Imagine that a presenter at an academic conference summarizes the Supreme Court’s recent decisions. The presenter explains that Dobbs v. Jackson Women’s Health Organization addressed regulatory constraints on certain medical procedures and therefore is primarily of interest to health law scholars; that Trump v. United States addressed a defense to certain criminal charges and therefore is primarily of interest to criminal law scholars; and that Students for Fair Admissions v. Harvard addressed university admissions criteria and therefore is primarily of interest to education law scholars. The audience would conclude that the presenter missed the bigger picture. Each decision invoked principles with broad implications beyond the specific context in which the constitutional issue arose. Each should and will interest scholars in many fields.
Now suppose that the same presenter mentions that Pennoyer v. Neff is a famous decision about civil procedure. The audience that rejected the presenter’s prior oversimplifications might nevertheless accept the presenter’s narrow characterization of Pennoyer as a civil procedure case. The academy has relegated constraints on personal jurisdiction to the margins of the constitutional landscape. Pennoyer is a staple of civil procedure courses, but rarely receives substantial coverage in courses about constitutional law. Yet Pennoyer is interesting primarily because the Court sanctified a territorial account of state power with the imprimatur of the Fourteenth Amendment’s Due Process Clause. Pennoyer therefore should feature prominently in discussions of federalism. Marginalizing Pennoyer as a case about civil procedure minutiae makes the same type of mistake as reducing Dobbs to a health law decision, reducing Trump to a criminal law decision, and reducing SFFA to an education law decision.
In Pennoyer, Due Process, and the End of Reconstruction, Aderson François and Helen Hershkoff restore Pennoyer to the broader constitutional context in which it belongs. They contend that Pennoyer is not merely a case about the meaning of the Due Process Clause as applied to personal jurisdiction. Instead, scholars should analyze Justice Stephen Field’s 1878 Pennoyer opinion in the context of contemporary jurisprudential debates. At the time the Court decided Pennoyer, Reconstruction was waning and a “Confederate narrative” reifying state sovereignty was rising. A competing narrative from Reconstruction’s defenders emphasized the importance of national power to protect civil rights. In this fraught environment, even seemingly mundane cases provided opportunities to skew the trajectory of important constitutional principles. François and Hershkoff contend that Justice Field seized this opportunity to undermine Reconstruction. Field could have resolved Pennoyer without citing the Due Process Clause, which the states did not ratify until after the challenged conduct occurred. His dalliance with due process presents a puzzle for scholars who focus narrowly on personal jurisdiction but has a clearer rationale when viewed as a component of postbellum legal discourse. Invoking the Fourteenth Amendment enabled Field to transform a dispute about the mechanics of attachment jurisdiction into a vehicle for framing the states’ role in the federal system.
François and Hershkoff uncover Justice Field’s reasoning by examining contemporary constitutional jurisprudence. Throughout the 1870s, courts struggled to synthesize the new Reconstruction Amendments with the original Constitution. Each case nominally presented a narrow issue implicating a particular domain, such as voting procedures, criminal law, and economic regulation. But these ostensibly distinct cases had a unifying thread. Each required considering whether the national government could exercise power in ways that antebellum principles would have precluded. Justice Field’s pre- and post-Pennoyer opinions tended to favor antebellum norms. He framed these norms as providing a strongly entrenched backdrop that limited what the Reconstruction Amendments could accomplish. Viewed in this context, Pennoyer’s endorsement of territorial sovereignty as an intrinsic feature of the original Constitution was a strategic maneuver. By prioritizing a perceived tradition of state discretion within its territory, Field fortified antebellum federalism principles against postbellum encroachment. François and Hershkoff frame this maneuver as part of a “gradual emergent policy that became solidified in constitutional doctrine over time” and led to Reconstruction’s defeat.
The article adds a second layer of historical inquiry that further enriches analysis of Pennoyer’s significance. Pennoyer considered whether a state court had jurisdiction to execute a default judgment upon land that Neff acquired under the 1850 Oregon Donation Act. Both the Donation Act and judicially endorsed land seizures were controversial. The Donation Act overtly discriminated based on race: white settlers could claim land while black settlers could not. After white settlers claimed land, they were at constant risk of losing the land to predatory schemers, including through dubious writs of execution. François and Hershkoff therefore view Pennoyer’s requirement of pre- rather than post-judgment attachment as a mechanism that supported white property owners seeking to protect their economic interests. The racial subtext and endemic insecurity of title were not formally before the Court, but the Justices—especially Field, who was from California—would have been aware of related controversies swirling around ownership of western land. This context provides a prism for viewing Pennoyer that a myopic focus on the formal holding would obscure.
François and Hershkoff’s “central point” is that “trying to understand Pennoyer from a perspective that is only internal to jurisdiction doctrine, divorced from its time and its place, distorts the decision’s rationale and occludes its significance to constitutional politics.” While they limit their inquiry to Pennoyer, their point also applies to subsequent cases that addressed personal jurisdiction. For example, International Shoe Company v. Washington’s emphasis on “unreasonable or undue procedure” can be understood as favoring a functional rather than formal approach to analyzing state power in a federal system. Burnham v. Superior Court’s dueling opinions about the significance of “traditional rules” can be understood as staking positions in the Court’s long-running effort to define the boundaries of substantive due process. And the Court’s recent decisions in Mallory v. Norfolk Southern Railway and Ford Motor Company v. Montana Eighth Judicial District Court are as much about selecting proper methods of constitutional interpretation as they are about personal jurisdiction.
Personal jurisdiction decisions are small vignettes in an evolving tapestry of constitutional law. The academy’s siloed approach to curricula and scholarship obscures the relevance of this tapestry. In contrast, Justices often are acutely aware that they are weaving individual opinions into a broader narrative about the intersection of state power and individual rights. François and Hershkoff’s fascinating article highlights the importance of viewing the Court’s personal jurisdiction decisions as part of the broader narrative that the decisions draw upon and extend. Pennoyer’s implications for constitutional law are far more substantial than its immediate focus on post-judgment attachment suggests.
