that previous scholars have been uninterested in investigating the broader political and legal culture surrounding the adoption of the amendments,17 17.See David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888,at 400–02 (1985); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1, 1118, 1127–28, 1298–1300 (Paul A. Freund ed., 1971); Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 256–57 (1988); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution, at xv–xvi (1973); Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876, at 2, 4–6 (2005); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869, at 22–23 (1974); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 8–9 (1988); Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era, at xv–xvii (2003); Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 2–3 (2001); Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 Law & Soc. Inquiry 459, 476–78, 490 (1997) (reviewing John Niven, Salmon P. Chase: A Biography (1995)); Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 Am. Hist. Rev. 45, 48–53 (1987).Show More but they have seldom taken account of the war itself as a source of lawmaking power.18 18.There is some discussion of this topic in Spaulding, supra note 3, at 2040, and Strauss, Irrelevance, supra note 6, at 1479–80. My own work has explored it in other contexts, such as how the war settled the question of secession’s constitutionality and the availability of treason charges against the perpetrators of an unsuccessful rebellion. See Cynthia Nicoletti, Trial by Battle, supra note 9, at 74–76; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 84–86 (2017) [hereinafter Nicoletti, Secession on Trial].Show More Thinking only about the Constitution as the product of deliberate human choices by politicians and lawmakers misses a key part of Civil War-era discussion about the ways that American life—and the U.S. Constitution—could be changed.

Nineteenth-century American intellectuals understood the course of history and the abstract forces behind it in a fatalistic way that is unfamiliar to modern American legal scholars. This Article recreates a largely overlooked intellectual debate over the nature of constitutionalism in the aftermath of the Civil War by exploring a broad array of previously neglected sources that range far beyond Congress and the Supreme Court. Nineteenth-century American jurists understood the Constitution to be both the written product of formal deliberation and the result of the decidedly non-deliberative, explosive power of transcendent lawmaking. They feared that the war’s energy could destroy the states the same way it had destroyed secession, thus resulting in the total annihilation of American federalism. Reconstructing the Union after the Civil War involved a more difficult task than scholars have previously realized, because of the ease of veering, without conscious choice, into consolidation.

I seek to situate the Supreme Court’s much maligned Slaughterhouse Cases against this larger intellectual backdrop and thus offer a way to make sense of the Court’s seemingly indefensible decision to twist the language of the Privileges or Immunities Clause beyond recognition.19 19.See infra notes 283–88 and accompanying text on Slaughterhouse’s poor reputation among jurists and academics.Show More Although Slaughterhouse itself did not undercut the federal government’s role in securing racial equality in the United States, the decision signaled the Supreme Court’s subsequent unwillingness to invalidate schemes of racial discrimination in the United States until the mid-twentieth century. In cases like Cruikshank v. United States and the Civil Rights Cases, the Court built on Slaughterhouse’s firm distinction between the state and federal aspects of citizenship in crafting the state action doctrine, which put most forms of racial discrimination beyond the reach of federal regulatory power.20 20.See infra Section III.C for more on the connection between Slaughterhouse and later cases undercutting the federal government’s power in the realm of civil rights, based on an expansive reading of the state action doctrine.Show More

Certainly the criticism Slaughterhouse has received for both its shaky logic and the limitations it imposed on federal power has been well deserved, but scholars have also missed a crucial aspect of what the Slaughterhouse Court sought to achieve in the aftermath of the Civil War. Slaughterhouse reflected the fact that white northerners, including the elites in the legal community, were increasingly uninterested in using federal power to protect Black Americans from violence and discrimination.21 21.This Article focuses on the views of lawyers, judges, legislators, and other public commentators on constitutional law in the aftermath of the Civil War, which necessarily means that it channels the voices of the elite class. For more on the historical exclusiveness of the American bar in both racial and class terms, see Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer 12–26 (2012) (discussing Black lawyers in the nineteenth century) and Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers, 1870–1910, in The New High Priests: Lawyers in Post-Civil War America 51, 51–74 (Gerard W. Gawalt ed., 1984) (discussing class prejudice in the elite legal profession of the late nineteenth century).There is a large literature on the racial motivations and implications of the Reconstruction-era Supreme Court’s decisions. See, e.g., Eric Foner, supra note 17, at 530, and Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 Sup. Ct. Rev. 39, 60–62 [hereinafter Benedict, Preserving Federalism] (both highlighting the Supreme Court’s crucial role in limiting the federal government’s power to address racial inequality in the post-Reconstruction United States).Show More But the widespread acclaim with which the mainstream legal community greeted the decision in the 1870s and 1880s was also the product of another aspect of post-war national conservatism.22 22.Bryan H. Wildenthal’s article, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867–1873, 18 J. Contemp. Legal Issues 153, 221–29 (2009), comes the closest to examining public discussion around the Fourteenth Amendment, but ends in 1873 with the Slaughterhouse decision. See infra notes 283–346 and accompanying text for discussion of reactions to Slaughterhouse.Show More As Reconstruction waned, the American legal community sought to shrug off the explosive potential of transcendent constitutionalism along with the radical promise of racial egalitarianism that had seemed possible at the moment of Union victory in the Civil War.

The Article proceeds in four parts. Part I begins by reconstructing nineteenth-century Americans’ conception of war as a means of constitutional change and their understanding of the effect that Union victory would have on the American federal arrangement. American intellectuals were conflicted about the legitimacy of using violence as a source of law, but they nonetheless recognized the explosive power of the Civil War to reshape the course of history. They were also unsure about what the war’s ultimate significance might be. They feared that the nationalism unleashed by the war would result in consolidation—or the complete eradication of federalism in favor of a unitary state.

Part II discusses the relationship between ideas about transcendent constitutionalism, fashioned by the war itself, and the formal changes to the Constitution through the ratification of the Fourteenth Amendment. In debating the Amendment and the Civil Rights Bill in 1866, congressmen consistently revealed that they understood the Civil War to have altered the national arrangement in fundamental ways. The new Fourteenth Amendment sought to capture that change by memorializing the primacy of national sovereignty. In addition, Congress connected the Amendment’s protections for individual rights, along with the federal power to protect those rights from state incursion, to the new conception of national sovereignty. This understanding was informed by natural law.

The Supreme Court’s role in checking the excesses baked into concepts of transcendent constitutionalism is explored in Part III. The danger of consolidation loomed large, and the Supreme Court saw its role as policing the balance between federal and state power, a necessary function in the post-war period. The most notable decision in this regard was the (now) much-maligned Slaughterhouse Cases, in which the Court indicated its willingness to cut down on the radical centralizing potential of the Fourteenth Amendment.

Finally, Part IV explores reactions to the Supreme Court’s post-war federalism jurisprudence, and particularly, the Slaughterhouse Cases. For the most part, commentators welcomed the Supreme Court’s influence in preventing consolidation and checking the federal government’s authority. The wider American legal community saw the Court’s actions as returning American constitutionalism back to its ordinary state.

  1. * Class of 1966 Research Professor of Law, University of Virginia School of Law. I thank Charles Barzun, Will Baude, Molly Brady, John Duffy, Risa Goluboff, Jessica Lowe, Ruth Mason, Charles McCurdy, and George Rutherglen for discussing the ideas in this Article and for comments on previous drafts. I also thank Wilson Miller and Daniele Celano for excellent research assistance and helpful comments along the way. ↑
  2. There is a vast literature on the Reconstruction Amendments’ transformative effect on American constitutional law, including Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014); Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (1990); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992) [hereinafter Amar, Fourteenth Amendment]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]; Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801 (2010); Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949); William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 Const. Comment. 235 (1984); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000); Mark A. Graber, Subtraction by Addition?: The Thirteenth and Fourteenth Amendments, 112 Colum. L. Rev. 1501 (2012); Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855 (2007); Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L.J. 1509 (2007); Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 Colum. L. Rev. 1697 (2012). ↑
  3. See Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1159 (1992); see also Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Comment. 115 (1994) (arguing that the retrenchment following Reconstruction should lead legal scholars to view the period as significantly less revolutionary). ↑
  4. 2 Bruce Ackerman, We the People: Transformations 198 (1998); see also Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xix-xx (2019) (conceptualizing the Reconstruction amendments as a “second founding”); Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, 103 Colum. L. Rev. 1992, 2045 (2003) (agreeing with Ackerman that Reconstruction constituted a re-founding in favor of national power). ↑
  5. Scholarship that directly locates revolutionary change within the formal amendment process includes David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995, at 154–87 (1996) (detailing the amendments to the Constitution) and John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (1994) (identifying formal amendments as the source of change in constitutional law). On the general importance of reliance on text in legal interpretation, see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (new ed. 2018). ↑
  6. On various mechanisms of non-formal constitutional change, see generally Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004) (detailing the interaction of legal and social factors in ending de jure segregation); Tomiko Brown-Nagin, Courage To Dissent: Atlanta and the Long History of the Civil Rights Movement (2011) (examining the role of local communities as agents of legal change within the civil rights movement); John Phillip Reid, In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution, 49 N.Y.U. L. Rev. 1043 (1974) (exploring the phenomenon of mob violence as an instrument of constitutional change in the Revolutionary period). ↑
  7. Scholars who have developed theories of how historical change shapes modern American constitutionalism include Ackerman, supra note 3; Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson ed., 1995); David A. Strauss, The Living Constitution 120–32 (2010); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001) [hereinafter Strauss, Irrelevance]. A number of scholars have also examined unwritten constitutionalism’s intersection with the original understanding of the Constitution, including Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978); Jed Rubenfeld, The New Unwritten Constitution, 51 Duke L.J. 289 (2001); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987); Lawrence B. Solum, Originalism and the Unwritten Constitution, 2013 U. Ill. L. Rev. 1935. ↑
  8. Cf. Mark A. Noll, The Civil War as a Theological Crisis (2006) (discussing the theological crisis that grew out of the American Civil War); George C. Rable, God’s Almost Chosen Peoples: A Religious History of the American Civil War (2010) (discussing Americans’ understanding of the religious forces at work during the Civil War). ↑
  9. The other huge, looming issue that seemed to be settled by the war was the end of slavery in the United States. ↑
  10. For a discussion of this basic assumption in the scholarly literature, see Cynthia Nicoletti, The American Civil War as a Trial by Battle, 28 Law & Hist. Rev. 71, 73–74 (2010) [hereinafter Nicoletti, Trial by Battle]. For a deeper analysis of how, precisely, the war established this maxim, see id. at 76 (arguing that “American jurists and other intellectuals adopted the language of the medieval legal custom of trial by battle” as a way of rationalizing the war’s determination of secession’s illegitimacy); Spaulding, supra note 3, at 2038, 2040–42 (arguing that the war itself functioned as a mechanism of legal adjudication); Strauss, Irrelevance, supra note 6, at 1482–85 (arguing that the Reconstruction Amendments did not alter the Constitution so much as societal change did). Strauss also discusses the war’s settlement of the permanence of the Union, although he notes that no formal amendment recognized this. Id. at 1486. ↑
  11. Letter from Clement C. Clay, Jr., to Andrew Johnson (Nov. 23, 1865), in 9 Papers of Andrew Johnson 420, 421 (Paul H. Bergeron ed., 1991). ↑
  12. The Federalist No. 32, at 155 (Alexander Hamilton) (Ian Shapiro ed., 2009); id. No. 45, at 238 (James Madison). ↑
  13. Charles O’Conor, Opinion, Age Has Not Softened Him Nor Taught Him Manners or Charity—He Holds that the Republic Has Been Dead Since M’Dowell Moved on Richmond, N.Y. Times, Dec. 6, 1876, at 1. ↑
  14. U.S. Const. amend. XIV. ↑
  15. See infra note 183 and accompanying text. ↑
  16. 83 U.S. (16 Wall.) 36 (1873). ↑
  17. Robert Ould, The Last Three Amendments to the Federal Constitution, 2 Va. L.J. 385, 392 (1878). ↑
  18. See David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888, at 400–02 (1985); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1, 1118, 1127–28, 1298–1300 (Paul A. Freund ed., 1971); Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 256–57 (1988); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution, at xv–xvi (1973); Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876, at 2, 4–6 (2005); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869, at 22–23 (1974); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 8–9 (1988); Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era, at xv–xvii (2003); Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 2–3 (2001); Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 Law & Soc. Inquiry 459, 476–78, 490 (1997) (reviewing John Niven, Salmon P. Chase: A Biography (1995)); Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 Am. Hist. Rev. 45, 48–53 (1987). ↑
  19. There is some discussion of this topic in Spaulding, supra note 3, at 2040, and Strauss, Irrelevance, supra note 6, at 1479–80. My own work has explored it in other contexts, such as how the war settled the question of secession’s constitutionality and the availability of treason charges against the perpetrators of an unsuccessful rebellion. See Cynthia Nicoletti, Trial by Battle, supra note 9, at 74–76; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 84–86 (2017) [hereinafter Nicoletti, Secession on Trial]. ↑
  20. See infra notes 283–88 and accompanying text on Slaughterhouse’s poor reputation among jurists and academics. ↑
  21. See infra Section III.C for more on the connection between Slaughterhouse and later cases undercutting the federal government’s power in the realm of civil rights, based on an expansive reading of the state action doctrine. ↑
  22. This Article focuses on the views of lawyers, judges, legislators, and other public commentators on constitutional law in the aftermath of the Civil War, which necessarily means that it channels the voices of the elite class. For more on the historical exclusiveness of the American bar in both racial and class terms, see Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer 12–26 (2012) (discussing Black lawyers in the nineteenth century) and Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers, 1870–1910, in The New High Priests: Lawyers in Post-Civil War America 51, 51–74 (Gerard W. Gawalt ed., 1984) (discussing class prejudice in the elite legal profession of the late nineteenth century).

    There is a large literature on the racial motivations and implications of the Reconstruction-era Supreme Court’s decisions. See, e.g., Eric Foner, supra note 17, at 530, and Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 Sup. Ct. Rev. 39, 60–62 [hereinafter Benedict, Preserving Federalism] (both highlighting the Supreme Court’s crucial role in limiting the federal government’s power to address racial inequality in the post-Reconstruction United States). ↑

  23. Bryan H. Wildenthal’s article, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867–1873, 18 J. Contemp. Legal Issues 153, 221–29 (2009), comes the closest to examining public discussion around the Fourteenth Amendment, but ends in 1873 with the Slaughterhouse decision. See infra notes 283–346 and accompanying text for discussion of reactions to Slaughterhouse. ↑
©Virginia Law Review Association. All rights reserved.