Amicus Curiae Brief — CC/Devas (Mauritius) Limited, et al., Petitioners v. Antrix Corp. Ltd., et al.

Supreme Court briefDec 11, 2024

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Nos. 23-1201 & 24-17

IN THE

Supreme Court of the United States

————

CC/DEVAS (MAURITIUS) LIMITED, et al.,

Petitioners,

ANTRIX CORP. LTD., et al.,

Respondents.

————

DEVAS MULTIMEDIA PRIVATE LIMITED,

Petitioner,

ANTRIX CORP. LTD., et al.,

Respondents.

————

On Writs of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF AMICI CURIAE OF THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA AND THE AMERICAN PETROLEUM

INSTITUTE IN SUPPORT OF PETITIONERS

————

JENNIFER B. DICKEY

JONATHAN D. URICK

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

PETER B. RUTLEDGE

Counsel of Record

HILLARY K. LUKACS

MORRIS MANNING &

MARTIN, L.L.P.

1600 Atlanta Financial Center

3343 Peachtree Road, NE

Counsel for the Chamber of Atlanta, GA 30326-1044

Commerce of the United (404) 233-7000

brutledge@mmmlaw.com

States of America

Counsel for Amici Curiae

[Additional Counsel Listed On Inside Cover]

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

RYAN P. MEYERS

JOHN P. WAGNER

AMERICAN PETROLEUM INSTITUTE

200 Massachusetts Avenue, NW

Washington, D.C. 20001

(202) 682-8000

MeyersR@api.org

Counsel for the American Petroleum Institute

December 11, 2024

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

INTEREST OF THE AMICI CURIAE................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. FOREIGN STATES AND THEIR ALTER

EGO CORPORATIONS ARE NOT ENTITLED TO THE PROTECTIONS OF THE

FIFTH AMENDMENT BECAUSE THEY

ARE NOT “PERSONS.” ............................

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Abelesz v. Magyar Nemzeti Bank,

692 F.3d 661 (7th Cir. 2012) ....................

Alden v. Maine,

527 U.S. 706 (1999) ...................................

Alfred L. Snapp & Son, Inc. v.

Puerto Rico ex rel. Barez,

458 U.S. 592 (1982) ..................................

Animal Science Prods., Inc. v. Hebei

Welcome Pharmaceutical Co., Ltd.,

585 U.S. 33 (2018) .....................................

Asahi Metal Indus. Co. v.

Superior Court of California,

480 U.S. 102 (1987) ...................................

Baker v. Carr,

369 U.S. 186 (1962) ...................................

Baltimore & Ohio R.R. Co. v. Harris,

79 U.S. (12 Wall.) 65 (1870)......................

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ...................................

Bank of Augusta v. Earle,

38 U.S. (13 Pet.) 519 (1839) ......................

Barron v. Baltimore,

32 U.S. (7 Pet.) 243 (1833) .......................

BNSF Ry. Co. v. Tyrrell,

581 U.S. 402 (2017) ...................................

Bolivarian Republic of Venezuela v.

Helmerich & Payne Int'l Drilling Co.,

581 U.S. 170 (2017) ...................................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Bristol-Myers Squibb Co. v.

Superior Court of California,

582 U.S. 255 (2017) ...................................

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) ...................................

Burnham v. Superior Court of California,

495 U.S. 604 (1990) ...................................

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ...................................

Chisholm v. Georgia,

2 U.S. 419 (1793) ......................................

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ................................... 17, 25

Commonwealth of Massachusetts v. Mellon,

262 U.S. 447 (1923) ................................... 18-19

County of Sacramento v. Lewis,

523 U.S. 833 (1998) ...................................

Creighton Ltd. v. Gov’t of State of Qatar,

181 F.3d 118 (D.C. Cir. 1999) ...................

Daimler AG v. Bauman,

571 U.S. 117 (2014) ...................................

District of Columbia v. Heller,

554 U.S. 570 (2008) ...................................

5, 8

Douglass v. Nippon Yusen Kabushiki Kaisha,

46 F.4th 226 (5th Cir. 2022) .....................

Ex parte Republic of Peru,

318 U.S. 578 (1943) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Ex parte Schollenberger,

96 U.S. 369 (1877) .....................................

First Inv. Corp. of Marshall Islands v.

Fujian Mawei Shipbuilding, Ltd.,

703 F.3d 742 (5th Cir. 2012).....................

Flower v. Parker,

9 F. Cas. 323 (C.C.D. Mass. 1823) ............

Ford Motor Co. v. Montana Eighth

Judicial District Court,

592 U.S. 351 (2021) ...................................

Frontera Resources Azerbaijan Corp. v.

State Oil Co. of Azerbaijan,

582 F.3d 393 (2d Cir. 2009) ................... 4, 20-22

Gamble v. United States,

587 U.S. 678 (2019) ...................................

4-5

Gater Assets Ltd. v. AO Moldovagaz,

2 F.4th 42 (2d Cir. 2021)........................... 20-21

Georgia v. Tennessee Copper Co.,

206 U.S. 230 (1907) ...................................

Goodyear Dunlop Tires Operations, S.A. v.

Brown,

564 U.S. 915 (2011) ...................................

GSS Group Ltd. v. National Port Authority,

680 F.3d 805 (D.C. Cir. 2012) ................... 4, 21

Hans v. Louisiana,

134 U.S. 1 (1890) .......................................

Hartford Fire Ins. Co. v. California,

509 U.S. 764 (1993) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Helicopteros Nacionales de Colombia, S.A.

v. Hall,

466 U.S. 408 (1984) ...................................

Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee,

456 U.S. 694 (1982) ...................................

Int’l Primate Protection Leage v. Administrators

of Tulane Educational Fund,

500 U.S. 72 (1991) .....................................

Int’l Shoe Co. v. State of Washington,

326 U.S. 310 (1945) ...................................

J. McIntyre Machinery, Ltd. v. Nicastro,

564 U.S. 873 (2011) ................................... 1, 16

Jesner v. Arab Bank, PLC,

584 U.S. 241 (2018) ..................................

1-2

Keeton v. Hustler Mag., Inc.,

465 U.S. 770 (1984) ...................................

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) ...................................

Lafayette Ins. Co. v. French,

59 U.S. (18 How.) 404 (1855) ....................

Mallory v. Norfolk Southern Ry. Co.,

600 U.S. 122 (2023) ...................................

Massachusetts v. E.P.A.,

549 U.S. 497 (2007) ...................................

McGee v. Int’l Life Ins. Co.,

355 U.S. 220 (1957) ..................................

TABLE OF AUTHORITIES—Continued

Page(s)

Milliken v. Meyer,

311 U.S. 457 (1940) ...................................

Murray’s Lessee v. Hoboken Land &

Improvement Co.,

59 U.S. (18 How.) 272 (1855) ....................

Old Wayne Mut. Life Ass’n v. McDonough,

204 U.S. 8 (1907) .......................................

Pembina Consol. Silver Mining & Milling Co.

v. Pennsylvania,

125 U.S. 181 (1888) ...................................

Pennoyer v. Neff,

95 U.S. 714 (1878) ............................... 10, 14-15

Perkins v. Benguet Consolidated Mining Co.,

342 U.S. 437 (1952) ...................................

Petrol Shipping Corp. v. Kingdom of Greece,

360 F.2d 103 (2d Cir. 1966) ...................... 21-22

Pfizer, Inc. v. Gov’t of India,

434 U.S. 308 (1978) ................................... 12-13

Price v. Socialist People’s Libyan

Arab Jamahiriya,

294 F.3d 82 (D.C. Cir. 2002) ....... 3, 19-21, 23-25

Principality of Monaco v. State of Mississippi,

292 U.S. 313 (1934) ................................... 6, 19

Providence Bank v. Billings,

29 U.S. 514 (1830) .....................................

Purdy Co. v. Argentina,

333 F.2d 95 (7th Cir. 1964).......................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Railroad Tax Cases,

13 F. 722, 744 (C.C.D. Cal. 1882) .............

Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) .................................. 14, 20

Republic of Austria v. Altmann,

541 U.S. 677 (2004) ................................... 12, 24

Rose v. Himely,

8 U.S. (4 Cranch) 241 (1808) ....................

S & Davis Int’l, Inc. v. The Republic of

Yemen,

218 F.3d 1292 (11th Cir. 2000) .................

The Santissima Trinidad,

20 U.S. 283 (1822) .....................................

Santovincenzo v. Egan,

284 U.S. 30 (1931) .....................................

Schooner Exchange v. McFaddon,

11 U.S. (7 Cranch) 116 (1812) ............. 11-12, 23

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996) .....................................

Simon v. S. Ry. Co.,

236 U.S. 115 (1915) ................................... 14-15

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ................................... 2, 24

South Carolina v. Katzenbach,

383 U.S. 301 (1966) .......................... 7, 14, 19-20

St. Clair v. Cox,

106 U.S. 350 (1882) ...................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Texas Trading & Mill. Corp. v. Fed.

Republic of Nigeria,

647 F.2d 300 (2d Cir. 1981) ...................... 21-22

TMR Energy v. State Property Fund of

Ukraine,

411 F.3d 296 (D.C. Cir. 2005) ................... 4, 21

Town of Milton, Massachusetts v.

Fed. Aviation Admin.,

87 F.4th 91 (1st Cir. 2023)........................

United States v. Rahimi,

602 U.S. 680 (2024) ................................... 5-6, 8

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) ...................................

Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480 (1983) ............................... 9, 12, 24

Washington v. Glucksberg,

521 U.S. 702 (1997) ...................................

World-Wide Volkswagen Corp. v. Woodson,

444 U. S. 286 (1980) ..................................

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 8 ....................................

U.S. Const. art. I, § 9 ....................................

U.S. Const. art. I, § 10 .................................. 5, 20

U.S. Const. art. III, § 2 ................................ 5-6, 18

U.S. Const. art. IV, § 1 .................................

U.S. Const. art. IV, § 4 .................................

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const. art. VI, cl. 2 ...............................

U.S. Const. amend. V ...................................

U.S. Const. amend. XI .................................. 6, 18

U.S. Const. amend. XIV ...............................

STATUTES

Act of May 26, 1790, Ch. 11, 1 Stat. 122 .....

OTHER AUTHORITIES

Gary B. Born & Peter B. Rutledge,

International Civil Litigation in United

States Courts (7th ed. 2023) ................ 10-11, 25

Donald Earl Childress III, Questioning the

Constitutional Rights of Foreign Nations,

88 Fordham L. Rev. Online 60 (2019) ...... 13, 19

Lori Fisler Damrosch, Foreign States and

the Constitution, 73 Va. L. Rev. 483

(1987) .................................................... 19-20, 23

William S. Dodge, International Comity in

American Law, 115 Colum. L. Rev. 271

(2015) ........................................................ 24-25

The Federalist No. 81 (Alexander Hamilton) ..

Kent Greenfield, In Defense of Corporate

Persons, 30 Const. Comment. 309 (2015).....

Robert H. Jackson, Full Faith and Credit:

The Lawyer’s Clause of the Constitution,

45 Colum. L. Rev. 1 (1945) .......................

TABLE OF AUTHORITIES—Continued

Page(s)

Joseph J. Kalo, Jurisdiction as an Evolutionary Process: The Development of

Quasi in Rem and in Personam

Principles, 1978 Duke L.J. 1147 ..............

Restatement (Fourth) Foreign Relations Law

of the United States (2018).......................

Max Rheinstein, The Constitutional Bases

of Jurisdiction, 22 U. Chi. L. Rev. 775

(1955) .........................................................

Stephen E. Sachs, Pennoyer Was Right, 95

Tex. L. Rev. 1249 (2017) ...........................

David P. Stewart, A Commentary on Ingrid

Wuerth’s the Due Process and Other

Constitutional Rights of Foreign Nations,

88 Fordham L. Rev. Online 102 (2019) ....

Joseph Story, Commentary on the Conflicts

of Laws (4th ed. 1852)............................... 10-11

E. de Vattel, The Law of Nations or the

Principles of Natural Law: Applied to the

Conduct and to the Affairs of Nations and

of Sovereigns,(Charles G. Fenwick trans.,

Carnegie Institution of Washinton 1916)

(1758) ........................................................ 7, 11

Ingrid Wuerth, The Due Process and Other

Constitutional Rights of Foreign Nations,

88 Fordham L. Rev. 633 (2019) ................

INTEREST OF THE AMICI CURIAE 1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. The Chamber represents approximately

300,000 direct members and indirectly represents the

interests of more than three million companies and

professional organizations of every size, in every

industry sector, and from every region of the country.

An important function of the Chamber is to represent

the interests of its members in matters before Congress,

the Executive Branch, and the courts.

The American Petroleum Institute (“API”) is a national

trade association that represents all segments of

America’s natural gas and oil industry. API supports

more than 11 million U.S. jobs and is backed by a

growing grassroots movement of millions of Americans.

API’s nearly 600 members produce, process, and

distribute most of the Nation’s energy, and participate

in API Energy Excellence, which is accelerating

environmental and safety progress by fostering new

technologies and transparent reporting.

Amici have participated in many cases addressing

the constitutional limits on a court’s exercise of

personal jurisdiction and the impact of foreign policy

and foreign state action on the Nation’s business

community. Such cases include, J. McIntyre Machinery,

Ltd. v. Nicastro, 564 U.S. 873 (2011), and Animal

Science Prods., Inc. v. Hebei Welcome Pharmaceutical

Co., Ltd., 585 U.S. 33 (2018), in which the Chamber

filed amicus briefs, as well as, Jesner v. Arab Bank,

No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amici, their members, or

their counsel, made any monetary contribution intended to fund

the preparation or submission of this brief.

PLC, 584 U.S. 241, 242, (2018), Kiobel v. Royal Dutch

Petroleum Co., 569 U.S. 108, 109 (2013), and Sosa v.

Alvarez-Machain, 542 U.S. 692, 699 (2004), in which

the Chamber and API filed joint amici briefs.

Amici have a unique perspective and a strong

interest in the issues presented by these cases. American

businesses rely on predictable rules governing personal

jurisdiction. Those rules provide American businesses

essential guidance about where disputes can be heard,

whether in matters where American businesses are

seeking relief or are named as defendants. Those rules

are especially important in cases involving foreign

sovereigns where considerations of immunity and

jurisdiction can affect the choice of forums in which

American businesses are able to obtain effective remedies.

SUMMARY OF ARGUMENT

These cases present both statutory and constitutional questions.

Petitioners’ briefs explore the

statutory questions. This brief trains on the lurking

constitutional questions and explains why foreign

states—and their alter ego corporations—are not

“persons” entitled to the protections of the Due Process

Clause of the Fifth Amendment. Three reasons

support this conclusion.

First, as a textual matter, the Constitution uses both

“persons” and “foreign states” in different provisions,

and those uses would make little sense if “persons”

were interpreted to include foreign states.

Second, as an historical matter, the record around

ratification of the Fifth Amendment nowhere suggests

that the Framers intended to extend the guarantees of

the Due Process Clause to foreign states. To state the

obvious, the persons ratifying the Constitution and its

Bill of Rights were not focused on ensuring the rights

of foreign states. And the treatment of foreign states

in United States Courts was already recognized as

governed by the law of nations (insofar as federal

common law incorporated it). Thus, in the U.S. scheme,

the historical immunity enjoyed by foreign sovereigns

ultimately was a matter of grace from the political

branches entrusted with decisions about the Nation’s

foreign relations.

Finally, precedent discussing the purposes of the

Due Process Clause confirms what the text and history

suggest: constitutional limits on the exercise of personal

jurisdiction were never understood or intended to protect

foreign sovereign governments or their alter egos.

Instead, immunity doctrines offer a primary means for

ensuring respectful consideration of the foreign affairs

implications of any exercise of personal jurisdiction

over foreign sovereigns. These doctrines and others

(like case-specific deference) appropriately afford the

political branches, entrusted with the management of

the Nation’s foreign relations, the opportunity to opine

on a particular case’s implications for those relations.

In short, the D.C. Circuit was exactly right when it

unanimously concluded in its authoritative review of

the issue: “Neither the text of the Constitution,

Supreme Court decisions construing the Due Process

Clause, nor long standing tradition provide a basis for

extending the reach of this constitutional provision for

the benefit of foreign states.” Price v. Socialist People’s

Libyan Arab Jamahiriya, 294 F.3d 82, 99 (D.C. Cir.

2002). See also Pet. App. 62a (“As a matter of original

meaning and modern precedent, the Fifth Amendment’s

Due Process Clause does not extend the benefit of

minimum contacts to foreign states.”) (Bumatay, J.,

dissenting) (objecting to denial of rehearing en banc)).

For the reasons explained here and in Petitioners’

briefs, no minimum contacts analysis is necessary to

exercise personal jurisdiction over an alter ego of a

foreign state.

ARGUMENT

I. FOREIGN STATES AND THEIR ALTER

EGO CORPORATIONS ARE NOT ENTITLED

TO THE PROTECTIONS OF THE FIFTH

AMENDMENT BECAUSE THEY ARE NOT

“PERSONS.”

Lurking in the background of the Ninth Circuit’s

interpretation of the Foreign Sovereign Immunities

Act (“FSIA”) is a constitutional question—whether the

Due Process Clause requires a showing of minimum

contacts to exercise personal jurisdiction over foreign

states and/or their alter ego corporations. The answer

to that question is no: Foreign states are not persons

entitled to the protections of the Due Process Clause

of the Fifth Amendment. 2 Considerations of text,

history, and precedent all support this conclusion.

Text. This Court routinely has emphasized that, in

matters of constitutional interpretation, text supplies

the starting point. See, e.g., Gamble v. United States,

Amici agree with Petitioners that this Court takes the case

on the premise that Respondent Antrix Corp. Ltd. is the alter ego

of the foreign sovereign because the question was not addressed

by the Ninth Circuit on appeal. Pet. App. 8a. Thus, these cases

do not require this Court to decide whether the protections of the

Due Process Clause extend to juridically separate “agencies or

instrumentalities” falling within the FSIA, see GSS Group Ltd. v.

National Port Authority, 680 F.3d 805 (D.C. Cir. 2012), or to

evaluate the proper test for deciding whether, as a constitutional

matter, a juridical entity is separate from the foreign sovereign,

see Frontera Resources Azerbaijan Corp. v. State Oil Co. of

Azerbaijan, 582 F.3d 393 (2d Cir. 2009); TMR Energy v. State

Property Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005).

587 U.S. 678, 683 (2019); District of Columbia v. Heller,

554 U.S. 570, 580 (2008); United States v. VerdugoUrquidez, 494 U.S. 259, 265-66 (1990); see also United

States v. Rahimi, 602 U.S. 680, 715 (2024) (Kavanaugh,

J., concurring) (“The first and most important rule of

constitutional interpretation is to heed the text – that

is the actual words of the Constitution – and to

interpret that text according to its ordinary meaning

as originally understood.”).

While the Constitution does not define the term

“person,” the use of the term throughout the document

reveals that the Framers did not intend for it to

encompass “foreign states.” Rather, the Constitution

specifically refers to “foreign states” when addressing

their activities in the Nation’s charter. The Constitution

employs this precise term on two occasions: the

Emoluments Clause (U.S. Const. art. I, § 9) and the

constitutional grant of diversity jurisdiction (id. art.

III, § 2). On two other occasions, the Constitution uses

similar terms like “foreign nations” (id. art. I, § 8) and

“foreign Power” (id. art. I, § 10). This repeated and

deliberate use of the term “foreign state” and its

cognates reveals that, had the Framers intended for

the Fifth Amendment’s protections to extend to this

category of litigants, it would have utilized such terms

within the definition of parties protected by the Fifth

Amendment.

Article III confirms this commonsense conclusion.

Article III differentiates between “Citizens,” “States,”

and “foreign States.” Id. art. III, § 2. The juxtaposition

of the three terms lends credence to the idea that the

Framers intended to distinguish between these

“Citizens” and “foreign States” (or States of the Union).

Had the Framers intended to extend the protections of

the Due Process Clause to “foreign States,” they would

have followed the structure employed by Article III

and expressly referenced that category (along with

“persons”) among the parties entitled to the protections

set forth therein. Compare id. amend. V, with id. art.

III, § 2.

The Eleventh Amendment is similar. As this Court

has explained, this Amendment aimed to overrule this

Court’s prior decision in Chisholm v. Georgia, 2 U.S.

419 (1793), upholding the exercise of diversity

jurisdiction over a citizen-initiated lawsuit against a

State of the Union. See Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 69 (1996); Principality of Monaco

v. State of Mississippi, 292 U.S. 313, 329 (1934); Hans

v. Louisiana, 134 U.S. 1, 12 (1890). With terminology

paralleling Article III, the Eleventh Amendment again

employed the term “Foreign State” while differentiating between the “foreign states” themselves and their

“citizens” or “subjects” (who, by that Amendment’s

plain terms, could no longer commence a “controversy”

against “one of the United States” pursuant to the

constitutional authorization of diversity jurisdiction). 3

U.S. Const. amend. XI. In other words, the Eleventh

Amendment followed the Framers’ approach: when

constitutional language was meant to govern “foreign

states,” the drafters employed that term and did not

rely on more general terms (like “person” or “citizen”)

to encompass them. See Rahimi, 602 U.S. at 715

(Kavanaugh, J., concurring) (“As a general matter, the

text of the Constitution says what it means and means

what it says. And unless and until it is amended, that

text controls.”); id. at 737 (Barrett, J., concurring)

(“Ratification is a democratic act that renders constiLater, in Principality of Monaco, 292 U.S. 313, this Court

concluded principles of state sovereign immunity precluded an

action by a foreign state against a sovereign state without its consent.

tutional text part of our fundamental law, and that

text remains law until lawfully altered.” (citations and

internal quotations omitted)).

This is also consistent with ordinary usage, under

which “foreign states” would not typically be thought

of as “persons.” Cf. Int’l Primate Protection Leage v.

Administrators of Tulane Educational Fund, 500 U.S.

72, 82-83 (1991); South Carolina v. Katzenbach, 383

U.S. 301, 323-24 (1966) (“The word ‘person’ in the

context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation,

be expanded to encompass the States of the Union, and

to our knowledge this has never been done by any court.”).

Some scholarship contends otherwise. See Ingrid

Wuerth, The Due Process and Other Constitutional

Rights of Foreign Nations, 88 Fordham L. Rev. 633

(2019). Specifically, one scholar argues that foreign

states were “often” described as persons at the

Founding, citing as an example a passage from Vattel’s

leading international treatise stating that, “[t]he law

of nations is the law of sovereigns:

free and

independent states are moral persons, whose rights

and obligations we are to establish in this treatise.” E.

de Vattel, The Law of Nations or the Principles of

Natural Law: Applied to the Conduct and to the Affairs

of Nations and of Sovereigns, Bk. II, Ch.1, §12 (Charles

G. Fenwick trans., Carnegie Institution of Washington

1916) (1758) (hereinafter “Vattel, Law of Nations”).

The description of foreign states as “persons” in

certain discussions of international law does not

establish that they are “persons” under the Fifth

Amendment. When Vattel spoke of the “rights and

obligations” of foreign states (qua “moral persons”), he

was speaking specifically of their rights and

obligations under the law of nations. Foreign states

represent the agents at the plane of international law

who can enter treaties (effectively “contracts between

independent nations,” Santovincenzo v. Egan, 284 U.S.

30, 40 (1931)), and it makes sense in those circumstances that they would be referred to as persons. The

Fifth Amendment is not a discussion of international

law, and the ordinary usage therefore should prevail,

particularly where, as here, the Constitution otherwise

includes explicit references to foreign states.

In sum, a close reading of the Constitution’s text

supports the proposition that the term “person” in the

Fifth Amendment does not include “foreign states.”

History. What textual analysis suggests, historical

inquiry confirms. This Court has routinely consulted

historical sources to illuminate the meaning of constitutional terms, including the Due Process Clause.

Mallory v. Norfolk Southern Ry. Co., 600 U.S. 122, 12831 (2023) (plurality opinion); Burnham v. Supererior

Court of California, 495 U.S. 604, 609 (1990) (plurality

opinion); id. at 628 (White, J., concurring in part and

concurring in the judgment); Washington v. Glucksberg,

521 U.S. 702, 710 (1997) (“We begin, as we do in all due

process cases, by examining our Nation’s history, legal

traditions, and practices.”); Murray’s Lessee v. Hoboken

Land & Improvement Co., 59 U.S. (18 How.) 272, 277

(1855) (defining due process by “look[ing] to those

settled usages and modes of proceeding” in AngloAmerican courts). Relevant sources include preratification history, see Heller, 554 U.S. at 592, and, at

least in some instances, history in the period

immediately following ratification, Rahimi, 602 U.S.

723-29 (Kavanaugh, J., concurring); id. at 737 (Barrett,

J., concurring). Here, because the relevant language

concerns the Fifth Amendment’s Due Process Clause,

the late eighteenth and early nineteenth century

supplies the relevant reference point. 4

At the time of the Founding, the Fifth Amendment,

which applied only to the federal government, see

Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 251 (1833),

was not the focus of constitutional constraints on

the exercise of personal jurisdiction.

Instead,

constitutional constraints on the exercise of judicial

jurisdiction over nonresident defendants traced their

origins to jurisprudence interpreting the Full Faith

and Credit Clause, U.S. Const. art. IV, § 1, and the

accompanying federal legislation, Act of May 26, 1790,

Ch. 11, 1 Stat. 122. See Robert H. Jackson, Full Faith

and Credit: The Lawyer’s Clause of the Constitution, 45

Colum. L. Rev. 1, 10 (1945).

Under this jurisprudence, principles of full faith and

credit did not obligate one state to give effect to a sister

state’s judgment where the judgment-rendering court

lacked jurisdiction. In such instances, a judicial

proceeding without jurisdiction was coram non judice.

See Rose v. Himely, 8 U.S. (4 Cranch) 241, 271, 276-77

(1808). Typically, in personam jurisdiction over a nonresident defendant would be lacking absent personal

service in the forum state or the defendant’s voluntary

While these cases arise out of litigation in federal court, the

same analysis should inform litigation against foreign states in

state court. The FSIA applies in state court, Verlinden B.V. v.

Central Bank of Nigeria, 461 U.S. 480, 496 (1983), and supplies a

federal ingredient sufficient to give rise to federal question

subject-matter jurisdiction, id. at 491-97. There is no suggestion

that a different understanding prevailed at the time of

ratification of the Fourteenth Amendment and, therefore, the

term “person” in the Fourteenth Amendment’s Due Process

Clause should not be given a different construction than that

suggested here for the Fifth Amendment.

appearance. Joseph Story, Commentary on the Conflicts

of Laws § 549, at 921-22 (4th ed. 1852) (hereinafter

“Story, Conflicts”). Story described this as the known

maxim “from an international point of view” of

conflicts: “Extra territorium jus dicenti impune non

paretur … no sovereignty can extend its process beyond

its own territorial limits, to subject either persons or

property to its judicial decisions.” Id. § 539 at 905-06.

Story’s formulation reflected the territoriality principle:

a sovereign generally enjoyed unfettered authority to

exercise judicial (and prescriptive) jurisdiction within

its own territory but not beyond that territory. See

Gary B. Born & Peter B. Rutledge, International Civil

Litigation in United States Courts 91-93, 735-39 (7th

ed. 2023) (hereinafter “Born & Rutledge”). 6 These

early decisions, which supplied the intellectual foundations for this Court’s later due process jurisprudence,

see Pennoyer v. Neff, 95 U.S. 714 (1878), exclusively

concerned individual defendants, see, e.g., Flower v.

Parker, 9 F. Cas. 323 (C.C.D. Mass. 1823), and, with the

demise of the nonmigration theory in the late 1820s,

nonresident corporations and other entities, see Lafayette

Ins. Co. v. French, 59 U.S. (18 How.) 404 (1855); Bank of

Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839). See

Different rules applied in cases of in rem or quasi-in-rem

jurisdiction where the sovereign’s interest in title over property

located within its forum could justify the exercise of jurisdiction

even when the absent defendant was not personally served and

did not voluntarily appear. See Joseph J. Kalo, Jurisdiction as

an Evolutionary Process: The Development of Quasi in Rem and

in Personam Principles, 1978 Duke L.J. 1147, 1160-61.

Prescriptive (or legislative) jurisdiction concerns the power of

a state to make its law applicable to certain activities; by contrast

judicial (or adjudicatory) jurisdiction concerns the power of a

court to resolve a particular dispute. See Hartford Fire Ins. Co.

v. California, 509 U.S. 764, 812-13 (1993) (Scalia, J., dissenting).

generally Stephen E. Sachs, Pennoyer Was Right, 95

Tex. L. Rev. 1249, 1274 (2017) (collecting cases); Max

Rheinstein, The Constitutional Bases of Jurisdiction,

22 U. Chi. L. Rev. 775, 792 & n. 74 (1955) (same).

Nothing in the early history suggests a similar set of

constitutional constraints around the exercise of

judicial jurisdiction over foreign states.

This absence of constitutional protection did not,

however, leave foreign states defenseless during the

Founding Era. At the time of the Fifth Amendment’s

ratification, foreign states generally were absolutely

immune from jurisdiction in another sovereign’s courts.

See Born & Rutledge at 248. Alexander Hamilton

recognized this point in Federalist 81: “It is inherent

in the nature of sovereignty not to be amenable to the

suit of an individual WITHOUT ITS CONSENT.” The

Federalist No. 81 at 487 (Alexander Hamilton) (Clinton

Rossiter ed., 1961) (emphasis in original). While

making this point in the context of state sovereign

immunity, Hamilton drew upon international legal

principles to substantiate it. See id. (“This is the

general sense, and the general practice of mankind.”).

Prevailing treatises reflected this dominant principle.

Vattel, Law of Nations Bk. II, Ch. 3, § 35; Story,

Conflicts § 585 at 977.

This Court’s jurisprudence immediately following

the Constitution’s ratification did likewise. Especially

instructive is Chief Justice Marshall’s opinion for the

Court in Schooner Exchange v. McFaddon, 11 U.S. (7

Cranch) 116 (1812). Schooner Exchange involved a

libel against an armed ship belonging to the French

Empire driven by distress into an American port. Id.

at 118-19. American libellants laid claim to the vessel

and petitioned the Court to restore their ownership

through a proceeding in admiralty. Id. at 118-19.

Rejecting that claim, the Court explained that a public

ship of a friendly foreign state was immune from

attachment and, again invoking the territoriality principle, reasoned that “[t]he jurisdiction of the nation

within its own territorial jurisdiction is necessarily

exclusive and absolute. . . . This full and absolute

territorial jurisdiction being alike the attribute of

every sovereign. . . . would not seem to contemplate

foreign sovereigns nor their sovereign rights as its

objects.” Id. at 137. In other words, even though

sovereigns enjoyed complete authority to assert judicial

jurisdiction over persons (including individuals and

corporations) found within their territory, that

authority did not extend to “foreign sovereigns.” Id.

This absolute immunity, grounded in the law of

nations, could still be overridden by the political

branches entrusted with management of the Nation’s

foreign affairs. Schooner Exchange did not consider

the issue squarely because the Executive Branch

had appeared and argued that immunity would be

appropriate. Id. at 134. However, as this Court later

repeatedly recognized, Schooner Exchange made equally

clear that “foreign sovereign immunity is a matter of

grace and comity on the part of the United States and

not a restriction imposed by the Constitution.” Verlinden,

461 U.S. at 486; see also Republic of Austria v. Altmann,

541 U.S. 677, 688 (2004) (explaining that, under

Schooner Exchange, “foreign sovereigns have no right

to immunity in our courts”). Under Schooner Exchange,

the immunity extended only to “friendly” foreign

states, implying an authority in the political branches

to decide what foreign states qualified as “friendly”

and, thus, entitled to the immunity. See Pfizer, Inc. v.

Gov’t of India, 434 U.S. 308, 319-20 (1978) (“It has long

been established that only governments recognized by

the United States and at peace with us are entitled to

access to our courts, and that it is within the exclusive

power of the Executive Branch to determine which

nations are entitled to sue.”); Baker v. Carr, 369 U.S.

186, 212 (1962) (discussing deference to Executive

Branch determinations regarding the recognition of

foreign sovereigns).

Executive Branch recognition aside, Justice Story’s

influential decision in The Santissima Trinidad, 20

U.S. 283 (1822), rendered shortly after the ratification

of the Constitution, reaffirmed the role played by the

political branches in regulating the immunity of

foreign states from jurisdiction. The case involved a

libel action by the Consul of Spain alleging that

certain cargo had been unlawfully removed from that

ship by two armed vessels allegedly under the command

of citizens of the United States and supported by a

foreign power. In ruling on the ownership question,

the Court considered whether public ships of war are

immune from jurisdiction under the law of nations

and, if so, their cargo is as well. Seizing the

opportunity to explicate the Court’s prior decision in

Schooner Exchange, Justice Story explained that

sovereign immunity “stands upon principles of public

comity and convenience, and arises from the presumed

consent or license of nations[.]” Id. at 353. For a court

affirmatively to require the immunity over the express

objection of its own government, Justice Story

explained, “would be to give [the foreign state]

sovereign power beyond the limits of his own empire.”

Id. at 352. Precisely because such consent flows “from

the general usage of nations,” id. at 353, it can be

withdrawn by the political branches and is not

insulated from that prerogative by constitutional rule.

See Donald Earl Childress III, Questioning the

Constitutional Rights of Foreign Nations, 88 Fordham

L. Rev. Online 60, 68 (2019).

The Santissima Trinidad illustrates that principles

derived from the law of nations, such as foreign state

immunity, could be affirmatively overridden by action

by the political branches. That would not be the case

if the Constitution required a minimum contacts

analysis for suits against foreign sovereigns.

In sum, history confirms what the text suggests:

The term “person” in the Fifth Amendment was not

understood to include “foreign states.”

Precedent. This Court’s precedent, glossing the

policies underpinning the Due Process Clause, comports

with the understanding that foreign states are not

“persons” under the Fifth Amendment.

This Court made clear in Katzenbach, 383 U.S. at

323, that States of the Union are not “persons” under

the Due Process Clause. Later, the Court in Republic

of Argentina v. Weltover, Inc., strongly suggested

through dicta that the same conclusion necessarily

follows for foreign states. 504 U.S. 607, 619 (1992).

This case presents the Court with an opportunity to

convert its dicta in Weltover to doctrine, foreclosing

any argument that foreign states are “persons” under

the Fifth or Fourteenth Amendments.

This Court’s definition of “person” within the Due

Process Clause (whether the Fifth Amendment or the

Fourteenth Amendment) has consistently differentiated between individual and corporate defendants on

the one hand and sovereign defendants on the other.

While Pennoyer ushered in this Court’s era of constitutional limits on the exercise of personal jurisdiction

over nonresident defendants in a case involving an

individual, several subsequent cases during the

Pennoyer era applied its principles to juridical ones.

See Simon v. S. Ry. Co., 236 U.S. 115, 130 (1915)

(concluding court without personal jurisdiction over

railway company); Old Wayne Mut. Life Ass’n v.

McDonough, 204 U.S. 8, 21-23 (1907) (same as to outof-state mutual life insurance company); Baltimore &

Ohio R.R. Co. v. Harris, 79 U.S. (12 Wall.) 65, 69 (1870)

(upholding jurisdiction over out-of-state corporation);

St. Clair v. Cox, 106 U.S. 350, 359 (1882) (“The doctrine

of [Pennoyer] applies, in all its force, to personal

judgments of state courts against foreign corporations.”);

Ex parte Schollenberger, 96 U.S. 369, 378 (1877) (upholding jurisdiction over out-of-state insurance company).

Similarly, when International Shoe replaced the

Pennoyer standard with the modern-day “minimum

contacts” test, it applied that test to a nonresident

corporation. Int’l Shoe Co. v. State of Washington, 326

U.S. 310, 316 (1945). That landmark test requires if

the defendant “be not present within the territory of

the forum, [that] he have certain minimum contacts

with [the forum state]” such that the maintenance of

the suit does not offend ‘traditional notions of fair play

and substantial justice.’” Id. (quoting Milliken v.

Meyer, 311 U.S. 457, 463 (1940)). Accordingly, the very

foundation of the minimum contacts theory of the Due

Process Clause finds its origins in a case regarding a

nonresident corporation.

Numerous subsequent decisions have tracked

International Shoe’s implicit premise that corporations

constitute “persons” within the meaning of the Due

Process Clause, both domestic, see, e.g., Ford Motor Co.

v. Montana Eighth Judicial District Court, 592 U.S.

351, 360 (2021); Bristol-Myers Squibb Co. v. Superior

Court of California, 582 U.S. 255, 262 (2017); BNSF Ry.

Co. v. Tyrrell, 581 U.S. 402, 414 (2017); McGee v. Int’l

Life Ins. Co., 355 U.S. 220, 223 (1957); Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 476–78 (1985);

Keeton v. Hustler Mag., Inc., 465 U.S. 770, 775 (1984),

and international, see, e.g., Daimler AG v. Bauman,

571 U.S. 117, 118 (2014); Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011);

Nicastro, 564 U.S. at 887; Asahi Metal Indus. Co. v.

Superior Court of California, 480 U.S. 102, 112 (1987);

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408, 415 (1984); World-Wide Volkswagen Corp. v.

Woodson, 444 U. S. 286, 293 (1980); Perkins v. Benguet

Consol. Min. Co., 342 U.S. 437, 443 (1952).

Including corporate defendants within the meaning

of “persons” protected by the Due Process Clause

makes sense. The “core of the concept” of due process

is “to secure the individual from the arbitrary exercise

of the powers of government, unrestrained by the

established principles of private right and distributive

justice.” County of Sacramento v. Lewis, 523 U.S. 833,

845-46 (1998). The Due Process Clause therefore

“recognizes and protects an individual liberty interest.”

Ins. Corp. of Ireland v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 702 (1982). And constitutional

rights afforded to corporate entities represent an

extension of the individual liberty interests held by the

persons who comprise and control them. See Railroad

Tax Cases, 13 F. 722, 744, 747–48 (C.C.D. Cal. 1882)

(Field, J., riding circuit) (“[I]n all text writers, in all

codes, and in all revised statutes, it is laid down that

the term ‘person’ includes, or may include, corporations; which amounts to what we have already said,

that whenever it is necessary for the protection of

contract or property rights, the courts will look

through the ideal entity and name of the corporation

to the persons who compose it, and protect them,

though the process be in its name.”). As Chief Justice

Marshall observed, “[t]he great object of an incorporation

is to bestow the character and properties of individuality on a collected and changing body of men.” Providence

Bank v. Billings, 29 U.S. 514, 524 (1830), quoted in

Pembina Consol. Silver Mining & Milling Co. v.

Pennsylvania, 125 U.S. 181, 189 (1888) (“[C]orporations

are merely associations of individuals united for a

special purpose, and permitted to do business under a

particular name, and have a succession of members

without dissolution.”). And “[c]orporations, ‘separate

and apart from’ the human beings who own, run, and

are employed by them, cannot do anything at all.”

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 707

(2014).

Individuals do not surrender their liberty interests

by virtue of exercising their right to “associate [] with

other individual persons.” Citizens United v. Fed.

Election Comm’n, 558 U.S. 310, 392 (2010) (Scalia, J.,

concurring) (emphasis in original) (observing First

Amendment does not discriminate between “single

individuals to partnership of individuals, to unincorporated associations of individuals, to incorporated

associations of individuals”). Stated differently, “[t]he

association of individuals in a business corporation . .

. cannot be denied” their constitutional rights simply

because the corporation is not “an individual American[.]”

Id.; Burwell v. Hobby Lobby, 573 U.S. at 706–07 (“A

corporation is simply a form of organization used by

human beings to achieve desired ends . . . . When rights,

whether constitutional or statutory, are extended to

corporations, the purpose is to protect the rights of

these people.”). One scholar succinctly summarizes

the point:

[T]he argument that corporations should not

have standing to assert any constitutional

right is quite weak indeed. Remember, the

opposite of a constitutional right is a government power. If corporations have no rights,

then governmental power in connection with

corporations is at its maximum. That power

can be abused, and corporate personhood is a

necessary bulwark.

Kent Greenfield, In Defense of Corporate Persons, 30

Const. Comment. 309, 316 (2015) (emphasis in original).

Sovereign defendants stand on a very different

footing. They have no “owners”; they have citizens or

subjects. See U.S. Const. art. III, § 2; id. amend. XI; id.

amend. XIV. That is why the States and the United

States assert their rights to represent their citizens

under the doctrine of parens patriae rather than

through associational standing. As Justice Holmes

explained in Georgia v. Tennessee Copper Co., in “a suit

by a State for an injury to it in its capacity of quasisovereign . . . the State has an interest independent of

and behind the titles of its citizens, in all the earth and

air within its domain.” 206 U.S. 230, 237 (1907),

quoted in Massachusetts v. E.P.A., 549 U.S. 497, 518–

19 (2007); Alden v. Maine, 527 U.S. 706, 715 (1999)

(observing that in the federal system, the States “are

not relegated to the role of mere provinces or political

corporations, but retain the dignity, though not the full

authority, of sovereignty”); Alfred L. Snapp & Son, Inc.

v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)

(“One helpful indication in determining whether an

alleged injury to the health and welfare of its citizens

suffices to give the State standing to sue parens

patriae is whether the injury is one that the State, if it

could, would likely attempt to address through its

sovereign lawmaking powers.”); Commonwealth of

Massachusetts v. Mellon, 262 U.S. 447, 485 (1923)

(delineating when States of the Union versus the

United States have standing to represent American

citizens as parens patriae). See also Town of Milton,

Massachusetts v. Fed. Aviation Admin., 87 F.4th 91, 96

(1st Cir. 2023) (concluding municipality did not have

“associational standing” because it did not have

“members,” but rather, must assert the alleged interests

of its “citizens” under the doctrine of “parens patriae”).

This Court therefore correctly concluded in Katzenbach

that States of the Union do not qualify as “persons”

entitled to the protections of the Due Process Clause.

383 U.S. at 323. “The word ‘person’ in the context of the

Due Process Clause of the Fifth Amendment” the

Court said, “cannot, by any reasonable mode of

interpretation, be expanded to encompass the States

of the Union, and to our knowledge this has never been

done by any court.” Id.

Compared to States of the Union, the claims of

foreign states to qualify as “persons” are even weaker.

A foreign state “lies outside the structure of the Union”

and is “entirely alien to our constitutional system.”

Principality of Monaco, 292 U.S. at 330; Price, 294 F.3d

at 96. As some scholars surmise, foreign states interact

with the United States “as juridical equals on the level

of international law . . . with rights and duties on the

international plane not deriving from the Constitution[.]”

Lori Fisler Damrosch, Foreign States and the Constitution,

73 Va. L. Rev. 483, 521 (1987); see also Childress,

Fordham L. Rev. Online at 68 (explaining that “immunity, personal jurisdiction, notice, or due process were

not rights held by the foreign state,” but rather,

“granted, if at all, by the United States or its courts in

applying the law of nations”).

The States, by contrast “are integral and active

participants in the Constitution’s infrastructure, and

they both derive important benefits and must abide by

significant limitations as a consequence of their

participation.” Price, 294 F.3d at 96. Compare U.S.

Const. art. IV, § 4 (“The United States shall guarantee

to every State in this Union a Republican form of

Government, and shall protect each of them against

Invasion[.]”), with id. art. VI, cl. 2 (“This Constitution

... shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any

Thing in the Constitution or Law of the State to the

Contrary notwithstanding.”), and id. art. I, § 10

(listing specific acts prohibited to the States). If the

States, “who help make up the very fabric” of our

Union, “cannot avail themselves of the fundamental

safeguards of the Due Process Clause, . . . foreign

states, as sovereigns wholly outside the Union, should

[not] be in a more favorable position.” Frontera

Resources Azerbaijan Corp. v. State Oil Co. of the Azer.

Republic, 582 F.3d 393, 399 (2d Cir. 2009) (citing Price).

Indeed, “[t]o the extent that the Constitution is a social

contract establishing a system of self-government,

permanent outsiders such as foreign sates seem to

have little claim to invoke constitutional ‘rights.’”

Damrosch, 73 Va. L. Rev. at 487.

Perhaps alluding to these arguments, this Court in

Weltover, “assum[ed], without deciding, that a foreign

state is a ‘person’ for purposes of the Due Process

Clause,” 504 U.S. at 619, but then included a “cf.” cite

to its holding in Katzenbach that “States of the Union

are not ‘persons’ under the Fifth Amendment[.]” Id.

Lower courts have since uniformly relied on the

dicta from Weltover to conclude – or, at a minimum,

assume without deciding – that foreign states are not

“persons” protected by the Fifth Amendment’s Due Process

Clause. See, e.g., Gater Assets Ltd. v. AO Moldovagaz, 2

F.4th 42, 53 (2d Cir. 2021) (acknowledging “foreign

sovereigns and their alter egos” are not entitled to due

process protection); Frontera, 582 F.3d at 399 (refusing

to treat foreign states as persons under the Due

Process Clause); GSS Grp. Ltd v. Nat’l Port Auth., 680

F.3d 805, 809 (D.C. Cir. 2012) (“[F]oreign sovereigns

and their extensively-controlled instrumentalities

are not “persons” under the Fifth Amendment's Due

Process Clause—and thus have no right to assert a

personal jurisdiction defense.”); TMR Energy Ltd. v.

State Prop. Fund of Ukr., 411 F.3d 296, 302 (D.C. Cir.

2005) (holding that foreign states are not persons for

due process purposes); Price, 294 F.3d at 96 (rejecting

the notion that a foreign state is a person under the

Fifth Amendment); S & Davis Int’l, Inc. v. The Republic

of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000)

(concluding foreign state did not possess “liberty

interest[s] for the purposes of substantive due process

analysis”); First Inv. Corp. of Marshall Islands v.

Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742, 752

(5th Cir. 2012) (“[W]e assume, without deciding, that a

foreign sovereign cannot raise a personal jurisdiction

defense as it is not a ‘person’ under the Due Process

Clause.”).

See generally David P. Stewart, A

Commentary on Ingrid Wuerth’s the Due Process and

Other Constitutional Rights of Foreign Nations, 88

Fordham L. Rev. Online 102, 103-04 (2019).

Conflicting lower court decisions predating Weltover

applied due process almost reflexively in the face of

scant precedent. Those cases either predated passage

of the FSIA or based their holding on pre-FSIA

precedent. See Texas Trading & Mill. Corp. v. Fed.

Republic of Nigeria, 647 F.2d 300, 313 (2d Cir. 1981)

(concluding foreign state is a “person” within meaning

of due process clause based on pre-FSIA precedent

resting on quasi-in-rem jurisdiction); Petrol Shipping

Corp. v. Kingdom of Greece, 360 F.2d 103, 110 (2d Cir.

1966) (pre-FSIA case holding that service on sovereign

agent was sufficient and suggesting in a single

sentence of dicta that due process applied); Purdy Co.

v. Argentina, 333 F.2d 95, 98 (7th Cir. 1964) (pre-FSIA

case holding that service of process on Argentinian

consul not sufficient to establish service over

Argentina). As one of those courts observed, “pre-FSIA

suits against foreign states were generally brought

quasi in rem, and the due process clause was not

uniformly applied to quasi in rem suits until 1977, a

year after the FSIA was passed.” Texas Trading, 647

F.2d at 313.

Moreover, when presented with the opportunity to

readdress the issue after Weltover, most Circuits corrected

course – and in some cases expressly overruled prior

precedent – to conclude that foreign states are not

“persons” entitled to due process protection under the

Constitution. See Abelesz v. Magyar Nemzeti Bank, 692

F.3d 661, 694 (7th Cir. 2012) (ignoring pre-FSIA

precedent and citing to cases decided after Weltover to

conclude that foreign states were not “persons” entitled to

Constitutional due process); Frontera, 582 F.3d at 400

(“Accordingly, to the extent that Texas Trading

conflicts with our holding today that foreign states are

not ‘persons’ entitled to rights under the Due Process

Clause, it is overruled.”); Creighton Ltd. v. Gov't of

State of Qatar, 181 F.3d 118, 124–25 (D.C. Cir. 1999)

(observing shift in D.C. Circuit precedent from preWeltover cases, holding FSIA did not affect the requirements of constitutional due process, to post-Weltover

cases, holding “that the requirement of personal

jurisdiction does not apply to a foreign state”). Against

this growing “consensus among the circuit courts,” the

judges dissenting from rehearing en banc recognized

that the Ninth Circuit now “stands alone” as the

outlier. Pet. App. 68a (Bumatay, J., dissenting).

(“[W]hen it comes to the law, experimentation isn’t

usually a virtue.”).

To be sure, foreign states are not without recourse if

they believe they have been unreasonably haled into a

U.S. court. Rather, they have a “panoply of mechanisms in

the international arena through which to seek

vindication or redress.” See Price, 294 F.3d at 98 (citing

Damrosch, 73 Va. L.Rev. at 525). “These mechanisms,

not the Constitution, set the terms by which sovereigns

relate to one another.” Id.; see also Douglass v. Nippon

Yusen Kabushiki Kaisha, 46 F.4th 226, 268 (5th Cir.

2022) (Elrod, J., dissenting) (“While there is, of course,

a considerable tradition rooted in natural law and the

law of nations against expansive extraterritorial

exercises of jurisdiction, it is not the role of the federal

judiciary to constitutionalize such under the auspices

of ‘due process.’”).

Some mechanisms are diplomatic ones, uniquely

available to foreign states. See Ex parte Republic of

Peru, 318 U.S. 578, 589 (1943) (“[O]ur national interest

will be better served . . .[if] cases . . . involving our

relations with a friendly foreign power, are righted

through diplomatic negotiations rather than by the

compulsions of judicial proceedings.”); Schooner

Exchange, 11 U.S. at 146 (noting that “the sovereign

power of the nation is alone competent to avenge

wrongs committed by a sovereign” and that any

questions arising from those wrongs are “questions of

policy than of law, that they are for diplomatic, rather

than legal discussion”). See generally, Damrosch, 73 Va.

L. Rev. at 521 (recognizing that “diplomacy outside the

constitutional system . . . has shaped the Supreme

Court’s approach to various problems of domestic law”).

Other generally applicable doctrines like the act-ofstate doctrine, the foreign sovereign compulsion doctrine,

and the doctrine of forum non conveniens, may remain

viable defenses existing outside the contours of the

Constitution, thereby mitigating any concern that U.S.

courts will be reduced to international courts of claims.

See Verlinden, 461 U.S. at 490 n. 15 (noting the

availability of forum non conveniens in cases under the

FSIA); Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398 (1964) (act-of-state doctrine); Restatement

(Fourth) Foreign Relations Law of the United States

§ 442 (2018) (foreign sovereign compulsion doctrine);

Bolivarian Republic of Venezuela v. Helmerich & Payne

Int’l Drilling Co., 581 U.S. 170, 187 (2017) (noting

that “a court should decide the foreign sovereign’s

immunity defense at the threshold of the action . . .

resolving any factual disputes as near to the outset of

the case as is reasonably possible”); see also Price 294

F.3d at 99.

Finally, other case-specific doctrines like deference,

comity, and the political question doctrine may afford

foreign sovereigns additional arguments against

assertions of jurisdiction which tread upon the foreign

relations of the United States, often with the benefit of

the views of the Nation’s political branches entrusted

with the maintenance of its foreign affairs. See

Sosa, 542 U.S. at 733 n. 21 (discussing “case-specific

deference” to the political branches in cases under the

Alien Tort Statute); Altmann, 541 U.S. at 702 (“[S]hould

the State Department choose to express its opinion

on the implications of exercising jurisdiction over

particular petitioners [including foreign states] in

connection with their alleged conduct that opinion

might well be entitled to deference as the considered

judgment of the Executive on a particular question of

foreign policy.” (footnote omitted)). See generally William

S. Dodge, International Comity in American Law, 115

Colum. L. Rev. 271 (2015) (discussing various

applications of the comity doctrine); Born & Rutledge

at 26-27 & n. 140 (discussing application of the

political question doctrine in international civil cases).

In sum, precedent, glossing the purposes of the Due

Process Clause, comports with the text and history,

reaffirming the conclusion that foreign states do not

qualify as “persons” within the meaning of the Fifth

Amendment. To conclude otherwise “would distort the

very notion of ‘liberty’ that underlies the Due Process

Clause.” Price 294 F.3d at 99. A remedy at the expense

of liberty is necessarily “worse than the disease.”

Citizens United, 558 U.S. at 355.

CONCLUSION

For the foregoing reasons, in addition to those

offered by Petitioners, the judgments in both cases

should be reversed.

Respectfully submitted,

JENNIFER B. DICKEY

JONATHAN D. URICK

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

PETER B. RUTLEDGE

Counsel of Record

HILLARY K. LUKACS

MORRIS MANNING &

MARTIN, L.L.P.

1600 Atlanta Financial Center

3343 Peachtree Road, NE

Atlanta, GA 30326-1044

Counsel for the Chamber of

(404) 233-7000

Commerce of the United

brutledge@mmmlaw.com

States of America

Counsel for Amici Curiae

RYAN P. MEYERS

JOHN P. WAGNER

AMERICAN PETROLEUM

INSTITUTE

200 Massachusetts Ave., NW

Washington, D.C. 20001

(202) 682-8000

MeyersR@api.org

Counsel for the American

Petroleum Institute

December 11, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.