United States Court of Appeals 

for the Fifth Circuit 

No. 20-30382 

Stephen Douglass, Individually and as personal 

representative of the Estate of Shingo Alexander 

Douglass; Dora Hernandez, Individually and as 

personal representative of the Estate of Noe 

Hernandez; Lan Huynh, Individually and as personal 

representative of the Estate of Ngoc Truong Huynh; 

Darrold Martin, Individually and as personal 

representative of the Estate of Xavier Alec Martin; 

Erin Rehm, Individually and as personal representative 

of the Estate of Gary Leo Rehm, Jr.; Lloyd Wayne 

Rigsby, Jr., Individually and as personal representative 

of the Estate of Dakota Kyle Rigsby; Carmen Sibayan, 

Individually and as personal representative of the 

Estate of Carlos Victor Ganzon Sibayan, 

Plaintiffs—Appellants, 

versus

Nippon Yusen Kabushiki Kaisha, 

Defendant—Appellee, 

consolidated with 

_____________ 

No. 20-30379 

_____________ 

United States Court of Appeals 

Fifth Circuit 

FILED 

August 16, 2022 

Lyle W. Cayce 

Clerk 
No. 20-30382 

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2 

Jhon Alcide; Richard Allen-Easmon; Dustin Angle; 

Jesus Arguello; Valerie Arguello, Et al 

Plaintiffs—Appellants, 

versus

Nippon Yusen Kabushiki Kaisha, 

Defendant—Appellee. 

Appeals from the United States District Court 

for the Eastern District of Louisiana 

USDC Nos. 2:19-CV-13688 & 2:19-CV-13691 

Before Richman, Chief Judge, and Jones, Smith, Stewart, 

Dennis, Elrod, Southwick, Haynes, Graves, Higginson, 

Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and

Wilson, Circuit Judges.

Edith H. Jones, Circuit Judge, joined by Richman, Chief Judge, and 

Smith, Stewart, Dennis, Southwick, Haynes, Costa, Ho, 

Duncan, Engelhardt, and Wilson, Circuit Judges:

*

The issue before the en banc court is whether a federal court may 

exercise personal jurisdiction over a foreign corporation for federal claims, 

which arise from injuries and deaths of American naval personnel in a 

collision in foreign waters. To succeed, the plaintiffs must show either that 

the foreign corporation is “at home” in the United States or that their claims 

arise from or relate to the foreign corporation’s business activities in the 

*

 Judge Haynes concurs in the judgment only. Senior Judge King was a member of 

the panel but chose not to participate in en banc rehearing. 
No. 20-30382 

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3 

United States. The district court rejected the first alternative based on 

substantial precedent; the plaintiffs foreswore, as they had to, reliance on the 

second alternative. We AFFIRM. 

I. Background

Nippon Yusen Kabushiki Kaisha (“NYK”), incorporated and 

headquartered in Japan, is a major global logistics company that transports 

cargo by air and sea. For its seaside operations, NYK owns or charters a 

formidable fleet that includes bulk carriers, container ships (of all sizes), car 

transporters, tankers, cruise ships, shuttle tankers, drillships, and LNG 

carriers, among other vessels.1

 NYK charters more than half of the ships it 

uses to transport cargo.2

 The vessels call port throughout the world. 

Between 2017 and 2019, about seven percent of the worldwide port calls 

made by NYK owned or chartered vessels were in the United States, totaling 

about 1500 calls annually. 

A natural consequence of NYK’s handling shipments bound for the 

United States is that it occasionally litigates in American courts. Since 2010, 

for example, NYK has filed around thirty lawsuits in federal courts, most 

involving claims seeking freight charges owed under bills of lading.3

 And 

every so often, NYK and its ships are sued in American courts, typically for 

1

 NYK Group Fleet, NYK LINE FACT BOOK I 2019, at 8 (Apr. 26, 2019), 

https://www.nyk.com/english/ir/library/fact/first/2019/__icsFiles/afieldfile/2019/10/

28/190426FB1E_1.pdf (last visited Oct. 23, 2021). 

2 Id.

3 See, e.g., Complaint at 3-5, Nippon Yusen Kabushiki Kaisha v. GSF Nut Co., LLC, 

No. 2:2017-cv-5614 (C.D. Cal. July 28, 2017), ECF No. 1; Complaint at 5-8, Nippon Yusen 

Kabushiki Kaisha v. Multi-Trans Shipping Agency, Inc., No. 2:2016-cv-9523 (C.D. Cal. Dec. 

23, 2016), ECF No. 1; Complaint at 3-5, Nippon Yusen Kabushiki Kaisha v. Wesmex Inc., No. 

8:2014-cv-1910 (C.D. Cal. Dec. 3, 2014), ECF No. 1.
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4 

cargo damaged en route to the United States or for injuries that occurred 

during cargo operations in the United States.4

Among NYK’s approximately 1700 employees, about 25 are seconded 

to NYK subsidiaries in the United States. Overall, NYK’s business in the 

United States and North America makes up less than ten percent of its annual 

revenue. 

On June 17, 2017, the ACX Crystal, a 730-foot container ship 

chartered by NYK,5

 collided with the destroyer USS Fitzgerald in Japanese 

territorial waters.6

 As the ACX Crystal’s bow ripped through the Fitzgerald’s 

4 See, e.g., Complaint at 1-5, Epperson v. NYK Line, No. 4:2019-cv-5948 (N.D. Cal. 

Sept. 24, 2019), ECF No. 1 (negligence claim by American harbor pilot injured in United 

States waters by allegedly faulty Jacob’s ladder); Complaint at 3-5, Neal v. NYK Line, No. 

4:2013-cv-507 (N.D. Cal. Feb. 5, 2013), ECF No. 1 (negligence claim by longshoreman 

involved in unloading NYK vessel in the United States); Complaint at 2-3, Starr Indem. & 

Liab. Co. v. Yamato Transp. U.S.A., Inc., No. 2:2016-cv-4616 (C.D. Cal. June 24, 2016), 

ECF No. 1 (damaged cargo); Complaint at 2-4, Great Am. Ins. Co. of N.Y. v. Hanjin 

Shipping, No. 2:2015-cv-8798 (C.D. Cal. Nov. 11, 2015), ECF No. 1 (same); Complaint at 

2-4, Beachside Produce, LLC v. Nippon Yusen Kabushiki Kaisha, No. 2:2015-cv-4951 (C.D. 

Cal. June 30, 2015), ECF No. 1 (same). 

5

 NYK had a time charter for the ACX Crystal. A time charterer obtains use of a 

ship in only a limited sense: The vessel’s owner “provides the vessel’s master and crew 

and (depending on the circumstances) pays the normal operating expenses, while the 

charterer obtains the commercial benefit of having its cargo carried.” David W. 

Robertson, Steven F. Friedell, & Michael F. Sturley, Admiralty 

and Maritime Law in the United States 325 (4th ed. 2020). In other words, 

time charters “are more like taxis or limousine services or hotels than they are like typical 

leases.” Id. Because the time charterer typically has little or no control over the vessel’s 

navigation, it almost never bears liability for a collision stemming from navigational error. 

See Moore v. Phillips Petroleum Co., 912 F.2d 789, 792 (5th Cir. 1990) (“The vessel owner 

remains responsible for . . . navigational errors by the pilot and negligence by the 

crew . . . .”) (citation omitted). Thus, even if the plaintiffs could establish personal 

jurisdiction over NYK, their claims face other substantial hurdles. 

6

 The after-accident reports issued by the National Transportation Safety Board 

and the Japanese Transport Safety Board largely fault the United States Navy for the 

collision—neither report places any fault on NYK. See National Transportation Safety 
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5 

hull at midship, several compartments on the Fitzgerald flooded, killing seven 

American sailors and injuring dozens of others. At the time of the collision, 

the ACX Crystal, then a Philippine-flagged vessel, was on an intra-Asia trade 

route. It has never called port in the United States. 

Personal representatives of the seven sailors killed sued NYK in 

federal court, asserting wrongful death and survival claims under the Death 

on the High Seas Act, 46 U.S.C. § 30301 et seq. The injured sailors and their 

family members sued NYK separately, asserting negligence and loss of 

consortium claims.7

 In both cases, the plaintiffs alleged that NYK, a foreign 

corporation, is amenable to federal court jurisdiction under Fed. R. Civ. 

P. 4(k)(2) based on its “substantial, systematic and continuous contacts with 

the United States as a whole.” Neither complaint alleges that the injuries at 

issue arose out of or relate to NYK’s contacts with the United States. 

NYK moved to dismiss the suits for lack of personal jurisdiction under 

Fed. R. Civ. P. 12(b)(2). The district court obliged, issuing identical 

opinions. Relying on Patterson v. Aker Solutions Inc., 826 F.3d 231 (5th Cir. 

2016), the district court held that the Fifth Amendment due process test for 

personal jurisdiction governs this admiralty dispute and mirrors the 

Fourteenth Amendment test. Applying the Fourteenth Amendment 

standard, the district court concluded that NYK did not have sufficient 

Board, Marine Accident Report: Collision Between US Navy Destroyer Fitzgerald and 

Philippine-Fleg Container Ship ACX Crystal Sagami Nada Bay off Izu Peninsula, Honshu 

Island, Japan July 17, 2017 (2020), https://www.ntsb.gov/investigations-

/AccidentReports/Reports/MAR 2002.pdf (last visited Oct. 23, 2021); Japan Transport 

Safety Board, Marine Accident Investigation Report (Aug. 29, 2019), https://www. 

mlit.go.jp/jtsb/eng-mar_report/2019 /2017tk0009e.pdf (last visited Oct. 23, 2021). 

7

 The injured sailors and the personal representatives of the sailors killed also sued 

the ACX Crystal’s owner, Olympic Steamship Company, and its bareboat charterer, Vega 

Carriers Corporation, both Panamanian corporations, in Japan for the same injuries at issue 

in this lawsuit. See Appellee’s Rule 28(j) Letter dated Jan. 29, 2021. 
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6 

contacts with the United States to justify the court’s exercising personal 

jurisdiction over it. 

On appeal, the cases were consolidated. The panel affirmed the 

judgment but suggested it would have reached a different result if not bound 

by Patterson. Concurring, Judges Elrod and Willett opined that “our 

interpretation of Fourteenth Amendment due process is shaped by 

federalism concerns that are irrelevant to the Fifth Amendment context,” 

and Patterson imposed an “unnecessary limitation” on Rule 4(k)(2). In their 

view, Patterson “unwittingly limited Rule 4(k)(2) by collapsing the Fifth 

Amendment and Fourteenth Amendment due process analyses.” 

This court granted plaintiffs’ petition for rehearing en banc to 

consider whether NYK is subject to jurisdiction in these cases. 

II. Standard of Review

This court’s review of a Rule 12(b)(2) dismissal for lack of personal 

jurisdiction is de novo. Patterson, 826 F.3d at 233 (citing Revell v. Lidov, 

317 F.3d 467, 469 (5th Cir. 2002)). 

III. Discussion 

The Fifth Amendment due process standard governs the personal 

jurisdiction inquiry in this lawsuit raising federal claims in federal court. The 

en banc dispute centers on whether the Fifth Amendment standard mirrors 

the “minimum contacts” and “fair play and substantial justice” principles 

underlying the Fourteenth Amendment personal jurisdiction inquiry. Two 

issues, considered in turn, logically precede that debate. First, we reject the 

plaintiffs’ passing argument that NYK, as a foreign corporation, lacks Fifth 

Amendment due process rights altogether and therefore cannot object to a 

federal court’s assertion of personal jurisdiction over it. Second, we expose 

the faulty premise underlying the plaintiffs’ contention that applying 
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7 

Fourteenth Amendment personal jurisdiction standards in Fifth Amendment 

cases would render Rule 4(k)(2) a nullity.8

A. Foreign corporations litigating in federal court may challenge 

the court’s personal jurisdiction under the Fifth Amendment Due 

Process Clause. 

The plaintiffs oddly contend that NYK, as a foreign corporation, has 

no Fifth Amendment due process rights at all. In support, they cite cases 

addressing whether constitutional rights extend to foreign persons acting 

abroad. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 

2082, 2088 (2020) (holding that foreign subsidiaries of United States 

companies do not have First Amendment rights); United States v. Verdugo8

 This majority opinion addresses the exact arguments raised by the plaintiffs 

consistently throughout the litigation. But for one point, we will not address the dissents’ 

wholly novel arguments, which pointedly divorce themselves from the parties’ theory of 

the case. Post at 47 n.5 (“I disagree with both approaches because both start not with the 

Fifth Amendment but with inapplicable Fourteenth Amendment case law.”). By standing 

up for the law as it has been accepted unanimously among the circuit courts, we decline to 

consider adversarially untested propositions. Moreover, the principal dissent’s criticism 

that NYK bore some burden—to anticipate and analyze personal jurisdiction without any 

reference to well-settled case law—is simply wrong. At the very least, it is the plaintiffs’ 

burden to establish the court’s jurisdiction in response to a Rule 12(b)(2) personal 

jurisdiction challenge by a defendant. Johnson v. Multidata Sys. Int’l Corp., 523 F.3d 602, 

609 (5th Cir. 2008). 

If we were to address the merits of the principal dissent’s theory, however, we 

would note its repeated insistence that, consistent with the Fifth Amendment, Congress

could pass a law to subject foreign defendants to American federal court jurisdiction for any 

injuries inflicted on American citizens or claims arising abroad. Whether this is correct or 

not, we do not assay. Moreover, we cannot analyze this theory because the dissent posits 

no rule or limits flowing from the Fifth Amendment. And finally, no court has adopted the 

dissent’s view that Rule 4(k)(2) alone suffices to extend substantive personal jurisdiction 

to the constitutional limit, and the Rule’s language alone suggests otherwise. Fed. R. 

Civ. P. 4(k)(2) (“[S]erving a summons . . . establishes personal jurisdiction over a 

defendant if . . . exercising jurisdiction is consistent with the United States Constitution 

and laws.”).
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8 

Urquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 1065-66 (1990) (rejecting 

contention that DEA’s search of a residence in Mexico violated non-citizen’s 

Fourth Amendment rights).9

 Here, however, NYK invokes its constitutional 

due process rights in the course of litigation in the United States. Therefore, 

any constitutional violation can occur only in the United States. Cf. VerdugoUrquidez, 494 U.S. at 264, 110 S. Ct. at 1060 (differentiating Fifth and 

Fourth Amendment violations and concluding that unlike an “unreasonable 

search and seizure,” a violation of the privilege against self-incrimination 

“occurs only at trial”). The cases the plaintiffs rely on are thus inapposite. 

Further, the plaintiffs’ argument is irreconcilable with the countless 

cases where courts, including the Supreme Court, have afforded foreign 

corporations due-process-based personal-jurisdiction protections under the 

Fourteenth Amendment. See, e.g., Goodyear Dunlop Tires Operations, S.A. v. 

Brown, 564 U.S. 915, 131 S. Ct. 2846 (2011); J. McIntyre Mach., Ltd. v. 

Nicastro, 564 U.S. 873, 131 S. Ct. 2780 (2011); Asahi Metal Indus. Co. v. 

Superior Ct. of Cal., 480 U.S. 102, 107 S. Ct. 1026 (1987). Thus, NYK can 

object to a federal court’s unwarranted exercise of personal jurisdiction to 

the same extent as a United States citizen. 

B. Rule 4(k) is a procedural rule governing the territorial limits of 

service. 

 Federal Rule of Civil Procedure 4(k)(2) states that, “[f]or a claim that 

arises under federal law, serving a summons . . . establishes personal 

jurisdiction over a defendant if: (A) the defendant is not subject to 

9

 The plaintiffs also rely on Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 

1981-83 (2020), to support their claim. That case, however, is inapt here because it 

addresses whether non-naturalized foreigners have due process rights to judicial review of 

immigration decisions where Congress did not statutorily provide such review. Id.
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9 

jurisdiction in any state’s courts of general jurisdiction; and (B) exercising 

jurisdiction is consistent with the United States Constitution and laws.” 

Throughout their briefing, the plaintiffs present Rule 4(k)(2) as the 

substantive source of personal jurisdiction over NYK and contend that 

adopting the Fourteenth Amendment standard would render Rule 4(k)(2) a 

nullity. That rule-centric view obscures the purely constitutional nature of 

the personal jurisdiction question at issue here. Rule 4(k)(2) is a procedural 

rule governing the territorial limits of service. The text is expressly 

subservient to the constitutional limits of due process. The rule does not—

and cannot—control the constitutional inquiry whether due process 

prohibits a court from exercising personal jurisdiction over the defendant in 

a given lawsuit. 

Today, personal jurisdiction is typically exercised through a summons 

to appear in court on pain of default. The valid exercise of jurisdiction 

through a summons requires (1) notice of the command and (2) amenability 

to the command. The notice requirement is procedural, and the amenability 

requirement is substantive. Historically, those requirements were 

inextricably intertwined because federal courts had jurisdiction over only 

defendants that voluntarily appeared or were personally served in the 

district.10 At the advent of the Federal Rules of Civil Procedure, the 

10 Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79 (“But no person shall be arrested 

in one district for trial in another, in any civil action before a circuit or district court. . . . 

And no civil suit shall be brought before either of said courts against an inhabitant of the 

United States, by any original process in any other district than that whereof he is an 

inhabitant, or in which he shall be found at the time of serving the writ . . . .”). 
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procedural limitations on proper notice were basically the same.11 See Fed. 

R. Civ. P. 4(f) (1938). 

In 1945, however, the Supreme Court made clear that due process 

permitted personal jurisdiction over a nonresident defendant as long as the 

defendant had “certain minimum contacts with [the forum] such that the 

maintenance of the suit does not offend ‘traditional notions of fair play and 

substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 

66 S. Ct. 154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 

61 S. Ct. 339, 343 (1940)). After International Shoe, states began authorizing 

out-of-state service.12 Rule 4 was amended in 1963 to allow service outside 

the territorial limits of the state when authorized by state law.13 As the 

territorial scope of service expanded, the due process limitations on personal 

jurisdiction assumed greater independent significance. See, e.g., Burger King 

Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174 (1985); Helicopteros 

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868 (1984); 

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559 

(1980); Kulko v. Superior Ct. of Cal., 436 U.S. 84, 98 S. Ct. 1690 (1978). 

Then came the 1993 Amendments. Rule 4 was completely rewritten 

and what was Rule 4(f) became Rule 4(k). Relevant here, the new 

Rule 4(k)(2), adopted in response to the Supreme Court’s decision in Omni 

11 Fed. R. Civ. P. 4(f) advisory committee’s note (1937) (“This Rule enlarges 

to some extent the present rule as to where service may be made. It does not, however, 

enlarge the jurisdiction of the district courts.”). 

12 Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes Extended to the 

Limits of Due Process, 84 B.U. L. Rev. 491, 492-97 (2004) (discussing the rise of state longarm statutes after International Shoe). 

13 Fed. R. Civ. P. 4(f) advisory committee’s note (1963) (“The first sentence is 

amended to assure the effectiveness of service outside the territorial limits of the State in 

all the cases in which any of the rules authorize service beyond those boundaries.”). 
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11 

Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 108 S. Ct. 404 (1987), 

assumed its current wording, although Rule 4(k) retained the old Rule 4(f)’s 

caption, “Territorial Limits of Effective Service.” Fed. R. Civ. P. 4(k). 

Notwithstanding the amendments, Rule 4(k) is still just a procedural 

rule about issuing summonses. By law, the Federal Rules of Civil Procedure 

cannot “abridge, enlarge or modify any substantive right,” 

28 U.S.C. § 2072(b), and a rule expanding the scope of a court’s personal 

jurisdiction would modify a substantive right no less than a rule expanding 

subject matter jurisdiction. Further, the Advisory Committee that 

recommended the 1993 Amendments recognized that “[t]here remain 

constitutional limitations on the exercise of territorial jurisdiction by federal 

courts over persons outside the United States.” Fed. R. Civ. P. 4(k)(2) 

advisory committee’s note to 1993 amendment. No doubt service of a 

summons under Rule 4(k)(2) establishes personal jurisdiction when 

procedurally authorized by the Federal Rules and consistent with the 

Constitution. But as the rule expresses, the efficacy of service remains 

subject to the constitutional question whether a defendant is amenable to 

jurisdiction. The plaintiffs’ consequentialist argument, that adopting a 

certain due process test for personal jurisdiction under the Fifth Amendment 

would render Rule 4(k)(2) a nullity, is textually and logically unsound. 

C. The Fifth Amendment due process test for personal 

jurisdiction mirrors the Fourteenth Amendment test. 

This brings us to the heart of the dispute: Determining what standard 

governs personal jurisdiction over defendants sued on federal claims in 

federal court under the Fifth Amendment Due Process Clause. 

NYK contends that the Fifth Amendment due process test for 

personal jurisdiction parallels the Fourteenth Amendment test, except that 

the Fifth Amendment test looks at contacts with the United States as a whole 
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12 

rather than any one state. On this basis, NYK continues, the tried and true 

dichotomy between specific and general jurisdiction applies under the Fifth 

Amendment. Because the plaintiffs do not allege that their claims arise out 

of or relate to NYK’s contacts with the United States, NYK is amenable to 

the district court’s jurisdiction only under a general jurisdiction theory, 

which means NYK is amenable to jurisdiction if and only if its contacts are 

“so continuous and systematic as to render it essentially at home in the” 

relevant forum, the United States. Daimler AG v. Bauman, 571 U.S. 117, 139, 

134 S. Ct. 746, 761 (2014) (quoting Goodyear, 564 U.S. at 920, 131 S. Ct. at 

2851) (cleaned up). 

The plaintiffs and their amici14 key off their interpretation of 

Rule 4(k)(2) and contend that the Fifth and Fourteenth Amendment due 

process requirements are critically different. They note first that the 

Supreme Court has expounded on the Fourteenth Amendment due process 

requirements for personal jurisdiction but has consistently reserved the Fifth 

Amendment question. Additionally, while principles of interstate federalism 

and individual liberty animate the Supreme Court’s Fourteenth Amendment 

personal jurisdiction jurisprudence, the Fifth Amendment focuses on the 

United States’ sovereign limits rather than the states’ reciprocal sovereign 

limits, rendering federalism immaterial. Because the Fifth Amendment is 

concerned with guaranteeing fairness for defendants rather than 

circumscribing state court jurisdiction, a distinct and more permissive 

standard is warranted. What is more, importing the Fourteenth Amendment 

standards into the Fifth Amendment analysis would render Rule 4(k)(2) 

14 Professors Helen Hershkoff, Arthur R. Miller, Alan B. Morrison, John E. Sexton, 

and Adam N. Steinman filed an amicus curiae brief in this case supporting the plaintiffs. 
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13 

essentially nugatory. Finally, at a minimum, admiralty’s unique nature and 

history necessitate a distinct standard.

In the plaintiffs’ view, the Fifth Amendment due process inquiry is 

simply whether a defendant, sued on a federal claim, was doing enough 

systematic and continuous business in the United States that it had fair notice 

it could be subjected to suit in federal courts. Their novel theory eschews the 

traditional distinction between general and specific personal jurisdiction and, 

more specifically, advocates against applying recent Supreme Court general 

jurisdiction cases like Daimler in favor of a barebones “continuous and 

systematic” standard articulated in International Shoe and allegedly applied 

heretofore in this court. 

In Fourteenth Amendment vernacular, the plaintiffs’ proposed 

personal jurisdiction test appears to dress a general jurisdiction theory in 

specific jurisdiction garb. But even if they argued that their claims must in 

some way be related to the foreign defendant’s continuous and systematic 

contacts with the United States, the “related” prong of their proposed Fifth 

Amendment personal jurisdiction test is toothless: If personal injury and 

wrongful death claims caused in foreign waters by a foreign logistics 

company’s chartered, foreign-registered vessel bound for a foreign country 

are sufficiently related to that corporation’s shipping-related contacts with 

the United States, then what isn’t? The plaintiffs’ conception of “related” 

goes far beyond the Fourteenth Amendment’s “arise out of or relate to” 

standard. 

We reject the plaintiffs’ theory and hold that the Fifth Amendment 

due process test for personal jurisdiction requires the same “minimum 

contacts” with the United States as the Fourteenth Amendment requires 

with a state. Both Due Process Clauses use the same language and serve the 

same purpose, protecting individual liberty by guaranteeing limits on 
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personal jurisdiction. Every court that has considered this point agrees that 

the standards mirror each other. The plaintiffs’ rule-centric argument, that 

importing the Fourteenth Amendment standards into the Fifth Amendment 

context renders Rule 4(k)(2) a nullity, is unpersuasive and wrong. Finally, 

the plaintiffs misinterpret the law underlying their argument about admiralty 

law’s unique nature and history regarding jurisdiction over foreign 

defendants. 

1. The Due Process Clauses.

Limits on the scope of a court’s personal jurisdiction “flow[] not from 

Art. III, but from the Due Process Clause.” Ins. Corp. of Ir. v. Compagnie des 

Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 2104 (1982). Both 

Due Process Clauses protect persons from the deprivation of “life, liberty, or 

property, without due process of law.” U.S. Const. amend. V; amend. 

XIV, § 1. The clauses differ only in that the Fifth Amendment Due Process 

Clause limits the federal government, while the Fourteenth Amendment Due 

Process Clause limits the states. Based on that dissimilarity, the plaintiffs 

contend that the Fourteenth Amendment Due Process Clause vindicates 

federalism principles that are irrelevant under the Fifth Amendment. No 

doubt federalism is immaterial under the Fifth Amendment, but the 

plaintiffs’ myopic emphasis on federalism misses the very core of due 

process. 

“Due process of law” traces its origins to the Great Charter of 

individual liberty, Magna Carta.15 Individual liberty is what the Supreme 

15 Magna Carta guaranteed that “[n]o free man shall be taken, imprisoned, 

disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or 

prosecute him, except by the lawful judgment of his peers and by the law of the land.” A.E. 

Dick Howard, Magna Carta Text and Commentary 45 (rev. ed. 1998). At 

the time of the Fifth Amendment’s ratification, people universally understood “due 

process of law” to convey “the same meaning as the words ‘by the law of the land’” in 
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15 

Court emphasizes as the foundation of the personal jurisdiction requirement. 

That requirement “represents a restriction on judicial power not as a matter 

of sovereignty, but as a matter of individual liberty.” Ins. Corp. of Ir., 

456 U.S. at 702, 102 S. Ct. at 2104; see also Nicastro, 564 U.S. at 899-900, 

131 S. Ct. at 2798 (Ginsburg, J., dissenting) (citing Ins. Corp. of Ir., 456 U.S. 

at 703 n.10, 102 S. Ct. at 2104 n.10); Burger King, 471 U.S. at 471-72, 

105 S. Ct. at 2181-82. International Shoe’s minimum contacts test secures 

defendants’ individual liberty by protecting them against (1) the concrete 

burden of “litigating in a distant or inconvenient forum,” World-Wide 

Volkswagen, 444 U.S. at 292, 100 S. Ct. at 564, and (2) the abstract burden of 

“submitting to the coercive power of a [forum] that may have little legitimate 

interest in the claims in question.” Bristol-Myers Squibb Co. v. Superior Ct. of 

Cal., 137 S. Ct. 1773, 1781 (2017). A forum’s “interest” in the litigation 

depends on, inter alia, the relationship among the defendant, the forum, and 

the litigation. 

To be sure, federalism concerns are central to the Supreme Court’s 

interpretation of the Fourteenth Amendment Due Process Clause.16 But 

“federalism” is a proxy for the abstract burden of a defendant’s submitting 

to the coercive power of a forum with little interest in the dispute. In 

Insurance Corp. of Ireland, the Supreme Court explained that the “restriction 

on state sovereign power described in World-Wide Volkswagen,” i.e., the 

“federalism” aspect of Fourteenth Amendment due process, “must be seen 

as ultimately a function of the individual liberty interest preserved by the Due 

Magna Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 

276 (1856). 

16 See, e.g. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. ---, 141 S. Ct. 1017, 

1025, 1030 (2021); Bristol-Myers Squibb, 137 S. Ct. at 1780-81, 1788; World-Wide 

Volkswagen, 444 U.S. at 293-94, 100 S. Ct. at 565-66. 
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16 

Process Clause.” 456 U.S. at 702 n.10, 102 S. Ct. at 2104 n.10. Indeed, “if 

the federalism concept operated as an independent restriction on the 

sovereign power of the court, it would not be possible to waive the personal 

jurisdiction requirement”—an individual’s “actions cannot change the 

powers of sovereignty, although the individual can subject himself to powers 

from which he may otherwise be protected.” Id. In short, “federalism” is 

not the quintessence of the personal jurisdiction analysis under the 

Fourteenth Amendment Due Process Clause, it is a derivative concern. 

Further, an analogous “federalism” dynamic may arise in the Fifth 

Amendment context under the rubric of “international comity.”17 Just as a 

state court’s exercising coercive power over an out-of-state defendant 

offends Fourteenth Amendment due process when the relationship among 

the defendant, the state, and the litigation is insufficient, so, too, may a 

federal court’s exercising coercive power over a foreign non-resident 

defendant offend Fifth Amendment due process when the relationship 

among the defendant, the United States, and the litigation is insufficient. 

Either situation potentially infringes individual liberty, though the impact of 

foreign relations and national security surely can affect the United States’ 

“sovereign reach” in ways irrelevant to this case. 

17 Consider, for instance, the international comity concerns implicated in this case. 

Under the plaintiffs’ theory, virtually every foreign corporation with more than a nominal 

amount of business in the United States can be haled into federal court for any federal claim. 

Such a reading of the Due Process Clause would not “give[] a degree of predictability to 

the legal system” that would allow corporations to reasonably “structure their primary 

conduct with some minimum assurance as to where that conduct will and will not render 

them liable to suit.” World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567. Even if 

NYK were ultimately held amenable to federal court jurisdiction here, the same 

international comity concerns may warrant forum non conveniens dismissal—especially 

because concurrent litigation is pending in Japanese Courts. 
No. 20-30382 

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17 

In any event, the plaintiffs’ focus on “federalism” concerns in the 

Supreme Court’s Fourteenth Amendment jurisprudence is beside the point. 

Federalism concerns are germane to specific jurisdiction—not general 

jurisdiction, which is the only theory the plaintiffs advanced in the district 

court.18 “Federalism” cannot matter for general jurisdiction. If a corporate 

defendant is “at home” in the forum, by incorporation, principal place of 

business, or otherwise, that forum has “complete and irresistible” 

jurisdiction over it. J. Story, Commentaries on the Conflict 

of Laws 911-12, (3d ed. 1846); see also Daimler, 571 U.S. at 127, 134 S. Ct. 

at 754; Goodyear, 564 U.S. at 919, 131 S. Ct. at 2851; Helicopteros, 466 U.S. at 

414 n.9, 104 S. Ct. at 1872 n.9. Plaintiffs’ proffered “federalism” differences 

between the Fifth and Fourteenth Amendments are superfluous. 

 Because the Due Process Clauses use the same language and 

guarantee individual liberty in the same way, it makes sense that the 

standards developed in the Fourteenth Amendment context must govern 

under the Fifth Amendment. 

 2. Courts all apply the Fourteenth Amendment “minimum 

 contacts” standard in Fifth Amendment cases.

 This court and six other circuits apply Fourteenth Amendment due 

process analysis to determine personal jurisdiction in cases governed by the 

Fifth Amendment. 

18 Compare Ford Motor Co., 141 S. Ct. at 1025, 1030 (raising “federalism” concerns 

in specific personal jurisdiction case) and Bristol-Myers Squibb, 137 S. Ct. at 1780-81, 1788 

(same) and World-Wide Volkswagen, 444 U.S. at 293-94, 100 S. Ct. at 565-66 (same) with

Daimler, 571 U.S. 117, 134 S. Ct. 746 (failing to raise “federalism” concerns in general 

personal jurisdiction case); Goodyear, 564 U.S. 915, 131 S. Ct. 2846 (same); Helicopteros, 

466 U.S. 407, 104 S. Ct. 1868 (1984) (same). But see Daimler, 571 U.S. at 157, 134 S. Ct. at 

772 (Sotomayor, J., concurring in the judgment). 
No. 20-30382 

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18 

 Every Fifth Circuit decision addressing the scope of contacts required 

for personal jurisdiction under the Fifth Amendment has applied the 

then-existing Fourteenth Amendment framework.19 Relatedly, this court’s 

Rule 4(k)(2) cases consistently recognize and invoke the general-specific 

jurisdiction dichotomy, which the plaintiffs dismiss as irrelevant to the Fifth 

Amendment.20 Paradigmatically, in Patterson, the court considered whether 

general jurisdiction existed over a foreign defendant on a federal claim based 

on its contacts with the United States as a whole. Patterson, 826 F.3d at 234. 

In finding insufficient contacts with the United States to support general 

jurisdiction, the court squarely relied on a then-recent Supreme Court 

decision founded on the Fourteenth Amendment. Id. (citing Daimler, 571 

U.S. 139, 134 S. Ct. at 761). 

In practice, this court has found that a foreign corporation’s contacts 

satisfy Fifth Amendment due process only in cases where the parties’ dispute 

arose out of or related to those United States contacts, that is, where specific 

jurisdiction existed.21 The Fifth Circuit has never found that a foreign 

19 See, e.g., Patterson, 826 F.3d at 234 (relying on Fourteenth Amendment cases); 

Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 343-45 (5th Cir. 2002) (same); Adams v. 

Unione Mediterranea di Sicurta, 364 F.3d 646, 651-52 (5th Cir. 2004) (same). 

20 See, e.g., Stutzman v. Rainbow Yacht Adventures Ltd., 265 F. App’x 402 (5th Cir. 

2008) (per curiam); Quick Techs., 313 F.3d at 343-45; Submersible Sys., Inc. v. Perforadora 

Cent., S.A. de C.V., 249 F.3d 413, 420 (5th Cir. 2001). 

21 See Nagravision SA v. Gotech Int’l Tech. Ltd., 882 F.3d 494 (5th Cir. 2018) 

(approving personal jurisdiction over foreign defendants where plaintiffs alleged that 

defendants “use a network of servers located in various cities across . . . the United States 

to engage in the unauthorized distribution of Nagravision’s control words in violation of 

the DMCA and FCA”); Adams, 364 F.3d at 651-652 (finding sufficient contacts for 

personal jurisdiction where foreign defendant insured steel shipment to United States and 

“enabled prosecution of claims in the United States by providing claims agents and 

surveyors” in United States). 
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19 

corporation’s contacts with the United States alone supported general 

jurisdiction over unrelated lawsuits.22

The plaintiffs’ reliance on Adams v. Unione Mediterranea di Scurta, 

364 F.3d 646 (5th Cir. 2004) is misplaced. This court determined that the 

defendant, an Italian insurer, had “continuous and systematic contacts with 

the United States as a whole.” Id. at 651-52. But the claims stemmed from a 

cargo insurance policy covering a shipment to the United States. Id. at 648. 

Adams represents a straightforward application of International Shoe’s 

specific jurisdiction principles.23 See Int’l Shoe, 326 U.S. at 317, 66 S. Ct. at 

22 See, e.g., De Leon v. Shih Wei Navigation Co., 269 F. App’x 487, 490-91 (5th Cir. 

2008) (per curiam) (rejecting general personal jurisdiction theory); Stutzman, 

265 F. App’x at 403-04 (same); Submersible Sys., 249 F.3d at 420-21. 

Indeed, our research found no case accepting a general personal jurisdiction theory 

under the Fifth Amendment like what plaintiffs propose here. See, e.g., Doe v. Buratai, 

792 F. App’x 6, 9 (D.C. Cir. 2019) (per curiam); Morris ex rel. Or. Cascade Corp. v. Harley, 

720 F. App’x 326, 329 (9th Cir. 2017) (per curiam); Wolf v. Celebrity Cruises, Inc., 

683 F. App’x 786, 793 (11th Cir. 2017) (per curiam); Schulman v. Inst. for Shipboard Educ., 

624 F. App’x 1002, 1006 (11th Cir. 2015) (per curiam) (applying Daimler’s test to reject 

general personal jurisdiction under the Fifth Amendment); Abelesz v. OTP Bank, 692 F.3d 

638, 660 (7th Cir. 2012) (relying on Goodyear, 564 U.S. 915); Fraser v. Smith, 594 F.3d 842, 

850 (11th Cir. 2010); Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com. de Equip. Medico, 

563 F.3d 1285, 1297 (Fed. Cir. 2009); Porina v. Marward Shipping Co., 521 F.3d 122, 129 

(2d Cir. 2008); Saudi v. Northrop Grumman Corp., 427 F.3d 271, 276 (4th Cir. 2005); Saudi 

v. Acomarit Maritimes Servs., S.A., 114 F. App’x 449, 456 (3d Cir. 2004); Base Metal 

Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory”, 283 F.3d 208, 215 (4th Cir. 

2002); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 620 (1st Cir. 2001); Consol. Dev. 

Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292-93 (11th Cir. 2000). 

23 In Daimler, the Supreme Court laid to rest the pervasive fallacy that International 

Shoe’s use of the words “continuous and systematic” describes the level of contacts 

necessary for exercising general personal jurisdiction. The Court explained that “the 

words ‘continuous and systematic’ were used in International Shoe to describe instances in 

which the exercise of specific jurisdiction would be appropriate.” Daimler, 571 U.S. at 138, 

134 S. Ct. at 761 (citing Int’l Shoe, 326 U.S. at 317, 66 S. Ct. at 159). The plaintiffs try to 

resuscitate that debunked notion. 
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20 

159 (jurisdiction over a corporate defendant is proper “when the activities of 

the corporation [in the forum] have not only been continuous and systematic, 

but also give rise to the liabilities sued on” (emphasis added)). 

 Furthermore, the Second, Sixth, Seventh, Eleventh, Federal, and 

D.C. Circuits all agree that no meaningful difference exists between the Fifth 

and Fourteenth Amendments’ minimum contacts analyses.24 In Livnat v. 

Palestinian Authority, 851 F.3d 45 (D.C. Cir. 2017), the court rejected the 

same federalism-based arguments urged here. The court pointed out that the 

Supreme Court instinctively relied on its Fourteenth Amendment personal 

jurisdiction jurisprudence when presented with an argument that asserting 

jurisdiction in a Foreign Sovereign Immunity Act case would violate the Fifth 

Amendment Due Process Clause.25 Id. at 54 (citing Republic of Argentina v. 

Weltover, Inc., 504 U.S. 607, 620, 112 S. Ct. 2160, 2169 (1992) (quoting 

Burger King, 471 U.S. at 475, 105 S. Ct. at 2183)). The court noted that every 

circuit to “expressly analyze[] whether the Fifth and Fourteenth 

Amendment standards differ” agreed “that there is no meaningful difference 

in the level of contacts required for personal jurisdiction.” Id. at 54-55 

(citations omitted). The court rejected the argument that the Fourteenth 

Amendment’s federalism concerns fundamentally differentiate it from the 

24 Livnat v. Palestinian Auth., 851 F.3d 45, 54-55 (D.C. Cir. 2017); Waldman v. 

Palestine Liberation Org., 835 F.3d 317, 330 (2d Cir. 2016); Carrier Corp. v. Outokumpu Oyj, 

673 F.3d 430, 449 (6th Cir. 2012); Abelesz, 692 F.3d at 660; Oldfield v. Pueblo de Bahia Lora, 

S.A., 558 F.3d 1210, 1219 n.25 (11th Cir. 2009); Porina, 521 F.3d at 127-29; Deprenyl Animal 

Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1350 (Fed. Cir. 2002). 

25 To be sure, the defendants in that case only raised the personal-jurisdiction 

argument “as an aid in interpreting” FSIA’s direct-effect requirement. Republic of 

Argentina v. Weltover, Inc., 504 U.S. 607, 619 n.2, 112 S. Ct. 2160, 2169 n.2 (1992) 

(quotation omitted). But that in no way minimizes the significance of the fact that the 

Supreme Court’s first instinct, when presented with a question of Fifth Amendment 

personal jurisdiction, was to turn to its Fourteenth Amendment precedent. 
No. 20-30382 

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21 

Fifth Amendment precisely because a “‘vital’ purpose of 

personal-jurisdiction standards is to ‘ensure[] fairness to the defendant’” 

and “protect ‘the sovereign concerns of other nations’ whose courts might 

otherwise adjudicate the claims.” Id. at 55 (quoting Stabilisierungsfonds Fur 

Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 203 n.4 (D.C. Cir. 

1981) (per curiam)). Such considerations “weigh at least as heavily in the 

Fifth Amendment context” as they do in the Fourteenth Amendment 

context. Id. And not insignificantly, the court notes that “[a]pplying 

consistent personal-jurisdiction standards under the Fifth and Fourteenth 

Amendments is . . . easier to administer.” Id. at 55-56. 

 In the face of consistent authority from this and a large majority of the 

circuits, we decline to jury rig a novel personal jurisdiction test under the 

Fifth Amendment. We are not encouraged to do so because the Supreme 

Court has occasionally reserved deciding the question whether “the Fifth 

Amendment imposes the same restrictions on the exercise of personal 

jurisdiction by a federal court” as does the Fourteenth Amendment on state 

courts.26 See Bristol-Myers Squibb, 137 S. Ct. at 1784; Nicastro, 564 U.S. at 

885, 131 S. Ct. at 2790; Omni Capital, 484 U.S. at 102 n.5, 108 S. Ct. at 408 

n.5; Asahi, 480 U.S. at 113 n.*. Most recently, members of the Court seemed 

uncertain about the tried and true Fourteenth Amendment standards. See 

Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1032-33 (2021) 

(Alito, J., concurring); Id. at 1034-35, 1038 (Gorsuch, J., concurring). Far be 

26 It appears that the Court reserved only the predicate question whether it is 

appropriate under the Fifth Amendment to consider “national contacts, rather than . . . the 

contacts between the defendant and the State in which the federal court sits.” Asahi, 

480 U.S. at 113 n.* (emphasis added); see also Bristol-Myers Squibb, 137 S. Ct. at 1784 (citing 

Omni Capital, 484 U.S. at 102, n.5, which cites Asahi); Nicastro, 564 U.S. at 885, 131 S. Ct. 

at 2790 (citing Asahi, 480 U.S. at 113 n.*) (plurality); Omni Capital, 484 U.S. at 102 n.5, 

108 S. Ct. at 408 n.5 (citing Asahi, 480 U.S. at 113 n.*). No one here disputes the 

applicability of national contacts under the Fifth Amendment. 
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22 

it for this lower court to muddy the waters further on a critical issue that 

precedes litigation in every federal court. 

3. Rule 4(k)(2) is not rendered a nullity.

To support their proposed test, the plaintiffs contend that employing 

Fourteenth Amendment personal jurisdiction standards in the Fifth 

Amendment context renders Rule 4(k)(2) a nullity.27 The argument is both 

unpersuasive and belied by a formidable body of precedent. 

As already explained, Rule 4(k)(2) is a procedural rule governing the 

territorial limits of effective service. The Fifth Amendment due process 

limitations on a federal court’s exercising jurisdiction over a foreign 

defendant exist independently of Rule 4(k)(2) and are indeed contemplated 

by the Rule itself. Rendering an interpretation of the Fifth Amendment based 

on the effects that choice has on Rule 4(k)(2) would let the procedural tail 

wag the constitutional dog. 

More important, courts are routinely employing Fourteenth 

Amendment personal jurisdiction standards in the Fifth Amendment 

context, yet Rule 4(k)(2) cases involving specific personal jurisdiction have 

arisen and continue to arise with regularity. See, e.g., CGC Holding Co. v. 

Hutchens, 974 F.3d 1201 (10th Cir. 2020); Compania de Inversiones 

Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970 F.3d 

1269 (10th Cir. 2020); Plixer Int’l, Inc. v. Scrutinizer GmbH, 905 F.3d 1 (1st 

27 Although the plaintiffs do not say so explicitly, perhaps their argument is that 

adopting Daimler’s “at home” requirement would render Rule 4(k)(2) inapplicable in 

general personal jurisdiction cases. That might be true. But even so, it is hardly troubling 

that federal courts can rarely, if ever, exercise personal jurisdiction over foreign defendants 

in cases raising claims that do not “arise out of or relate to” their contacts with the United 

States. Cf. Daimler, 571 U.S. at 140-42, 134 S. Ct. at 762-63 (chastising Ninth Circuit for 

failing to give heed to the “risks to international comity its expansive view of general 

jurisdiction posed”). 
No. 20-30382 

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23 

Cir. 2018); M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda., 890 F.3d 995 

(Fed. Cir. 2018); Adams, 364 F.3d 646; ISI Int’l, Inc. v. Borden Ladner Gervais 

LLP, 256 F.3d 548 (7th Cir. 2001). The plaintiffs’ rhetoric fades in the face 

of reality. 

 4. No admiralty law exception exists.

At a minimum, the plaintiffs contend, this case warrants a 

more-indulgent personal jurisdiction standard because it involves admiralty 

claims and admiralty is special. Admiralty, they point out, is uniquely a 

creature of federal common law in addition to state and federal statutory law. 

Admiralty’s broad jurisdiction has been described as extending “to all acts 

and torts done upon the high seas, and within the ebb and flow of the sea.” 

2 Joseph Story, Commentaries on the Constitution of 

the United States 450, § 1665 (4th ed. 1873). Indeed, in no other 

context do courts “have complete jurisdiction over suits . . . between 

foreigners.” Langnes v. Green, 282 U.S. 531, 544, 51 S. Ct. 243, 248 (1931). 

The Fifth Circuit has long claimed expertise in and appreciation for 

admiralty’s tradition and peculiar jurisprudence, but shibboleths cannot 

carry the plaintiffs’ argument. In fact, there is no textual support in the Fifth 

Amendment for the plaintiffs’ proffered distinction and no case law favoring 

their theory. About an admiralty “exception” to principles of personal 

jurisdiction, no more need be said: The Due Process Clauses contain no 

exception. 

Further, plaintiffs’ historical argument misunderstands The 

Belgenland, 114 U.S. 355, 5 S. Ct. 860 (1885), on which they principally rely. 

In that case, a federal court adjudicated a dispute arising out of a collision on 

the high seas between a Norwegian ship and a Belgian ship. 114 U.S. at 356-

58, 5 S. Ct. at 860-61. The federal courts exercised in rem jurisdiction over 

the foreign ship, jurisdiction obtained because a U.S. marshal arrested the 
No. 20-30382 

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24 

vessel at port in the federal court’s district. 114 U.S. at 356, 5 S. Ct. at 860. 

Because a court’s jurisdiction over a ship arrested in its own district is 

unassailable, personal jurisdiction there was a nonissue. Cf. Burnham v. 

Superior Ct. of Cal., 495 U.S. 604, 619, 110 S. Ct. 2105, 2115 (1990) (plurality) 

(concluding that “jurisdiction based on physical presence alone constitutes 

due process because it is one of the continuing traditions of our legal system 

that define the due process standard of ‘traditional notions of fair play and 

substantial justice’”).28 The plaintiffs have confused personal jurisdiction 

with subject matter jurisdiction, which the Supreme Court discussed in The 

Belgenland. In sum, the plaintiffs’ proposed admiralty-exclusive extension of 

due process standards for personal jurisdiction standard is all wet. 

D. NYK is not amenable to jurisdiction in this dispute.

The foregoing discussion explains why the standards governing 

personal jurisdiction are essentially the same under the Fifth and Fourteenth 

Amendment Due Process Clauses. For federal claims filed in federal courts, 

of course, the relevant minimum contacts are those with the entire United 

States, not a forum state. The Fifth Amendment Due Process Clause 

immunizes a non-resident, non-consenting defendant against a federal 

court’s jurisdiction unless that defendant has “certain minimum contacts 

with [the United States] such that the maintenance of the suit does not offend 

‘traditional notions of fair play and substantial justice.’” Int’l Shoe, 326 U.S. 

at 316, 66 S. Ct. at 158. Whether a defendant has “minimum contacts” with 

a forum depends on the nature and extent of “the defendant’s relationship 

to the forum.” Bristol-Myers, 137 S. Ct. at 1779. The focus on the 

28 It is true that Pennoyer v. Neff, 95 U.S. 714 (1877), preceded The Belgenland by a 

few years and was the first case in which the Supreme Court linked personal jurisdiction 

with due process. As explained above, however, the latter case did not impinge on 

Pennoyer’s analysis. 
No. 20-30382 

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25 

defendant’s relationship with the forum underlies the general-specific 

jurisdiction dichotomy. See Goodyear, 564 U.S. at 919, 131 S. Ct. 2851. 

General jurisdiction is the sole avenue for exercising jurisdiction over 

NYK here, because that is the only theory argued to the district court.29 

General jurisdiction extends to “any and all” claims against the defendant 

concerning events and conduct anywhere in the world. Id. But that breadth 

comes with a reciprocal limit: “Only a select ‘set of affiliations with a forum’ 

will expose a defendant to such sweeping jurisdiction.” Ford Motor Co., 

141 S. Ct. at 1024 (quoting Daimler, 571 U.S. at 137, 134 S. Ct. at 760). 

Normally, a corporation is “at home” in its “place of incorporation and 

principal place of business.” Daimler, 571 U.S. at 137, 134 S. Ct. at 760. But 

in an “exceptional case . . . a corporation’s operations in a forum other than 

its formal place of incorporation or principal place of business may be so 

substantial and of such a nature as to render the corporation at home in [the 

United States].” Id. at 139 n.19. 

Exercising general jurisdiction over NYK does not comport with its 

Fifth Amendment due process rights. NYK is incorporated and 

headquartered in Japan. As a result, exercising general jurisdiction over 

NYK would require that its contacts with the United States “be so 

substantial and of such a nature to render [it] at home” in the United States. 

Daimler, 571 U.S. at 139 n.19, 134 S. Ct. at 761 n.19. Perkins v. Benguet 

Consolidated Mining Co., 342 U.S. 437, 72 S. Ct. 413 (1952) remains the 

lodestar for such exceptional circumstances. In Perkins, the defendant, 

29 In the district court, the plaintiffs made clear that they did “not contend that the 

Court has specific jurisdiction over NYK,” rather, they asserted that the court “has general 

jurisdiction over NYK.” To the extent plaintiffs contend for the first time in this court that 

the district court could exercise specific jurisdiction over NYK, their argument is waived. 

FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994). 
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26 

Benguet, was a Filipino corporation that operated gold and silver mines in the 

Philippines. Id. at 439. During World War II, Benguet’s president relocated 

to Ohio and ran the company’s operations from there. Id. at 447-48. Ohio 

state courts could exercise jurisdiction over Benguet because “Ohio was the 

corporation’s principal, if temporary, place of business.” Keeton v. Hustler 

Mag., Inc., 465 U.S. 770, 780 n.11, 104 S. Ct. 1473, 1481 n.11 (1984). 

Not so with NYK and the United States. No doubt NYK’s contacts 

with the United States are, in absolute terms, substantial. NYK ships call on 

at least fifty U.S. ports, and NYK even dedicates several ships exclusively to 

delivering cars between Japan and the United States. At one time, it operated 

twenty-seven shipping terminals and six air-cargo terminals in the United 

States.30 Overall, its North American entities generate about $1.47 billion in 

consolidated revenue every year.31

But determining whether a defendant’s contacts are “so substantial 

and of such a nature as to render the corporation at home” in the forum is an 

inherently comparative inquiry. Daimler, 571 U.S. at 139 nn.19, 20, 134 S. Ct. 

at 761-62 nn.19, 20. And comparatively, NYK’s contacts with the United 

States comprise only a minor portion of its worldwide contacts. As the 

district court recognized: “All of NYK Line’s high-level decision-making 

takes place in Japan, and port calls made to the United States represent just 

six to eight percent of all port calls made by NYK Line worldwide. 

30 NYK Group, Fact Book I 2017, 13-15 (Apr. 28, 2017), 

https://www.nyk.com/english/ir/library/fact/first/2017/__icsFiles/afieldfile/2019/10/

17/2017_factbook01_all.pdf (last visited Oct. 23, 2021). 

31 The plaintiffs also draw attention to the fact that NYK often litigates in federal 

court, pointing out that, over the last decade, NYK has filed at least thirty lawsuits in 

federal district courts, and that over thirty lawsuits were filed against NYK in federal 

district courts. That a particular corporate defendant frequently litigates in a forum’s 

courts also has no bearing on whether that defendant is essentially “at home” in the forum. 
No. 20-30382 

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27 

Furthermore, NYK Line’s American employees represent less than 1.5 

percent of all [its] employees.” Therefore, the United States is hardly “the 

center of [NYK’s] activities” or a “surrogate for [NYK’s] place of 

incorporation or head office.” Daimler, 571 U.S. at 130 n.8, 134 S. Ct. at 756 

n.8. The district court’s determinations are not clearly erroneous, nor did it 

apply the law incorrectly. Accordingly, NYK is not amenable to the general 

jurisdiction of American courts despite its contacts with the United States. 

IV. Conclusion

Seventy-six years ago, Justice Frankfurter opined that “[t]o suppose 

that ‘due process of law’ meant one thing in the Fifth Amendment and 

another in the Fourteenth is too frivolous to require elaborate rejection.” 

Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J., concurring). 

After considerable elaboration, this court confirms his intuition. We reject 

the plaintiffs’ invitation to craft an atextual, novel, and unprecedented Fifth 

Amendment personal jurisdiction standard. Under the Supreme Court’s 

reigning test for personal jurisdiction, the district court’s well-reasoned 

judgment absolving NYK from appearing in federal court is AFFIRMED.
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28 

James C. Ho, Circuit Judge, joined by Costa, Circuit Judge, concurring:

The Fifth Amendment provides that no person may be “deprived of 

life, liberty, or property, without due process of law.” U.S. Const. amend. 

V. Everyone agrees that this language applies only to the federal government, 

and that that’s why we have the Fourteenth Amendment—to ensure that the 

states too may not “deprive any person of life, liberty, or property, without 

due process of law.” U.S. Const. amend. XIV. 

There’s no denying the textual parallel between the Fifth and 

Fourteenth Amendments. That’s why the majority today understandably 

construes “due process of law” to mean the same thing under the Fifth and 

Fourteenth Amendments alike. 

Moreover, that approach is not only sensible as a textual matter—it 

also makes for a simpler body of federal constitutional law. Our legal system 

is already complex enough for litigants and lawyers, without additionally 

forcing people to navigate two distinct bodies of federal constitutional rights, 

depending on who’s on the right side of the “v.” 

Accordingly, the majority reasonably holds—as has every other 

circuit to have addressed the issue—that, when faced with a Fifth 

Amendment question concerning personal jurisdiction, we apply Fourteenth 

Amendment precedent governing personal jurisdiction. 

The lead dissent responds that the meaning of words can change over 

time. See post, at 43–44, 63 (Elrod, J., dissenting). As it correctly notes, the 

Fifth Amendment was ratified in 1791—while the Fourteenth Amendment 

was not ratified until 1868, three quarters of a century later. So the lead 

dissent suggests that, whatever “due process” may have meant in 1868, 

fidelity to original public meaning requires us to separately inquire whether 

“due process” may have meant something different in 1791. 
No. 20-30382 

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29 

That’s fair enough, as an intellectual matter. But in fairness to the 

majority, the lead dissent does not point to a single Supreme Court decision 

holding that we should interpret Fifth Amendment due process differently 

from Fourteenth Amendment due process. 

It simply says that the Supreme Court has reserved the issue. See post,

at 43 (Elrod, J., dissenting) (citing French v. Barber Asphalt Pav. Co., 181 U.S. 

324, 328 (1901)). For example, it points out that a majority of the Supreme 

Court once noted the possibility that a situation “may arise” in which it 

“may be proper” to construe the Fifth and Fourteenth Amendments 

differently. French, 181 U.S. at 328. 

But French was issued before the Court embraced the doctrine of 

incorporation. I write separately to explain how the Supreme Court’s 

approach to incorporation is hard to square as a logical matter with the lead 

dissent’s theory of linguistic drift under the Due Process Clause. 

I. 

Under the doctrine of incorporation, the Supreme Court has 

repeatedly held that we should interpret the Due Process Clause of the 

Fourteenth Amendment coextensively with a number of the provisions 

contained in the Bill of Rights. As a result, when it comes to rights that are 

incorporated against the states by the Due Process Clause, we apply the same 

body of law to the states that we do to the federal government. 

The Supreme Court most recently reaffirmed these principles in the 

context of the Second Amendment right to keep and bear arms. Like the 

Fifth Amendment, “[t]he Second Amendment was adopted in 1791; the 

Fourteenth in 1868.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, _ U.S. _, 

_ (2022). “For decades, the Supreme Court has referred to the Second 

Amendment as a fundamental civil right, comparable to other provisions of 

the Bill of Rights.” Mance v. Sessions, 896 F.3d 390, 398 (5th Cir. 2018) (Ho, 
No. 20-30382 

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30 

J., dissenting from denial of rehearing en banc) (citing, e.g., Johnson v. 

Eisentrager, 339 U.S. 763, 784 (1950)). 

Yet everyone agrees that the Second Amendment, like the Fifth 

Amendment, applies only to the federal government—hence the Fourteenth 

Amendment, which the Supreme Court has interpreted to apply fundamental 

rights like the Second Amendment to the states. See McDonald v. City of 

Chicago, 561 U.S. 742 (2010). 

But if the Second Amendment is just like the Fifth Amendment—

because both provisions precede the ratification of the Fourteenth 

Amendment by 77 years—does that mean that the right to keep and bear arms 

might apply differently to the United States than to the several states? 

The Supreme Court has repeatedly held that the answer is no: “Bill 

of Rights protections” like the Second Amendment must “be enforced 

against the States under the Fourteenth Amendment according to the same 

standards that protect those personal rights against federal encroachment.” 

McDonald, 561 U.S. at 765 (cleaned up) (emphasis added). See also N.Y. State 

Rifle, _ U.S. at _ (same). 

There is, to be sure, a “scholarly debate” over whether courts should 

look to “the prevailing understanding of an individual right when the 

Fourteenth Amendment was ratified in 1868” or “the public understanding 

of the right when the Bill of Rights was adopted in 1791” when determining 

the scope of constitutional rights. Id. at _. 

But the Supreme Court has held on numerous occasions that, whether 

we define the right as it existed in 1791 or in 1868, the right is the same against 

the federal government and the states alike. “[W]e have made clear that 

individual rights enumerated in the Bill of Rights and made applicable against 

the States through the Fourteenth Amendment have the same scope as against 

the Federal Government.” Id. (emphasis added). 
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The Court cited several examples where it has taken that approach. 

See, e.g., Ramos v. Louisiana, 590 U.S. _, _ (2020) (“This Court has long 

explained . . . that incorporated provisions of the Bill of Rights bear the same 

content when asserted against States as they do when asserted against the 

federal government.”) (emphasis added); Timbs v. Indiana, 586 U.S. _, _ 

(2019) (“[I]f a Bill of Rights protection is incorporated, there is no daylight

between the federal and state conduct it prohibits or requires.”) (emphasis 

added); Malloy v. Hogan, 378 U.S. 1, 10–11 (1964) (“The Court thus has 

rejected the notion that the Fourteenth Amendment applies to the States 

only a watered-down, subjective version of the individual guarantees of the 

Bill of Rights.”) (quotations omitted). 

To this list of examples, I’ll add one more. The Court has decided 

various challenges to state abortion laws—including the partial birth abortion 

law that it held unconstitutional in Stenberg v. Carhart, 530 U.S. 914 (2000). 

In Gonzales v. Carhart, 550 U.S. 124 (2007), the Court addressed a 

constitutional objection to the federal Partial Birth Abortion Act. 

Tellingly, the United States government did not even try to defend—

and the Court did not uphold—the federal Partial Birth Abortion Act on the 

ground that Fifth Amendment due process is different from Fourteenth 

Amendment due process. Not a single justice even flagged it as a potential 

issue. Justice Thomas wrote separately to reaffirm his longstanding view that 

“the Court’s abortion jurisprudence . . . has no basis in the Constitution” 

without attempting to draw any distinction between the Fifth and Fourteenth 

Amendments (as well as to ask, without deciding, whether the Act is allowed 

under the Commerce Clause). Id. at 168–69 (Thomas, J., concurring).1

1

 Nor was the argument presented by any of the parties in Carhart. The argument 

was made only by amicus, and only in the court of appeals, which rejected the argument on 

the merits. See Carhart v. Gonzales, 413 F.3d 791, 795 n.2 (8th Cir. 2005) (“One amicus 
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II. 

I see logical difficulties in squaring the dissenters’ theory of linguistic 

drift with the Supreme Court’s longstanding incorporation jurisprudence. 

To be sure, I’m all for following the text and original understanding of 

the Constitution to the maximum extent permitted by a faithful reading of 

Supreme Court precedent, as I’ve repeatedly noted. See, e.g., Williams v. 

Taylor Seidenbach, Inc., 958 F.3d 341, 350 (5th Cir. 2020) (en banc) (Ho, J., 

concurring); Texas v. Rettig, 993 F.3d 408, 409, 417–18 (5th Cir. 2021) (Ho, 

J., dissenting from denial of rehearing en banc); Williams v. Homeland Ins. 

Co., 18 F.4th 806, 818–19 (5th Cir. 2021) (Ho, J., concurring). And 

reasonable minds can debate in good faith the Supreme Court’s personal 

jurisdiction precedent, and ask whether it is faithful to the original 

understanding of the Constitution. Cf. Ford Motor Co. v. Mont. Eighth Jud. 

Dist. Ct., 592 U.S. _, _ & n.2 (2021) (Gorsuch, J., concurring) (citing 

differing views). 

But the members of this court all agree that fidelity to Supreme Court 

precedent must trump fidelity to text and original public meaning. And that 

means reading precedent faithfully. “Lower court judges don’t have license 

to adopt a cramped reading of a case in order to functionally overrule it.” 

NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron 

Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, 

J., dissenting from denial of rehearing en banc) (quotations omitted). See also

suggests Stenberg does not control because that case was decided under the Fourteenth 

Amendment, which, of course, does not apply to the federal government. While Stenberg

was indeed a Fourteenth Amendment case, the Due Process Clause of the Fifth 

Amendment is textually identical to the Due Process Clause of the Fourteenth 

Amendment, and both proscribe virtually identical governmental conduct.”) (citing 

Malloy, 378 U.S. at 8). The amicus declined to reprise the argument in the Supreme Court. 
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Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU 

J.L. & Liberty 44, 51 (2019) (“Of course, judges can always draw razorthin distinctions and contend that a particular issue is not governed by a nonoriginalist precedent. But judges should resist this temptation.”). “[L]ogic 

[may] demand[] that we extend an [allegedly] atextual body of precedent in 

order to preserve rationality or consistency in the law.” Williams, 18 F.4th 

at 821 (Ho, J., concurring). 

Under the doctrine of incorporation, the Supreme Court has 

repeatedly instructed that we must interpret the Due Process Clause of the 

Fourteenth Amendment coextensively with various provisions of the Bill of 

Rights. And therein lies the logical challenge I see with the dissent’s 

proposed framework. For if we accept the dissenters’ theory of linguistic 

drift when it comes to due process, logic would presumably require that we 

entertain the possibility of linguistic drift in every aspect of due process. 

For example, what does the First Amendment require when it comes 

to the states? Well, we know the First Amendment might have meant one 

thing in 1791, but something quite different in 1868. And so too with the 

Second Amendment, the Fourth Amendment, the Eighth Amendment, and 

so on. 

So presumably the dissenters would apply a different body of First 

Amendment law, Second Amendment law, and so on, to the states as 

opposed to the federal government, in recognition of the possibility of 

linguistic drift between 1791 and 1868. 

But we don’t do that. Because the Supreme Court has told us we can’t 

do that—most recently, in N.Y. State Rifle. 

And that’s the logical problem I see with the dissent’s approach. If 

Supreme Court precedent requires us to apply the same standard of “due 

process” to the states and the federal government when it comes to other
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constitutional rights like the First and Second Amendments, what’s the logic 

in applying different standards when it comes to due process itself? 

If we’re being principled about linguistic drift, we presumably 

wouldn’t limit it to just the Fifth Amendment—or just the Due Process 

Clause of the Fifth Amendment. We would either allow for linguistic drift 

with respect to every provision of the Bill of Rights—or to none of them. 

To my mind, logical fidelity to Supreme Court precedent would seem 

to suggest that the answer must be none. 

III. 

In response, the lead dissent says that “due process” is different 

inasmuch as, unlike the incorporated provisions, it’s actually codified in the 

text of the Fourteenth Amendment. See post, at 45–46 n.4 (Elrod, J., 

dissenting). 

That’s obviously true as far as it goes: due process explicitly appears 

in the text of the Fourteenth Amendment, while the incorporated provisions 

are implicit in due process by operation of Supreme Court precedent. 

But why should that matter? The dissent doesn’t explain. And it’s 

hard to understand, especially considering that Supreme Court precedent 

essentially directs us to act as if the words of the First Amendment, the 

Second Amendment, and so on appear alongside the Due Process Clause in 

the Fourteenth Amendment. See, e.g., McDonald, 561 U.S. at 791 (“[A] 

provision of the Bill of Rights that protects a right that is fundamental from 

an American perspective applies equally to the Federal Government and the 

States. We therefore hold that the Due Process Clause of the Fourteenth 

Amendment incorporates the Second Amendment.”) (citation omitted). 

Moreover, the dissent’s logic, if anything, gets things exactly 

backwards. The Fifth and Fourteenth Amendment Due Process Clauses use 
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the same words—and so that’s the reason we should apply different

standards? It’s a curious way to split the baby. 

Nor do I understand what the dissent hopes to accomplish by drawing 

a distinction between “reverse” versus “plain-vanilla” incorporation. See 

post, at 45 n.4 (Elrod, J., dissenting). I’ll just sum things up this way: 

Everyone agrees that both the federal government and the states are subject 

to due process. And everyone agrees that this includes not only due process 

qua due process, but also various other provisions in the Bill of Rights. The 

only disagreement is whether we should apply the same legal standards under 

various provisions in the Bill of Rights—except for “due process” itself. If 

there’s a case for applying one body of law when it comes to all the provisions 

that due process incorporates, but two bodies of law when it comes to due 

process itself, I’m not sure what it is, and I’m not sure that the dissenters 

have made it. 

IV. 

As for Judge Oldham’s solo dissent, I’ll begin by noting where we 

substantially agree. Like me, Judge Oldham makes clear that he does not 

endorse the lead dissent’s theory of linguistic drift. See post, at 101 (Oldham, 

J., dissenting). Like me, Judge Oldham does not say that there are two 

distinct bodies of due process law, one that governs the states and another 

that governs the federal government. Rather, he suggests that “none of the 

personal-jurisdiction limits—for any government, state or federal—come 

from the Fifth or Fourteenth Amendments,” but rather, “[t]hey instead 

come from the common law.” Id. at 102–03 n.1. 

So we agree that there is one body of due process law, not two. Here’s 

where we part company, then: If we’re agreed that there’s only a single body 

of due process law, then I don’t see how we can ignore Supreme Court 

precedent under Fourteenth Amendment due process in a case involving 
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Fifth Amendment due process. And that’s where my reference to the 

doctrine of incorporation comes in. 

Judge Oldham dismisses my invocation of the incorporation doctrine 

on the ground that that is a doctrine of substantive due process—whereas 

this is a personal jurisdiction case, which implicates procedural due process. 

See id. at 102. He makes the same observation about the judicially-created 

right to abortion examined in Carhart. See id. at 103. 

 He’s of course entirely right that both the incorporation doctrine 

generally, and abortion in particular, are creatures of substantive due process. 

But I don’t see why the substantive/procedural due process distinction 

should make any difference here. 

To explain why, let me first summarize his core argument. It proceeds 

like this: “The Supreme Court has confessed that its Fourteenth 

Amendment personal jurisdiction precedents do not rest on original public 

meaning.” Id. at 102. Accordingly, he concludes, as originalists, we’re 

allowed to ignore that body of law, which applies only to states, when it comes 

to Fifth Amendment cases, which involve the federal government. Id.

My response is that that is the opposite of what we do under the 

doctrine of incorporation—where we apply the same body of law to the states 

and the federal government. 

It’s also the opposite of what happened in Carhart. Just like the 

Court’s personal jurisdiction precedents, the Supreme Court’s abortion 

precedents “do not rest on original public meaning” (at least not before 

Dobbs). Id. Yet, as I point out, the federal government did not even bother 

to argue in Carhart that it can ignore the Court’s Fourteenth Amendment 

abortion law when it comes to Fifth Amendment cases. 
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Yes, those examples come from substantive due process—whereas 

this case involves procedural due process. But I’m not sure why we would 

apply one approach to precedent in substantive due process cases (follow the 

14th when it comes to the 5th), and precisely the opposite approach to 

precedent in procedural due process cases (ignore the 14th when it comes to 

the 5th). I would have thought that our duty to be faithful to Supreme Court 

precedent doesn’t wax and wane depending on which underlying body of law 

the precedent entails. 

Finally, in a footnote, Judge Oldham notes that the Supreme Court 

has repeatedly declined to address the question of divergence in personal 

jurisdiction cases even after it started incorporating various other provisions. 

See id. at 103 n.2. Again, that’s true, I just don’t know what it proves. The 

Supreme Court ordinarily does not weigh in on issues absent a circuit split. 

And here, there is none—every circuit to have addressed the issue has 

rejected the theory of divergence when it comes to personal jurisdiction. 

V. 

One final concern before I close: Embracing the linguistic drift theory 

urged by the lead dissent would involve an additional layer of complication—

the launching of an unprecedented second body of substantive federal 

constitutional law. 

Of course, if text and original understanding compel complexity, then 

complexity we shall give. But all things equal, we should endeavor to make 

the law simpler, not more byzantine. 

Perhaps the Supreme Court will someday switch gears and embrace 

the dissent’s view that due process under the Fifth Amendment is indeed 

different from due process under the Fourteenth Amendment. Perhaps the 

Court will one day hold that fidelity to text and original public meaning 
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necessitates the complexity of developing two distinct bodies of federal 

constitutional rights—one against the feds and one against the states. 

But until then, I will stick with the simplicity of the approach adopted 

by the majority of my colleagues—not to mention all of the circuits that have 

previously addressed the issue. I concur.
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Jennifer Walker Elrod, Circuit Judge, joined by Graves, 

Higginson, Willett, and Oldham, Circuit Judges, dissenting:*

The majority today holds that the Fifth Amendment’s Due Process 

Clause “immunizes” from suit in federal court a multinational corporation 

with extensive business dealings in the United States and which litigates here 

frequently as a plaintiff. Defendant–Appellee Nippon Yusen Kabushiki 

Kaisha (“NYK”), an international shipping conglomerate, calls regularly on 

American ports, operates numerous shipping terminals here, and reaps 

hundreds of millions of dollars in annual revenue in so doing. In the course 

of its substantial business here, NYK has invoked the power of our federal 

courts to protect its rights as a plaintiff over seventy-five times. But today, the 

en banc court holds that it would “offend ‘traditional notions of fair play and 

substantial justice’” for injured United States servicemen and bereaved 

military families to sue NYK in United States federal court. 

Today’s result is as needless as it is confounding: The majority 

opinion fails to prove—as a matter of the Fifth Amendment’s text, history, 

and structure—the existence of a principled limit on Congress’s ability to 

authorize federal courts’ personal jurisdiction over a foreign defendant. 

Relying entirely on inapposite Fourteenth Amendment precedent, the 

majority opinion arrives at a conclusion that will nullify Federal Rule of Civil 

Procedure 4(k)(2) in most of its applications, crush the chances of American 

terror victims seeking recovery in federal court, and, quite anomalously, 

afford foreign civil defendants greater due process protection than foreign 

criminal defendants. 

*

 Judge Higginson joins Part VI of this opinion. Judge Oldham joins Parts II.B and 

VI of this opinion. 
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Because the Fifth Amendment’s Due Process Clause does not shield 

NYK from suit in United States federal court, I would hold that the district 

court has personal jurisdiction in this case. I respectfully dissent.

I. 

The ACX Crystal, a foreign cargo ship, crashed into the U.S.S. 

Fitzgerald, a U.S. Navy destroyer, in Japanese waters. Seven sailors were 

killed. Forty were injured. Seeking damages under admiralty law and the 

Death on the High Seas Act, the bereaved and injured sued NYK, the foreign 

shipping company that chartered the vessel, in federal court. 

In both cases consolidated before us on appeal, NYK sought and the 

district court granted dismissal for lack of personal jurisdiction. The injured 

Navy sailors and bereaved families appealed. They argued that the Fifth 

rather than Fourteenth Amendment governed the extent of federal courts’ 

personal jurisdiction over foreign defendants pursuant to Federal Rule of 

Civil Procedure 4(k)(2). And the Supreme Court’s Fourteenth Amendment 

personal jurisdiction precedents, they argued cogently, neither bind us nor 

should be imported into the Fifth Amendment context.

Bound by a prior panel opinion, Patterson v. Aker Solutions, Inc., 826 

F.3d 231 (5th Cir. 2016), this court affirmed, in keeping with the rule of 

orderliness. Douglass v. Nippon Yusen Kabushiki Kaisha, 996 F.3d 289, 297–

300 (5th Cir. 2021). Without discussion of the relevant differences between 

the Constitution’s due process clauses, Patterson had applied recent Supreme 

Court precedents from the Fourteenth Amendment context to a Fifth 

Amendment case. Patterson, 826 F.3d at 234. The panel in this case noted 

that it was constrained to do the same. But it added that, absent Patterson, 

plaintiffs–appellants’ position was “persuasive,” and indeed, “ha[d] merit.” 

Douglass, 996 F.3d at 293–97. 
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Two panel members specially concurred. Id. at 300–02 (Elrod, J., 

joined by Willett, J., specially concurring). The concurrence “agree[d] with 

the majority opinion that the case would be decided differently if we were not 

bound by Patterson,” and called all hands on deck to reevaluate our 

precedent. Id. Several important considerations counseled in favor of 

“apply[ing] a jurisdictional framework that distinguishes between Fifth 

Amendment and Fourteenth Amendment due process standards.” Id. at 

301. For one thing, “the federalism concerns that animate the Supreme 

Court’s jurisprudence on the jurisdictional limitations of the Fourteenth 

Amendment’s Due Process Clause are irrelevant in the Fifth Amendment 

context.” Id. We further warned against “imposing restraints on federal 

courts’ exercise of personal jurisdiction (and . . . Congress’s ability to 

authorize jurisdiction by statute) beyond what the Constitution requires.” 

Id. With these concerns in mind, we invited the court to take a different tack 

en banc. 

The full court accepted our invitation to reconsider the propriety of 

applying the Supreme Court’s Fourteenth Amendment precedents in the 

Fifth Amendment context. But today the majority opinion declines to chart 

a new course, leaving our precedent at sea and the plaintiffs high and dry. 

II. 

What does the Due Process Clause of the Fifth Amendment have to 

say about personal jurisdiction? 

Our circuit’s precedents are awash with confusion: On the one hand, 

we have made clear that the Fifth Amendment—and not the Fourteenth 

Amendment—governs due process challenges to federal courts’ exercise of 

jurisdiction over foreign defendants pursuant to Rule 4(k)(2). See, e.g., 

Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 420 (5th 

Cir. 2001) (“The due process required in federal cases governed by Rule 
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4(k)(2) is measured with reference to the Fifth Amendment, rather than the 

Fourteenth Amendment.”). On the other hand, our Rule 4(k)(2) personal 

jurisdiction cases have generally tracked Supreme Court case law from the 

Fourteenth Amendment context. See, e.g., Adams v. Unione Mediterranea Di 

Sicurta, 364 F.3d 646, 652 (5th Cir. 2004) (citing Fourteenth Amendment 

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

U.S. 408 (1984), and World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 

(1980)); Patterson, 826 F.3d at 234 (applying Daimler AG v. Bauman, 571 U.S. 

117 (2014)). 

Left entirely unexplained is why we have silently imported Fourteenth 

Amendment jurisprudence into our Fifth Amendment cases. We have 

assumed, without argument, that the Fifth and Fourteenth Amendment Due 

Process Clauses operate in exactly the same manner vis-à-vis personal 

jurisdiction. See, e.g., Patterson, 826 F.3d at 234 (providing no explanation 

for the case’s application of the latest Fourteenth Amendment precedents 

from the Supreme Court in ruling on a Fifth Amendment question); World 

Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d 717, 723–24 (5th Cir. 

1996) (applying, without explanation, the “now familiar [Fourteenth 

Amendment] minimum contacts analysis” in a Rule 4(k)(2) personal 

jurisdiction case, without even mentioning the Fifth Amendment once). But 

this unspoken assumption is unsound. The Fifth Amendment does not 

merely carry Fourteenth Amendment ballast. It has its own text, history, and 

structural implications. Its Due Process Clause need not parrot what the 

Supreme Court has said about the Fourteenth’s. 

Perhaps our court has considered the relationship between the Fifth 

and Fourteenth Amendment Due Process Clauses too obvious to require 

argument. The majority opinion implies as much with its concluding 

quotation from Justice Frankfurter’s solo concurrence in Malinski v. New 

York, 324 U.S. 401 (1945): “To suppose that ‘due process of law’ meant one 
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thing in the Fifth Amendment and another in the Fourteenth is too frivolous 

to require elaborate rejection.” Id. at 415 (Frankfurter, J., concurring); ante

at 27. A six-justice majority of the Supreme Court, however, has taken a 

different view, writing: “[A]s the[] [Fifth and Fourteenth Amendments] 

were ingrafted upon the Constitution at different times and in widely 

different circumstances of our national life, it may be that questions may arise 

in which different constructions and applications of their provisions may be 

proper.” French v. Barber Asphalt Pav. Co., 181 U.S. 324, 328 (1901);1 see also

Wight v. Davidson, 181 U.S. 371, 384 (1901) (“[I]t by no means necessarily 

follows that a long and consistent construction put upon the 5th Amendment 

[Due Process Clause] . . . is to be deemed overruled by a decision concerning 

the operation of the 14th Amendment as controlling state legislation.”); 

Carroll v. Greenwich Ins. Co. of N.Y., 199 U.S. 401, 410 (1905) (Holmes, J.) 

(refusing to “affirm that in no instance could a distinction [between the 

amendments] be taken”). 

The relationship between the amendments’ Due Process Clauses and 

the limits of federal courts’ personal jurisdiction clearly merits “considerable 

elaboration.” Ante at 27. Far from frivolous, this thorny topic has launched 

more than a few law review articles.2

 Indeed, the latest originalist scholarship 

strongly suggests that “‘due process of law’ has undergone linguistic drift.” 

Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of 

1 Contra French, 181 U.S. at 355 (Harlan, J., dissenting) (“[D]ue process of law 

cannot mean one thing under the 5th Amendment and another thing under the 14th 

Amendment, the words used being the same in each amendment.”). 

2

 For just a small sampling, see generally, e.g., Stephen E. Sachs, The Unlimited 

Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020); Jonathan Remy Nash, 

National Personal Jurisdiction, 68 Emory L.J. 509 (2019); Wendy Perdue, Aliens, the 

Internet, and “Purposeful Availment”: A Reassessment of Fifth Amendment Limits on Personal 

Jurisdiction, 98 Nw. U. L. Rev. 455 (2004); see also Stephen E. Sachs, Pennoyer Was Right, 

95 Tex. L. Rev. 1249 (2017). 
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Law” in the Fifth Amendment, 108 Va. L. Rev. 447, 453 (2022). That is, “its 

meaning has changed since the First Congress proposed [the Fifth 

Amendment] for ratification” in 1789, and before the 39th Congress 

proposed the Fourteenth Amendment in 1866. Id. at 453, 461–524 

(examining a wide array of primary sources and conducting rigorous 

historical and corpus-linguistics analysis). Thus, it is quite reasonable to 

think that the original public meaning of the Fifth Amendment’s Due Process 

Clause diverges from the Fourteenth Amendment’s as it bears upon personal 

jurisdiction—particularly given the interstate-federalism principles baked 

into the Fourteenth Amendment.3

The Supreme Court itself has specifically flagged and repeatedly 

reserved the question before us for another day. See, e.g., Bristol-Myers Squibb 

Co. v. Sup. Ct. of Cal., S.F. Cnty., 137 S. Ct. 1773, 1783–84 (2017) (“[S]ince 

our decision concerns the due process limits on the exercise of specific 

jurisdiction by a State, we leave open the question whether the Fifth 

Amendment imposes the same restrictions on the exercise of personal 

3

 The concurring opinion readily acknowledges the theoretical possibility of 

linguistic drift over time. Ante at 28 (Ho, J., concurring). Although my concurring 

colleague comes to a different conclusion, he recognizes that it is “fair enough, as an 

intellectual matter” to account for linguistic drift in discerning constitutional provisions’ 

original public meanings. Id. at 29. Our disagreement flows not from our judicial 

philosophies but from our divergent good-faith readings of Supreme Court precedent. See, 

e.g., infra n.4. 

Relatedly, the concurring opinion expresses an additional concern that this theory 

of linguistic drift would introduce “an additional layer of complication” in federal 

constitutional law—and “all things equal, we should endeavor to make the law simpler, not 

more byzantine.” Ante at 37 (Ho, J., concurring) (emphasis added). We ought not opt for 

Occam over originalism. The concurring opinion agrees. Id. (“Of course, if text and 

original understanding compel complexity, then complexity we shall give.”). But ceteris 

paribus, simplicity would weigh in favor of fewer limits on personal jurisdiction, not more. 

And that simpler result aligns with the original meaning of the Fifth Amendment’s Due 

Process Clause. See infra n.35. 
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jurisdiction by a federal court.”); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 

873, 885 (2011) (plurality op.) (noting that it was unnecessary “to address . . . 

any constitutional concerns that might be attendant” to more expansive 

federal court exercises of personal jurisdiction over foreign defendants); post

at 96 (Higginson, J., dissenting).4

 

4 See also, e.g., Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 102 

n.5 (1987) (stating that the Court had no occasion to address the Fifth Amendment’s 

applicability to personal jurisdiction); Asahi Metal Indus. Co. v. Superior Ct. of Cal., Solano 

Cnty., 480 U.S. 102, 113 n.* (1987) (same). 

In the face of the Supreme Court’s repeated reservation of this question for a future 

case, the concurring opinion claims that the Court has already answered it. Ante at 29–31 

(Ho, J., concurring). It has not. 

The concurrence first relies on the Court’s statements about incorporation 

doctrine. The argument seems to go like this: (A) the Supreme Court has held that 

“incorporated provisions of the Bill of Rights bear the same content when asserted against 

States as they do when asserted against the federal government,” id. at 31 (quoting Ramos 

v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (emphasis omitted)); (B) the Fourteenth 

Amendment’s Due Process Clause incorporates the Fifth Amendment’s Due Process 

Clause against the states; thus, the concurrence concludes, (C) any Fifth Amendment 

rights vis-à-vis personal jurisdiction must “bear the same content” as those under the 

Fourteenth Amendment’s Due Process Clause, id. at 29–31. 

There are at least two problems with this argument. First, it turns incorporation 

doctrine upside-down. This case is actually about reverse incorporation—that is, reading 

(newer) Fourteenth Amendment jurisprudence into the (older) Fifth Amendment Due 

Process Clause, rather than vice versa. And none of the concurrence’s plain-vanilla 

incorporation cases suggest we must—or even should—transplant the Supreme Court’s 

personal jurisdiction doctrine from the Fourteenth Amendment into the Fifth 

Amendment. Second, it is hardly obvious that the Fifth Amendment’s Due Process Clause 

is “just like” the Second Amendment or any other provision in the Bill of Rights vis-à-vis 

incorporation. Id. at 30. With due process, the Amenders did something special: they gave 

the Fourteenth Amendment its own Due Process Clause. So, the Fifth Amendment’s Due 

Process Clause never needed to be “incorporated” through the Fourteenth Amendment’s 

Due Process Clause. The former never needed to pass through the latter’s lens to be 

refracted against the states. The Fourteenth Amendment’s Due Process Clause already

applied to the states directly. For that reason, it does not follow that the scope of the rights 

protected by the two clauses must bear the same content. Incidentally, this also explains 

why linguistic drift is relevant only to the Fifth Amendment context—and thus why we 
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In my view, it is precisely our duty as an inferior court to percolate the 

arguments raised by this novel constitutional issue for eventual Supreme 

Court review. Cf. Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 

(2020) (Gorsuch, J., concurring in grant of stay) (noting that the percolation 

“process that permits the airing of competing views . . . aids this Court’s own 

decisionmaking process”); Box v. Planned Parenthood of Ind. & Ky., Inc., 139 

S. Ct. 1780, 1784 (2019) (Thomas, J., concurring) (“[F]urther percolation 

may assist our review of [an] issue of first impression . . . .”). We are asked 

in this case to interpret the Fifth Amendment’s Due Process Clause with 

respect to federal court personal jurisdiction—a question of first impression 

that the Supreme Court has repeatedly declined to answer. And when we are 

called to interpret a constitutional provision without on-point Supreme 

Court guidance, we should look first to the Constitution’s text, history, and 

structure before we borrow freely from adjacent Supreme Court 

jurisprudence.5

would not “apply a different body of First Amendment law, Second Amendment law, and 

so on, to the states as opposed to the federal government.” See id. at 33. 

In support of its view, the concurring opinion also points to Gonzales v. Carhart, 

550 U.S. 124 (2007), where the Court upheld a federal-law abortion restriction without 

considering whether the Fifth Amendment’s Due Process Clause creates a different 

framework than the Fourteenth Amendment’s when it comes to abortion jurisprudence. 

See ante at 31 (Ho, J., concurring). Carhart is wholly inapposite. No scholar, litigant, or 

jurist had offered any plausible reason to think that the original public meaning of the Fifth 

and Fourteenth Amendments differed as to the permissibility of abortion restrictions. Here 

by contrast, as multiple scholars have explained in detail, the Fifth and Fourteenth 

Amendments had distinct original understandings when it came to the jurisdictional 

restrictions they imposed on federal and state courts, respectively. See, e.g., Sachs, 

Unlimited Jurisdiction, supra, at 1708–09, 1710–27. The non-discussion of an irrelevant 

question in an unrelated case does not prevent us from reaching the right answer to a 

constitutional question that the Supreme Court has expressly left open. 

5 Cf. Antonin Scalia, Common Law Courts in a Civil-Law System in A Matter of 

Interpretation 39 (1997) (disapprovingly describing constitutional analysis that takes as its 

“starting point” Supreme Court case law and thus removes from focus the Constitution’s 
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We are bound to apply controlling law as it stands. In this case, there 

is no controlling Supreme Court precedent. What controls is the Fifth 

Amendment Due Process Clause. If the en banc majority is convinced that 

the Fifth Amendment Due Process Clause, as originally understood, imposes 

the same set of jurisdictional rules that the Supreme Court has decreed 

pursuant to the Fourteenth Amendment, then it bears the burden of proving 

that with reference to the Fifth Amendment’s text, history, and structure. 

The majority opinion has made no such effort. See ante at 7 n.8. It fails to 

meet its burden from the very get-go.6

 Indeed, the majority opinion could 

“original text and understanding”); Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. 

Ct. 1017, 1036 n.2 (2021) (Gorsuch, J., concurring in the judgment) (indicating that “the 

right question” to be asking in Fourteenth Amendment personal jurisdiction context is 

“what the Constitution as originally understood requires”). 

Both parties in this case ask us to take as our “starting point” Supreme Court 

personal jurisdiction case law from the Fourteenth Amendment context. Appellees 

vigorously contend that Fourteenth Amendment personal jurisdiction case law, 

particularly Daimler, 571 U.S. 117, controls our interpretation of the Fifth Amendment’s 

Due Process Clause in this case. Meanwhile, appellants argue that Fourteenth Amendment 

case law does not bind us in the Fifth Amendment context; but they nonetheless ask us to 

kick off our analysis with International Shoe Co. v. Washington, 326 U.S. 310 (1945), while 

refraining from relying on its progeny. I disagree with both approaches because both start 

not with the Fifth Amendment but with inapplicable Fourteenth Amendment case law. 

Thus, I agree with the majority opinion that we ought to “reject the plaintiffs’ 

invitation to craft an atextual, novel, and unprecedented Fifth Amendment personal 

jurisdiction standard” that is not founded upon the amendment’s original understanding. 

Ante at 27. But, as I explain in this dissent, we also ought to reject NYK’s invitation to 

calcify our current Fifth Amendment precedents, which erroneously import Fourteenth 

Amendment Supreme Court jurisprudence. 

6

 The majority opinion’s footnoted response to this dissent is unresponsive on this 

score: Lacking Supreme Court case law restricting federal courts’ exercise of personal 

jurisdiction under the Fifth Amendment, NYK must convince us, as a matter of text, 

history, and structure, that the Fifth Amendment’s Due Process Clause merely mimes the 

Fourteenth’s as to personal jurisdiction. But NYK has made no such argument, and nor 

has the majority opinion. See ante at 7 n.8. 
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In fact, the majority opinion expressly refuses to engage with the contrary 

arguments presented in this dissent, declining to address anything but “the exact arguments 

raised by the plaintiffs.” Id. (emphasis added). Respectfully, I do not think our approach 

should be so blinkered. Of course we take cases as they are presented to us, but that does 

not mean that we must parrot parties’ “exact” views in our opinions. Our duty is to resolve 

the appeal correctly and offer our independent explanation of the bases for our decision. See

United States v. Brace, 145 F.3d 247, 267 (5th Cir. 1998) (en banc) (DeMoss, J., 

dissenting) (“To refrain from independent analysis is to abdicate the essential function of 

judging. . . . Just as we do not abdicate our judicial responsibilities and blindly accept the 

parties’ stipulations, neither do we don blinders and confine our consideration to those 

legal doctrines that are presented by the parties.”). 

More to the point, however, plaintiffs-appellants themselves raised all the 

arguments necessary to succeed here on appeal: Although neither they nor their amici

ground their proposed ‘national contacts’ test in the original understanding of the Fifth 

Amendment, they did argue—quite correctly—that Fifth Amendment personal 

jurisdiction standards are not dictated by Fourteenth Amendment jurisprudence. See

Appellants’ En Banc Br. 18–20, 18 n.5 (citing, inter alia, Sachs, Unlimited Jurisdiction, 

supra, and early nineteenth-century cases Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass. 

1828) and Toland v. Sprague, 37 U.S. 300 (13 Pet.), 327 (1838)); En Banc Oral Argument at 

25:20–25:57 (noting but not relying upon originalist scholarship to fashion a middle-ground 

‘national contacts’ test); id. at 58:12–58:53 (“It’s also important to understand that there 

is considerable originalist scholarship that the Fifth Amendment does not address personal 

jurisdiction. I mentioned the Stephen Sachs article, he’s actually written several articles to 

that effect.”). 

That being the case, the onus was on NYK to persuade us that we should continue 

to use Fourteenth Amendment jurisprudence to cast light on the Fifth Amendment and 

restrict the constitutional applicability of Rule 4(k)(2). Cf. Baldwin v. Missouri, 281 U.S. 

586, 599 (1930) (“As this Court has often held, the burden rests upon him who assails a 

statute to establish its unconstitutionality.”); Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 

436–37 (1827) (“It has been truly said, that the presumption is in favour of every legislative 

act, and that the whole burthen of proof lies on him who denies its constitutionality.”). In 

my view, NYK has failed to do so. And, without a reason to affirm the district court’s 

restrictive view of its ability to exercise personal jurisdiction under the Fifth Amendment’s 

Due Process Clause, we should overrule our misguided precedents in this area and reverse 

the district court’s dismissal for lack of jurisdiction. 

The majority opinion further suggests that this dissent fails on its own terms 

because Congress has not acted to extend federal court jurisdiction. See ante at 7 n.8; infra

section II.B. Not so. Rule 4(k)(2), promulgated and enacted pursuant to the Rules 

Enabling Act with Congress’s imprimatur, plainly supports personal jurisdiction here. See

Fed. R. Civ. P. 4(k)(2); 28 U.S.C. §§ 2071–2077; id. §§ 2074, 2075 (providing Congress 
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not meet its burden if it tried. The text, history, and structural implications 

of the Fifth Amendment Due Process Clause suggest that its original public 

meaning imposed few (if any) barriers to federal court personal jurisdiction. 

A. 

First, the text. The Fifth Amendment Due Process Clause provides: 

“No person shall be . . . deprived of life, liberty, or property, without due 

process of law[.]” U.S. Const. amend. V. This provision, Justice Joseph 

Story explained in 1833, draws upon “the language of magna charta, ‘nec 

super eum ibimus, nec super eum mittimus, nisi per legale judicium parium 

suorum, vel per legem terrae,’ neither will we pass upon him, or condemn him, 

but by the lawful judgment of his peers, or by the law of the land.”7

 3 Joseph 

Story, Commentaries on the Constitution of the United States § 1783 

(Hillard, Gray, & Co. 1833). Citing the renowned seventeenth century 

English jurist Lord Coke, Alexander Hamilton wrote in 1784 that “[i]f we 

enquire what is meant by the law of the land, the best commentators will tell 

us, that it means due process of law, that is, by indictment or presentment of good 

and lawful men, and trial and conviction in consequence.” Alexander 

Hamilton, A Letter from Phocion to the Considerate Citizens of New York (Jan. 

1784), reprinted in 3 The Papers of Alexander Hamilton 485, 485–86 (Harold 

C. Syrett & Jacob E. Cooke eds., 1962) (emphasis in original) (referring to 

with a statutory window of at least seven months to reject, modify, or defer any proposed 

rule, after which period proposed rules take effect with Congressional approval). 

7

 Up until about a century ago, the predominant spelling of the Great Charter was 

“Magna Charta,” pronounced the same as it is today (with a hard -k- sound). See Bryan A. 

Garner, A Magna Carta Style Guide, 101 A.B.A. J. 26, 26 (2015). In an “astonishingly swift 

reversal of linguistic fortune,” English speakers in the twentieth century began spelling it 

“Magna Carta,” at least in part because of pervasive mispronunciation with a -chsound. See id.
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2 Edward Coke, Institutes of the Lawes of England 50 (1642)).8 Indeed, the 

relationship between “law of the land” and “due process of law” antedates 

Lord Coke’s magisterial interpretation of Magna Carta by nearly three 

centuries.9

Over the course of almost six centuries between the signing of Magna 

Carta in 1215 and the American Founding in the late eighteenth century, the 

related phrases “law of the land” and “due process of law” came to signify 

the procedural protections of the English positive law.10 Sir William 

8

 Justice Story also cited Lord Coke in making the broader assertion that “per legem 

terrae (by the law of the land) mean[s] by due process of law.” See Story, supra, at § 1783; 

Crema & Solum, supra, at 516–24 (arguing that Justice Story may have misread Lord Coke 

in conflating the broader legal expression “law of the land” with its narrower subset “due 

process of law”). Mid-nineteenth century cases began to adopt Justice Story’s broad 

equation of “law of the land” with “due process of law.” See, e.g., Den ex dem. Murray v. 

Hoboken Land & Imp. Co., 59 U.S. (18 How.) 272, 276 (1855) (“The words, ‘due process of 

law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of 

the land,’ in Magna Charta.” (citing, inter alia, Lord Coke)). But, as Hamilton’s “Letter 

from Phocion” illustrates, the Founding generation understood “law of the land” to 

encompass both “due process of law” (i.e., indictment, presentment, service of the proper 

writ) and civil and criminal procedure more generally (i.e., motions practice, trial). See

Crema & Solum, supra, at 504–06. Thus, “due process of law,” as originally understood 

at the time that the Fifth Amendment was proposed and ratified, likely had a narrower 

meaning than it came to have by the time the Fourteenth Amendment was proposed and 

ratified. See also infra section II.C.1. 

9 See 28 Edw. 3, c. 3 (1354) (Eng.) (implementing Magna Carta’s thirty-ninth 

chapter and using “due Process of the Law” (albeit in law French) in place of “law of the 

land”). Note that Magna Carta’s chapter divisions were only standardized in the 

eighteenth century by Sir William Blackstone. On Blackstone’s numbering system, the ‘per 

legem terrae’ chapter is thirty-nine in the original 1215 Magna Carta, and twenty-nine in the 

1225 issue, which is also frequently cited. 

10 See Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale 

L.J. 408, 428–34 (2010) (“[A]n eighteenth-century reader well-versed in English law 

would likely have understood both the law of the land and due process of law to require 

only compliance with duly enacted positive law . . . .”); Murray’s Lessee v. Hoboken Land & 

Improvement Co., 59 U.S. (18 How.) 272, 276 (1856) (“‘[D]ue process of law’ generally 
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Blackstone, for instance—another renowned English jurist whose work, like 

Coke’s, deeply influenced American legal thought—wrote of “the 

affirmative acts of parliament wherein justice is directed to be done according 

to the law of the land,” and noted that the law of the land “depends not upon 

the arbitrary will of any judge; but is permanent, fixed, and unchangeable, 

unless by authority of parliament.” 1 William Blackstone, Commentaries *141–

42 (emphasis added). 

An early eighteenth-century case, Regina v. Paty (1704) 92 Eng. Rep. 

232 (Q.B.), exemplified the prevailing conception of due process in the years 

leading up to the American Founding. Petitioners in that case sought habeas 

corpus, having been jailed on a warrant issued by the speaker of the House of 

Commons for allegedly breaching parliamentary privilege. Id. at 232–33. 

They argued that their incarceration violated Magna Carta’s assurance that 

“no man ought to be taken or imprisoned but by the law of the land.” Id. at 

233 (reporting petitioners’ objections). Three of the four justices hearing the 

case denied the petitioners’ claim. Id. at 232–33 (Gould, J.), 233–35 (Powys, 

J.), 235–36 (Powell, J.). As reported, Justice Powys addressed petitioners’ 

argument as follows: 

[T]o this I answer, that lex terrae is not confined to the common 

law, but takes in all the other laws, which are in force in this 

realm; as the civil and canon law, &c. and among the rest, the 

Lex Parliamenti. By the 28 Ed. 3, c. 3, there the words lex terrae, 

which are used in Mag. Char. are explained by the words, due 

process of law; and the meaning of the statute is, that all 

commitments must be by a legal authority. And the law of 

Parliament is as much a law as any; nay, if there be any 

superiority, this is a superior law. 

implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial 

according to some settled course of judicial proceedings . . . .”). 
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Id. at 234 (emphasis added). The sole dissenting justice, Chief Justice Holt, 

did not disagree with this premise; he disagreed only as to the legal status of 

the House of Commons warrant in question. Id. at 236–37 (Holt, C.J., 

dissenting). Thus, the Queen’s Bench was unanimous as to this central 

point: Magna Carta’s guarantee of due process did not extrinsically constrain 

the legislative process. It required only that legal deprivation be preceded by 

lawful process, in keeping with the common law or duly enacted legislation.11

Early American colonists quickly transplanted this deeply rooted 

English legal tradition in their own governing documents. Using variations 

on the longstanding phrases “law of the land” and “due process of law,” the 

colonists brought with them the legal soil of their forebears in their first 

charters and declarations of rights.12 The same language carried over into 

11 Some fifty years earlier, in another English case, a habeas corpus petitioner 

similarly invoked the “29th chapter of Magna Carta” and its statutory complement (42 

Edw. 3, c. 3) against the Parliamentary warrant on which he had been arrested, asserting 

that he had “been proceeded against not according to the law of the land.” Case of Captain 

Streater, 5 How. St. Tr. 366, 374–86 (1653); see also supra n.9 (explaining Magna Carta’s 

chapter-numbering conventions). The judge in that case was perhaps even less impressed 

with the argument than the Queen’s Bench in Paty’s Case: “[Petitioner’s counsel] says, 

The parliament hath not the power to alter the laws. Why, they have the legislative power, 

and may alter and order in such sort as they please; they may daily. . . . It is strange a 

counsellor should say this.” Captain Streater, 5 How. St. Tr. at 386. “[I]n all justice, an 

inferior court cannot controul what the Parliament does. . . . We must submit to the 

legislative power . . . .” Id. 

12 See, e.g., The New York Charter of Liberties and Privileges ¶ 13 (1683) (“Noe 

freeman shall be taken and imprisoned or be disseized of his Freehold or Libertye or Free 

Customes or be outlawed or Exiled or any other wayes destroyed nor shall be passed upon 

adjudged or condemned But by the Lawfull Judgment of his peers and by the Law of this 

province.” (emphasis added)); An Act Declaring What Are the Rights and Priviledges, of 

His Majesty’s Subjects, Inhabiting Within this Province of East New Jersey (1698) (using 

both “laws of this Province” and “due course of law”). 

Quite recently, two scholars have suggested that three interrelated legal phrases 

stemming from Magna Carta and six subsequent Edwardian statutes—“law of the land,” 

“course of law,” and “due process of law”—were in use during the Founding era and 
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state constitutions,13 the Northwest Ordinance,14 and eventually, the Fifth 

Amendment to the federal Constitution.15

generally understood to mean somewhat different things: “law of the land” referred most 

broadly to the English positive law; “course of law” meant legal procedure; and “due 

process of law” referred rather narrowly to the appropriate “process”—that is, “‘writs or 

precepts that go forth’ from a court” by which “[g]overnment officials . . . issue orders, 

impose obligations, or grant rights.” See Crema & Solum, supra, at 461–525; id. at 465 

(quoting Process, 2 Timothy Cunningham, A New and Complete Law-Dictionary (London, 

1765)). 

13 See, e.g., Md. Const. of 1776, Declaration and Charter of Rights, art. 21 (“That 

no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or 

privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, 

or property, but by the lawful judgment of his peers, or by the law of the land.”); N.Y. 

Const. of 1777, art. XIII (“[N]o member of this state shall be disfranchised, or deprived of 

any the rights or privileges secured to the subjects of this State by this constitution, unless 

by the law of the land, or the judgment of his peers.”). Some states tailored these 

provisions more narrowly to the criminal context, e.g., Pa. Const. of 1776, Declaration of 

Rights, art. IX (“That in all prosecutions for criminal offences, a man . . . [cannot] be justly 

deprived of his liberty except by the laws of the land, or the judgment of his peers.”), while 

others phrased the provisions to provide protections for criminal defendants but did not 

expressly cabin the scope to only criminal defendants, e.g., Mass. Const. pt. I, art. XII 

(1870) (“[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, 

immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, 

liberty, or estate, but by the judgment of his peers, or the law of the land.”). See Williams, 

supra, at 437–38 & nn.120–22; see also Edward S. Corwin, The Doctrine of Due Process of Law 

Before the Civil War, 24 Harv. L. Rev. 366, 370–71 (1911) (arguing that “the phrase ‘law of 

the land,’ which is the universal form in [early state] constitutions, [did not] import any 

limitation upon legislative power”). 

14 Ordinance of 1787: The Northwest Territorial Government, art. II, U.S.C. LV, 

LVI (2006) (“No man shall be deprived of his liberty or property but by the judgment of 

his peers, or the law of the land . . . .” (emphasis added)). 

15 Notes from the constitutional convention or the ratification debates provide little 

aid in understanding the Fifth Amendment’s Due Process Clause. See 1 Annals of Cong. 

434 (James Madison introducing the amendment), 753–54 (debating other clauses of the 

amendment, but not the due process clause). “The immediate inspiration for Madison’s 

proposal was most likely Article II of the Northwest Ordinance,” which had a provision 

like those adopted in state constitutions and which Congress passed a few years earlier. See

Williams, supra, at 446 n.156 (quoting Ordinance of 1787: The Northwest Territorial 
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B. 

In light of the text and history behind the Fifth Amendment’s Due 

Process Clause, what bearing (if any) did the clause have on federal courts’ 

exercise of personal jurisdiction or Congress’s ability to expand it? There are 

relatively few cases from our nation’s early constitutional history to serve as 

waypoints on our interpretive voyage.16 In any event, “[s]howing that 

Founding-era due process didn’t limit federal personal jurisdiction is an 

exercise in proving a negative.” Stephen E. Sachs, The Unlimited Jurisdiction 

of the Federal Courts, 106 Va. L. Rev. 1703, 1710 (2020); see also Elkins v. 

United States, 364 U.S. 206, 218 (1960) (“[A]s a practical matter it is never 

easy to prove a negative . . . .”). And the majority opinion points us to no 

case whatsoever from our nation’s early history to carry its burden in support 

of its view. Nor could it: the few relevant cases that we have compellingly 

suggest that due process had precious little to do with jurisdiction. 

1. 

Consider Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass. 1828) (No. 

11,134). Antonio Picquet, a Frenchman, sued James Swan, an American 

expatriate in Paris, in federal court. Id. at 609. Swan never appeared, so 

Picquet sought a default judgment. But Justice Joseph Story, riding circuit, 

Government, U.S.C. LV, LVI (2006)); see also Crema & Solum, supra, at 506–07 (noting 

that New York’s 1788 ratification letter—the only one to request a “due process of law” 

guarantee—was likely “the inspiration for James Madison’s decision to include the Due 

Process of Law Clause”). The lack of debate during the Constitution’s framing and 

ratification is likely due to the fact that ‘due process’ was well understood at the time as 

having “a precise technical import” that was, well, beyond debate. See Alexander 

Hamilton, New York Assembly. Remarks on an Act for Regulating Elections (Feb. 6, 

1787), reprinted in 4 The Papers of Alexander Hamilton 34–37 (ed. Harold C. Syrett 1962). 

16 The reason for that, in part, is strict Congressional control over venue for federal 

civil suits. See, e.g., Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79. This necessarily 

limited the occasions that could give rise to jurisdictional issues. 
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refused to authorize such “upon the ground[] that there ha[d] been no 

sufficient service of the process.” Id. at 619. The problem, Justice Story 

explained, was that Congress had not authorized extraterritorial process 

clearly enough to overcome the “general principle[],” in keeping with the 

“law of nations,” “that a court created within and for a particular territory is 

bounded in the exercise of its power by the limits of such territory.” Id. at 

611, 615. 

But Congress could have done so. Indeed, Congress had expressly 

authorized more expansive nationwide process in special circumstances, and 

having done so, Congress itself evidently acknowledged that it legislated 

against a restrictive background rule that constrained a federal court’s 

process to its own particular district. Id. at 611 (noting examples). Relying 

both on this “understanding of congress” and “on general principles” of 

law, Justice Story repudiated a default rule that would permit “an alien, who 

has never been within the United States” to be “served with a summons or 

other process by any attachment of his property . . . and be bound thereby to 

appear and submit to the jurisdiction of [an American federal] court.” Id. at 

615. 

If there were a moment in the opinion to mention any lurking Fifth 

Amendment due process issue, this would have been it.17 Had Justice Story 

thought that a constitutional provision—not merely a defeasible background 

principle of the law of nations—demanded narrow statutory construction, “it 

would have been the simplest thing for him to say so.” See United States v. 

Zubaydah, 142 S. Ct. 959, 992 (2022) (Gorsuch, J., dissenting). “Not only 

do universal principles of law preclude extraterritorial federal court 

17 Sachs, supra, at 1716 (discussing this part of Picquet and noting that if exercising 

extraterritorial jurisdiction over foreign defendants violated due process—in addition to 

common-law and general principles of justice—then “now was the time to say so”). 
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process,” Justice Story might very well have written, “but our own 

Constitution’s Fifth Amendment prohibits it as violative of due process of 

law.” He wrote no such thing, of course—and this is the dog that did not 

bark.18 See id. at 992 (Gorsuch, J., dissenting) (making the same form of 

argument based on the “clear implication” of judicial silence) 

But Justice Story went even further. He expressly contemplated the 

possibility of vast—perhaps unlimited—federal court jurisdiction, provided 

that Congress clearly said so: “If congress had prescribed such a[n] 

[expansive] rule, the court would certainly be bound to follow it . . . .” Id.

(emphasis added).19 Surely Justice Story would not have said that federal 

courts would “certainly” be “bound” to exercise constitutionally 

problematic jurisdiction merely upon Congressional say-so. To the contrary, 

he would have flagged any extrinsic constitutional limits on federal court 

jurisdiction that would have defeated overly expansive Congressional 

authorization. After all, whenever an act of Congress and the Constitution 

conflict, courts are obviously bound to obey the latter. Marbury v. Madison, 

5 U.S. (1 Cranch) 137, 177 (1803). 

But again, Justice Story conspicuously said nothing of this sort. And 

what he did say strongly suggests the absence of constitutional constraints on 

Congress’s ability to authorize sweeping federal court jurisdiction over even 

foreign parties residing abroad. In the course of addressing Piquet’s 

argument that the Judiciary Act of 1789 posed no barrier to extraterritorial 

18 See Sir Arthur Conan Doyle, The Adventure of Silver Blaze, Strand Mag., Dec. 

1892, at 645, 656–57, 659 (mystery-solving clue was the “curious incident” of the dog that 

“did nothing in the night-time”). 

19 See also Piquet, 19 F. Cas. at 613 (“[I]ndependent of some positive provision to the 

contrary, no judgment could be rendered in the circuit court against any person, upon whom 

process could not be personally served within the district.” (emphasis added)). 
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process, Justice Story observed that Picquet relied on an unspoken—and 

incorrect—premise: namely, that absent affirmative statutory limitations, the 

reach of federal process was unbounded. Piquet, 19 F. Cas. at 613. Justice 

Story held the inverse to be true: absent affirmative authorization, the reach 

of American courts’ process was limited by “general principles of law.” Id.

at 611, 615. 

As Justice Story saw it, the “general principles of law” that gave rise 

to the background presumption against extraterritorial process were not a 

brooding omnipresence that indefeasibly tied Congress’s hands. Congress 

could act to change the background rule. It just had to do so explicitly. Thus, 

Justice Story wrote that although “repugnant to the general rights and 

sovereignty of other nations” and not an intention to be presumed lightly 

from general congressional language, “a subject of England, or France, or 

Russia, having a controversy with one of our own citizens, may be summoned 

from the other end of the globe to obey our process, and submit to the 

judgment of our courts,” if Congress’s intent is “established by irresistible 

proof.” Id. at 613. Importantly, Justice Story made no mention of Fifth 

Amendment due process. 

But there was a different constitutional problem with Picquet’s case. 

Picquet, it turns out, had described Swan as being “of the city of Boston, in 

the commonwealth of Massachusetts, one of the United States of America, 

and a citizen of the said United States.” Id. at 609 (emphasis added). He did 

not, however, specify that Swan was “a citizen of Massachusetts, or of any 

particular state.” Id. at 616 (emphasis added). And while the Judiciary Act 

of 1789 gave circuit courts jurisdiction over cases to which “an alien” like 

Piquet “is a party,” 1 Stat. at 78, § 11, Article III of the Constitution “does 

not extend the judicial power of the United States to [all cases in which an 

alien is a party], but limits it to controversies between citizens of a state, and 
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foreign citizens or subjects.” Picquet, 19 F. Cas. at 616 (paraphrasing U.S. 

Const. art. III, § 2) (emphasis added). 

So, Justice Story pedantically engaged in constitutional avoidance to 

dodge this rigidly formalistic Article III problem. He interpreted the 

Judiciary Act to mean that “if an alien is one party, a citizen of some 

particular state must be the other party.” Id. at 616. Picquet’s writ 

technically did not pass muster because Picquet had not (in so many words) 

denominated his counterparty, Swan, a “citizen of a state”—a fact necessary 

for the court to exercise diversity jurisdiction according to the letter of the 

Constitution. If Justice Story was so attuned to this picayune constitutional 

peccadillo, could he really have overlooked a looming Fifth Amendment due 

process problem? 

Justice Story’s failure to make any mention of the Fifth Amendment’s 

Due Process Clause would be glaring if Justice Story believed that it 

constrained courts’ exercise of personal jurisdiction. But his omission makes 

perfect sense if the Clause merely required lawful process in keeping with the 

common law or duly enacted legislation. 

2. 

Picquet’s silence as to due process is telling. And it does not stand 

alone. Of the other early cases that we have, none lends support to the view 

that a string of Supreme Court cases interpreting the Fourteenth 

Amendment from the mid-twentieth century to the present somehow 

captured the Fifth Amendment’s original public meaning. Just the opposite. 

Other cases both before and after Picquet suggest—in what they do not say—

that Fifth Amendment due process had no bearing on the extent to which 

Congress could authorize federal courts to issue process internationally. 

A decade before Picquet, Justice Bushrod Washington (President 

George Washington’s nephew) already aired much the same reasoning while 
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riding circuit in Pennsylvania. In Ex parte Graham, which Justice Story cited 

favorably in Picquet, Justice Washington determined that a Philadelphia 

merchant was improperly arrested in Pennsylvania on the basis of a Rhode 

Island circuit court order. 10 F. Cas. 911, 911, 913 (C.C.E.D. Pa. 1818) (No. 

5,657). “In the exercise of a jurisdiction over persons not inhabitants of, or 

found within the district where the suit is brought,” he wrote, “there are 

difficulties, which, in the opinion of the court, nothing but an act of congress 

can remove.” Id. at 913 (emphasis added). And furthermore, he added, 

should it be the will of congress to vest in the courts of the 

United States an extra-territorial jurisdiction in prize causes, 

over persons and things found in a district other than that from 

which the process issued, it would seem to be proper, if not 

absolutely necessary, at the same time to prescribe the mode of 

executing the process. 

Id. Congress had the power; it simply had to exercise it. And if there were 

any due process limitations on Congress’s power, Justice Washington wholly 

neglected to mention them. 

A decade after Picquet, the full Supreme Court endorsed Justice 

Story’s circuit court opinion. Toland, 37 U.S. (13 Pet.) at 328, 330. In Toland, 

Justice Barbour described “the reasoning in [Picquet], generally, as having 

great force,” and announced that the Court had “arrived at the same 

conclusions” as Justice Story had in Picquet. Id. at 328, 330. Toland, a 

Pennsylvanian plaintiff, sued Sprague, an American denizen of Gibraltar, for 

stiffing him on a shipment of tobacco and miscellaneous other goods. Id. at 

302. As in Picquet, the question raised was “whether the process of foreign 

attachment can be properly used by the circuit courts of the United States, in 

cases where the defendant is domiciled abroad, and not found within the 

district in which the process issues, so that it can be served upon him.” Id. 

at 327. Hewing closely to Justice Story’s logic in Picquet, the Court held that 
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Congress’s Process Acts, read in light of the Judiciary Act, had not expressly 

given federal courts the authority to cause process to be personally served 

upon foreign defendants abroad. Id. at 327–30. But, just as in Picquet, the 

Court intimated that express, “special authority of law”—“positive 

legislation”—could grant federal courts that power and thus expand their 

jurisdiction. Id. at 329–30. 

Foreign attachment was not invariably doomed for lack of 

congressional authorization. In a couple other early nineteenth-century cases 

before Picquet, Justice Washington, riding circuit in Pennsylvania, refused to 

uphold challenges to foreign attachments against a Cantonese tea merchant 

on claims arising out of business conducted in Canton. See Fisher v. Consequa, 

9 F. Cas. 120, 121–22 (C.C.D. Pa. 1809) (No. 4,816) (finding “no ground to 

dissolve [a foreign] attachment,” as authorized by a colonial Pennsylvanian 

law, because that law “has received in practice a liberal construction, so as to 

embrace debts contracted in foreign countries, by persons who never did 

reside here, and who, of course, could not properly be said to absent 

themselves; and which debts, neither by the terms of the contract, nor by the 

removal of the debtor hither, could be said to be owing here”); id. at 121 

(noting that the state law providing for foreign attachment was a “remedial 

law” that “ought . . . to be so extended as to remove the mischief [of 

absconding foreign debtors], and to advance the remedy” for the “injury of 

the inhabitants of Pennsylvania”); Willings v. Consequa, 30 F. Cas. 52, 52–55 

(C.C.D. Pa. 1815) (No. 17,766) (failing to mention any jurisdictional issue 

with a series of suits brought by American merchants against a Cantonese 

merchant on parole contracts “made at Canton” for the delivery of tea to 

Amsterdam). Perhaps these cases would have come down differently in light 

of Picquet and Toland. But, for our purposes, the key thing to notice is that 

neither opinion so much as hints at a constitutional due process problem. 
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From this brief survey of nineteenth-century case law, a couple of 

things are reasonably clear: First, so long as a statute or rule provides a means 

of serving process on civil defendants—even defendants halfway across the 

globe—a federal court could and should exercise jurisdiction, despite 

offending the law of nations. Second, so long as Congress expressly 

authorized such expansive process, Fifth Amendment due process does not 

impose constitutional limits on federal courts’ exercise of personal 

jurisdiction. Just as Magna Carta’s per legem terrae clause did not tie 

Parliament’s hands in Paty’s case, early American cases show—by what they 

omit—that the Fifth Amendment’s Due Process Clause does not restrict 

Congress’s ability to prescribe, by law, the extent to which federal courts may 

issue process and thereby acquire personal jurisdiction over even foreign 

defendants a world away. 

C. 

The majority opinion hopscotches right over all this history, leaping 

from Runnymede in 1215 A.D. straight to Washington, D.C. in 1945. Ante at 

14–15. It turns out, as we have seen, that a good bit happened in the 

intervening seven centuries that is helpful to discerning what the Fifth 

Amendment’s Due Process Clause, as originally understood, had to say 

about personal jurisdiction. Supra sections II.A–B. But on the majority 

opinion’s abridged telling of the story, “the Great Charter of individual 

liberty, Magna Carta” gave rise to “due process of law,” and (seven 

centuries later), International Shoe and its progeny suddenly elucidated how 

due process protects individual liberty vis-à-vis personal jurisdiction.20 Ante

20 I agree, of course, with the majority opinion that ‘due process of law’ protects 

individual liberty. Ante at 14–17. But so does federalism. See, e.g., Planned Parenthood Gulf 

Coast, Inc. v. Phillips, 24 F.4th 442, 450 (5th Cir. 2022) (“Federalism recognizes our dual 

sovereignties—the states and the federal government—and ‘secures to citizens the 

liberties that derive from the diffusion of sovereign power.’” (quoting Shelby County v. 
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at 14–15. As the majority opinion would have it, International Shoe et al.—an 

extensive line of Fourteenth Amendment case law—apply equally to Fifth 

Amendment due process, because both “Due Process Clauses use the same 

language and guarantee individual liberty in the same way.” Ante at 17. 

This is anachronism.21 Case law applying the Fourteenth Amendment 

construes a different text directed at a different audience, and which was 

written at a different time in our history and, accordingly, under different 

circumstances. To imbue the older Fifth Amendment with newer glosses on 

Holder, 570 U.S. 529, 543 (2013))); Williams ex rel. J.E. v. Reeves, 981 F.3d 437, 439 (5th 

Cir. 2020) (Jones, J., dissenting) (“Federalism, the principle of dual sovereignties, is a 

bedrock principle of our Founding and a bulwark of individual liberty because it diffuses 

the exercise of power by governments.”). And so does the separation of powers. See Bond 

v. United States, 564 U.S. 211, 222 (2011) (“The structural principles secured by the 

separation of powers protect the individual as well.”). Indeed, our entire system of 

government was designed to promote ordered liberty. Yet it is equally clear that not every 

safeguard of our liberty comes in the form of an inflexible right against the state. 

Federalism, for instance, protects individual liberty structurally by preventing dangerous 

concentrations of power. Among its many other functions, Fifth Amendment due process 

likewise protects liberty by guaranteeing that deprivations thereof only occur pursuant to 

the law of the land—which includes statutes and rules that define and delimit federal 

courts’ jurisdictional reach. Cf. Sachs, Pennoyer Was Right, supra, at 1314 (“[D]ue process 

requires jurisdiction, full stop[] . . . . To the extent that Congress has enumerated power to 

determine [federal courts’ jurisdiction], the Due Process Clauses won’t stand in the 

way.”); id.at 1288 (explaining that because (1) “[d]ue process . . . forbid[s] deprivations of 

liberty or property without the lawful judgment of a properly authorized court,” and (2) “a 

court lacking in personal jurisdiction isn’t properly authorized [and] can’t issue a lawful 

judgment,” therefore, (3) an unlawful judgment from a court lacking personal jurisdiction 

constitutes a due process violation). 

21 It also begs the question. The Fifth Amendment only protects individual liberty 

in the same way as the Fourteenth Amendment if we apply the same precedents from the 

Fourteenth Amendment context in the Fifth Amendment context—which is precisely the 

conclusion that the statement is supposed to explain. See ante at 17 (“Because the Due 

Process Clauses use the same language and guarantee individual liberty in the same way, it 

makes sense that the standards developed in the Fourteenth Amendment context must 

govern under the Fifth Amendment.”). 
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the more recent Fourteenth Amendment is to put new wine in an old 

wineskin.22

1. 

The Fourteenth Amendment was drafted more than seventy-five 

years after Fifth Amendment, and under quite different historical 

circumstances. As already discussed, recent originalist scholarship indicates 

that the phrase “due process of law” underwent substantial linguistic drift 

over the course of the nineteenth century. See Crema & Solum, supra, at 

509–25; supra section II.A & n.8. In 1791, the phrase bore a rather technical 

legal meaning: namely, service of the proper writ—what we call “service of 

process” today. But by 1868, “due process of law” had come to refer to 

procedural fairness more generally. For this reason, Supreme Court 

precedents interpreting “due process of law” as it was used in 1868 are not 

dispositive of the phrase’s usage in the late eighteenth century. 

Still, even if we were to assume arguendo that the Fifth and Fourteenth 

Amendment Due Process Clauses share identical semantic content, there 

remain deeper structural state–federal differences that significantly affect the 

clauses’ legal effect.23 International Shoe and its progeny are concerned not 

only with due process generally, but also with principles of interstate 

22 See Crema & Solum, supra, at 528 (stating that it is most consistent with public 

meaning originalism to hold the view that “the meaning of the two Clauses are independent 

of one another” and rejecting the reverse-incorporation view that “[r]atification of the 

Fourteenth Amendment implicitly amended the earlier Fifth Amendment Due Process of 

Law Clause”). 

23 Cf. Xitronix Corp. v. KLA-Tencor Corp., 916 F.3d 429, 442–43 (5th Cir. 2019) 

(Higginson, J.) (observing that although “the Supreme Court prefers to construe like text 

alike[,] [i]t has refused to give identical terms the same meaning . . . when contexts and 

considerations differ,” and holding that the lack of “federalism concerns” present in a 

different context justified a different interpretation of the same statutory language). 
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federalism. And principles of interstate federalism are irrelevant in the Fifth

Amendment context of federal court personal jurisdiction.24 

Federalism concerns animate the Supreme Court’s jurisprudence on 

the jurisdictional limitations of the Fourteenth Amendment’s Due Process 

Clause. See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 

1030 (2021) (noting that “principles of ‘interstate federalism’” are central 

to the Court’s analysis of Fourteenth Amendment due process limitations on 

personal jurisdiction (quoting World-Wide Volkswagen, 444 U.S. at 293)).25 

To prevent competing assertions of state court jurisdiction within the federal 

system, the Supreme Court has fashioned rules under the Fourteenth 

Amendment to limit state courts to the exercise of general personal 

jurisdiction over corporate defendants that are incorporated in the state, 

house their “nerve center” there, or are otherwise “essentially at home” in 

the state. 

These federalism concerns are entirely absent in the Fifth 

Amendment due process context.26 Since federal law applies uniformly and 

24 The textual differences between the amendments are also reflective of these 

deeper structural state–federal differences between the clauses’ respective applications. 

Contrast U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, 

liberty, or property, without due process of law[.]” (emphasis added)), with U.S. Const. 

amend. V (“No person shall be . . . deprived of life, liberty, or property, without due 

process of law[.]”). 

25 See also, e.g., Bristol-Myers, 137 S. Ct. at 1780 (“[R]estrictions on personal 

jurisdiction ‘are more than a guarantee of immunity from inconvenient or distant litigation. 

They are a consequence of territorial limitations on the power of the respective States.’” 

(quoting Hanson v. Denckla, 357 U.S. 235, 251 (1958))); id. at 1788 (Sotomayor, J., 

dissenting) (“The majority’s animating concern, in the end, appears to be federalism 

. . . .”). 

26 The United States, intervening in a case pending in the Second Circuit, very 

recently put it this way: 
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what matters, ultimately, is the sovereignty of the United States, federal 

courts’ personal jurisdiction can properly be much more expansive. As the 

United States Solicitor General recently argued before the Supreme Court, 

“the United States’ constitutional powers and special competence in matters 

of foreign affairs and international commerce, in contrast to the limited and 

geographically cabined sovereignty of each of the several States, would 

permit the exercise of federal judicial power in ways that have no analogue at 

the state level.” Brief of the United States as Amicus Curiae at 32, Ford Motor 

Co., 141 S. Ct. 1017 (Nos. 19-368, 19-369), 2020 WL 1478612. 

This all makes sense as a matter of first principles. Personal 

jurisdiction is anchored to the concept of sovereignty. Cf. McIntyre, 564 U.S. 

at 883–84 (“[J]urisdiction is in the first instance a question of authority rather 

than fairness[.]”). A court has personal jurisdiction over a defendant when 

the state, of which the court is an instrumentality, has sovereign power over 

a defendant, either generally or with respect to a particular transaction or 

occurrence. The Constitution’s Due Process Clauses come into play 

indirectly. For a defendant to be “deprived of life, liberty, or property” with 

[F]ederalism concerns do not apply to the federal government. Unlike a 

state, which is subject to “territorial limitations” on its power, WorldWide Volkswagen, 444 U.S. at 294, the United States has authority “to 

enforce its laws beyond [its] territorial boundaries,” EEOC v. Arabian 

American Oil Co., 499 U.S. 244, 248 (1991), superseded by statute on other 

grounds. And rather than the limited and mutually exclusive sovereignty of 

the several states, the federal government’s sovereignty includes authority 

over foreign commerce and foreign affairs. Indeed, the United States’ 

“powers of external sovereignty” and its ability to conduct its 

relationships with foreign actors are grounded in the United States’ status 

in international law as an independent state. United States v. CurtissWright Export Corp., 299 U.S. 304, 318 (1936). 

Brief of Intervenor–Appellant United States at 35–40, Fuld v. Palestinian Liberation 

Org. (2d Cir. June 24, 2022) (Nos. 22-76, 22-496). 
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the constitutionally required “due process of law,” a properly authorized 

court must have rendered a lawful judgment in the proper manner. See

Sachs, Pennoyer was Right, supra, at 1314; Sachs, Unlimited Jurisdiction, 

supra, at 1726–27. A court is only properly authorized when it is enabled to 

partake of the state’s sovereign power over the defendant. Without 

authority, the court’s judgment is “waste paper,” and execution of the 

judgment would be unconstitutional for lack of due process. See Voorhees v. 

Jackson, 35 U.S. (10 Pet.) 449, 469, 475 (1836). 

Domestically, Fourteenth Amendment due process thus prevents 

states from unjustifiably trenching on others’ sovereign prerogative to have 

their courts hear cases concerning defendants residing or doing business 

within state borders. See Pennoyer v. Neff, 95 U.S. 714, 732–33 (1877). 

Applicable to state action, and here, interstate action, the Fourteenth 

Amendment necessarily carries federalist cargo. 

But in the international sphere, our Constitution dictates no particular 

ordering of relations with other countries. Rather, the Constitution assigns 

that job to Congress and the President. See U.S. Const. art. I, § 8, cl. 3 

(congressional power to “regulate Commerce with foreign Nations”); id. art. 

I, § 8, cl. 10 (congressional power to “define and punish Piracies and Felonies 

committed on the high Seas, and Offenses against the Law of Nations”); id.

art. I, § 8, cl. 11 (congressional power to “declare War, grant Letters of 

Marque and Reprisal, and make Rules concerning Captures on Land and 

Water”); id. art. II, § 2, cl. 1 (presidential designation as “Commander in 

Chief”); id. art. II, § 2, cl. 2 (presidential power “to make Treaties”). The 

Fifth Amendment, as originally understood, imposes no extrinsic constraint 

on our coordinate branches’ exercise of their prerogatives to conduct foreign 

relations in and through federal courts. Congress can open the federal 

courthouse door to lawsuits against foreign defendants. The Executive can 

prosecute or sue foreign actors in federal courts. Because the Fifth 
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Amendment, unlike the Fourteenth Amendment, applies to federal courts 

and is not shaped by principles of federalism, it poses no barrier. 

2. 

Dismissing the interstate federalism concerns that animate much of 

Fourteenth Amendment personal jurisdiction jurisprudence, the majority 

opinion leans heavily on the “individual liberty interest[s]” protected by due 

process to justify extending Fourteenth Amendment due process case law 

into the Fifth Amendment to protect a foreign corporation. Ante at 14–17. 

This amounts to an improper, unhesitating expansion of substantive due 

process. 

As a preliminary matter, it is not entirely clear whether foreign 

defendants abroad have due process rights in the first place. On the one hand, 

the Supreme Court recently emphasized that “it is long settled as a matter of 

American constitutional law that foreign citizens outside U.S. territory do 

not possess rights under the U.S. Constitution.” Agency for Int’l Dev. v. All. 

for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (citing, inter alia, 

Boumediene v. Bush, 553 U.S. 723, 770–71 (2008), United States v. VerdugoUrquidez, 494 U.S. 259, 265–75 (1990), and Johnson v. Eisentrager, 339 U.S. 

763, 784 (1950) (opinion of Jackson, J.)).27 On the other hand, as the majority 

opinion correctly notes, a slew of Fourteenth Amendment personal 

jurisdiction cases has, without question, accepted the premise that foreign 

corporations have due process rights as to personal jurisdiction. Ante at 7–8. 

27 See also Hernandez v. United States, 785 F.3d 117, 126 (5th Cir. 2015) (Jones, J., 

concurring) (“The Supreme Court [has] held . . . and has reiterated . . . that as a general 

matter aliens outside the sovereign territory of the United States are not entitled to Fifth 

Amendment rights.” (citing Johnson, 339 U.S. at 782–85)); Castro v. Cabrera, 742 F.3d 595, 

599 n.5 (5th Cir. 2014) (noting that Johnson “reject[ed] extraterritorial application of the 

Fifth Amendment”). 
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Absent Supreme Court resolution of this perplexing problem, the Supreme 

Court’s Fourteenth Amendment cases suggest that, as to personal 

jurisdiction, foreign actors abroad do have rights under the United States 

Constitution, anomalous as that may be. See, e.g., Daimler, 571 U.S. at 139–

41; Asahi, 480 U.S. at 114–15. 

For better or worse, the words “due process of law” as used in the 

Fourteenth Amendment have always had, or else have since acquired, a 

substantive aspect that was never borne by the words per legem terrae in 

Magna Carta or “due process of law” as they were used at the Founding. See 

Williams, supra, at 428–34 (tracing the history of “due process” to explain 

how the Fourteenth Amendment’s Due Process Clause is substantive, 

whereas the Fifth Amendment’s is not); United States v. Vaello Madero, 142 

S. Ct. 1539, 1535 (2022) (Thomas, J., concurring) (“[T]he Fifth 

Amendment’s text and history provide little support for modern substantive 

due process doctrine.”).28 The liberty interest that the majority opinion 

expounds is substantive in character. Ante at 8, 24 (concluding that nonresident, non-consenting defendants have a liberty-based right of immunity 

from suit in United States federal court). See generally Wendy Collins 

Perdue, Sin, Scandal, and Substantive Due Process: Personal Jurisdiction and 

Pennoyer Reconsidered, 62 Wash. L. Rev. 479 (1987) (parsing the nature of 

the liberty interest at stake in the personal jurisdiction analysis under the 

Fourteenth Amendment and concluding that it is “a substantive due process 

28 See also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992) (“[T]he 

guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and 

considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in 

this country become ‘bulwarks also against arbitrary legislation.’” (quoting Poe v. Ullman, 

367 U.S. 497, 541 (1961) (Harlan, J., dissenting))). 
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right”).29 While the Supreme Court has instructed us that the Fourteenth 

Amendment protects substantive personal-jurisdiction rights, it has not done 

so with the Fifth Amendment, and extending such a right here does not 

comport with the Fifth Amendment’s meaning at the Founding. 

Of course, the Supreme Court has ascribed to the Fifth Amendment 

Due Process Clause a “substantive” facet alongside the Fourteenth 

Amendment. See, e.g., United States v. Salerno, 481 U.S. 739, 746 (1987) 

(acknowledging “[s]o-called ‘substantive due process’” under the Fifth 

Amendment); Wright v. United States, 302 U.S. 583, 607 (1938) (holding that 

“[t]he phrase ‘due process’ in the Fifth and Fourteenth Amendments has 

long since been expanded beyond its literal meaning of due procedure”). But 

the Supreme Court has also limited the expansion of “substantive due 

process” in recent decades. See Collins v. City of Harker Heights, 503 U.S. 

115, 125 (1992) (expressing “reluctan[ce] to expand the concept of 

substantive due process because guideposts for responsible decisionmaking 

in this unchartered area are scarce and open-ended”). If, as the majority 

opinion urges, we are to treat Fourteenth Amendment due process 

jurisprudence as equally applicable to Fifth Amendment due process, we 

ought to consider its limits, too. 

In the seminal case of Washington v. Glucksberg, the Court outlined 

two limiting factors to assess when faced with a novel substantive due process 

claim: First, the “fundamental right” asserted must be, “objectively, ‘deeply 

rooted in this Nation’s history and tradition.’” 521 U.S. 702, 720–21 (1997) 

(quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977)). And second, 

29 See also Jay Conison, What Does Due Process Have to Do with Jurisdiction?, 46 

Rutgers L. Rev. 1071, 1158, 1192–99, 1209 (1994) (“The constitutional law of personal 

jurisdiction is a hodge-podge of nineteenth-century natural justice and natural rights, early 

twentieth-century substantive due process, and general law.”). 
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the “asserted fundamental liberty interest” must be amenable to a “careful 

description.” Id. at 527 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). 

We have adopted and applied this framework. See Malagon de Fuentes v. 

Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (“To establish a substantive due 

process violation, a plaintiff must first both carefully describe that right and 

establish it as ‘deeply rooted in this Nation’s history and tradition.’” 

(quoting Glucksberg, 521 U.S. at 720–21)); see also Cantu-Delgadillo v. Holder, 

584 F.3d 682, 687 (5th Cir. 2009). 

In considering whether to introduce into Fifth Amendment Due 

Process Clause jurisprudence a novel substantive due process right to 

immunity from personal jurisdiction in federal court, we ought to follow the 

Glucksberg framework. And that framework clearly precludes the majority 

opinion’s expansion of substantive due process by “reverse incorporating” 

Fourteenth Amendment case law into the Fifth Amendment. 

Taking the second factor first, the right that the majority opinion 

asserts in the name of individual liberty is not amenable to a clear and limited 

description. The Supreme Court itself has wavered in its articulation of the 

liberty interest at stake in its Fourteenth Amendment cases and has 

frequently discussed the issue in terms of “interstate federalism.”30 Case 

30 Compare, e.g., Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 

694, 702 (1982) (“The personal jurisdiction requirement recognizes and protects an 

individual liberty interest.”), with Hanson, 357 U.S. at 251 (noting that limits on personal 

jurisdiction are ultimately a “consequence of territorial limitations on the power of the 

respective States”), Bristol-Myers, 137 S. Ct. at 1780 (same), and World–Wide Volkswagen, 

444 U.S. at 293 (“The sovereignty of each State . . . implie[s] a limitation on the 

sovereignty of all its sister States . . . .”). Scholars too have puzzled over the exact nature 

of the right that the Court’s twentieth-century Fourteenth Amendment jurisprudence has 

wrought. See, e.g., Perdue, Sin, Scandal, and Substantive Due Process, supra, at 511–19; 

Conison, supra, at 1187–1203. 
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law in this area is highly fact-specific,31 and the Supreme Court itself has 

recognized that delimiting defendants’ “liberty interest[s]” vis-à-vis 

personal jurisdiction “necessarily requires determinations ‘in which few 

answers will be written in black and white. The greys are dominant and even 

among them the shades are innumerable.’” Burger King Corp. v. Rudzewicz, 

471 U.S. 462, 471, 486 n.29 (1985) (quoting Kulko v. Super. Ct. of Cal., 436 

U.S. 84, 92 (1978)). It can hardly be said, therefore, that the right of 

immunity that the majority opinion inserts into the Fifth Amendment is 

clearly delimited. 

The bigger problem for the majority opinion, though, is Glucksberg’s 

central requirement that newly posited substantive due process rights be 

objectively deeply rooted in our Nation’s history and traditions. 521 U.S. at 

720–21. As already discussed at length, supra sections II.A–B, longstanding 

English and antebellum American legal history show that “due process of 

law” was not considered to impose substantive limits on the legislative 

body’s ability to expand or contract courts’ jurisdiction. Rather, centuries of 

tradition appear to support the view that even the most “repugnant” exercise 

of jurisdiction over defendants halfway across the globe could very well be 

authorized by Congress. See Picquet, 19 F. Cas. at 613. 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 

31 See, e.g., Polythane Sys. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201, 1207 (5th 

Cir. 1993) (“Determinations regarding the exercise of personal jurisdiction over nonresident defendants must be made on a case-by-case basis.”); Walker v. Newgent, 583 F.2d 

163, 168 (5th Cir. 1978) (“Of necessity, inquiries into whether the exercise of personal 

jurisdiction is permissible in a particular case are sensitive to the facts of each case.”); 

accord uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d 421, 433 (7th Cir. 2010) (“[T]his is a 

field of law where the Supreme Court has repeatedly refused opportunities to draw such 

bright lines.”). 
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the federal judiciary to constitutionalize such under the auspices of ‘due 

process.’32

3. 

Emphasizing defendants’ “individual liberty” interests, ante at 14–17, 

raises another big problem for the majority opinion: Both historically and to 

the present day, foreign criminal defendants have been subjected to federal 

courts’ jurisdiction for crimes committed abroad. This, despite the fact that 

criminal defendants, whose liberty—and very lives—are on the line, are 

always entitled to the very strictest due process rights. See infra section 

IV.D.1. The majority opinion wholly neglects to explain why it elevates 

foreign civil defendants above criminal defendants for special due-process 

solicitude in this context. 

Since at least the seventeenth century, English and early American 

jurisprudence has expressly allowed criminal prosecutions of foreign actors 

for foreign conduct in domestic courts. In the 1820 case of United States v. 

Smith, Justice Story considered English criminal prosecutions from the late 

1690s and early 1700s to be “entitled to great consideration” because of the 

“universal approbation of the legal principles asserted by them.” 18 U.S. (5 

Wheat.) 153, 177–80 n.h (1820) (citing Rex v. Dawson, 13 How. St. Tr. 451, 

454–55 (1696), and Rex v. Kidd, 14 How. St. Tr. 123, 147, 180–83 (1701)). 

Notably, he found it “worthy of remark, that in none of these indictments was 

there any averment that the prisoners were British subjects; and most of them 

were for piracies committed on foreign subjects and vessels.” Id. (emphases 

32 Contra Lea Brilmayer, Jurisdictional Due Process and Political Theory, 39 U. Fla. 

L. Rev. 293, 313 (1987) (noting the dubious judicial “legitimacy of relying upon natural law 

arguments” to support limits on personal jurisdiction, but suggesting that they might 

instead, “with some plausibility, be attributed to the constitutional text,” which is “after 

all, . . . rather vague”). 
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added).33 In other words, there was no jurisdictional problem with 

prosecuting possible foreigners in domestic court for foreign conduct that 

injured other foreigners. Even when nothing about the criminal, the crime, 

or the victim has anything to do with the forum, English courts could hear 

and adjudicate the prosecutions. Due process interposed no jurisdictional 

barrier. 

In contemporary due process jurisprudence, we and our sister circuits 

merely require that when the United States prosecutes a non-citizen for 

foreign conduct there must be “a sufficient nexus between the conduct 

condemned and the United States” such that it “would not be arbitrary or 

fundamentally unfair” for our courts to enter judgment against the 

defendant. See United States v. Rojas, 812 F.3d 382, 393 (5th Cir. 2016) 

(quoting United States v. Lawrence, 727 F.3d 386, 396 (5th Cir. 2013)); 

Restatement (Fourth) of Foreign Relations Law § 403(c) & n.4 (2018) (citing 

sister circuit cases). And “a jurisdictional nexus exists when the aim of that 

activity”—or perhaps merely its effect—“is to cause harm inside the United 

States or to U.S. citizens or interests.” See id. (quoting United States v. Al 

Kassar, 660 F.3d 108 (2d Cir. 2011)); United States v. Murillo, 826 F.3d 152, 

157 (4th Cir. 2016) (“[I]t is not arbitrary to prosecute a defendant in the 

United States if his ‘actions affected significant American interests’—even 

if the defendant did not mean to affect those interests.” (quoting United 

States v. Brehm, 691 F.3d 547, 552–53 (4th Cir. 2012))). 

33 Indeed, in the cited 1696 English case of Rex v. Dawson, the jury instructions of 

the presiding Sir Charles Hedges, the Judge of the High Court of Admiralty, indicated that 

the extraterritorial piracy prosecution was “cognizable of th[at] Court” because “[t]he 

King of England hath not only an empire and sovereignty over the British seas” for “the 

punishment of piracy,” but also “an undoubted jurisdiction and power” in “the most 

remote parts of the world.” 13 How. St. Tr. at 455. 
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So, even though due process today places more limits perhaps on 

federal courts’ criminal jurisdiction than there were historically, this “more 

expansive due process test in criminal cases” is hardly as constraining as the 

test that the majority opinion today demands in the civil context. Waldman 

v. Palestine Liberation Org., 835 F.3d 317, 340 (2d Cir. 2016). Thus, our sister 

circuits have unhesitatingly affirmed convictions in federal district court of 

Somali pirates for murders committed some thirty nautical miles off the 

Somali coast, a Spanish illegal weapons trafficker for deals brokered in Spain 

and Beirut, a Colombian taxicab driver for murdering an undercover 

American DEA special agent in Bogotá, and a leader of an extensive 

international criminal drug enterprise for funding terrorism—among others. 

See, e.g., United States v. Beyle, 782 F.3d 159, 165–69 (4th Cir. 2015) (opinion 

of Wilkinson, J.); Al Kassar, 660 F.3d at 117–20 (opinion of Jacobs, C.J.); 

Murillo, 826 F.3d at 153–54, 156–57; In re Sealed Case, 936 F.3d 582, 593–94 

(D.C. Cir. 2019) (opinion of Griffith, J.).34

The bottom line is this: We can prosecute foreign pirates, arms 

traffickers, murderers, and terrorists in our federal courts for criminal 

conduct abroad; we can condemn them to life imprisonment; we can 

sentence them even to death; but we cannot, on the majority opinion’s 

reasoning, subject them to civil suit in United States federal courts without 

violating due process unless they are “at home” here (or the lawsuit arises 

out of their purposeful “minimum contacts” with the United States). It is 

nonsense on stilts to hold that allowing a civil lawsuit against a foreign 

defendant for foreign conduct violates due process but that a criminal 

prosecution against the same defendant for the same foreign conduct does not. 

34 See also, e.g., United States v. Shibin, 722 F.3d 233 (4th Cir. 2013); United States 

v. Dire, 680 F.3d 446 (4th Cir. 2012); Brehm, 691 F.3d at 552–54; United States v. Ali, 718 

F.3d 929, 944–47 (D.C. Cir. 2013). 
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The Fifth Amendment does not compel us to pronounce such absurdity. As 

originally and subsequently understood, its Due Process Clause imposes no 

stricter limit on personal jurisdiction in civil cases than it does in criminal 

prosecutions; indeed, it imposes no limit on Congress’s ability to extend the 

range of federal courts’ civil process. See supra sections II.A–B. 

D. 

That the Fifth Amendment’s Due Process Clause, as originally 

understood, imposes no direct constraint on Congress’s ability to demarcate 

the extent of federal courts’ power is not necessarily to say that it imposes no 

constraints whatsoever. Indeed, the Due Process Clause secures individual 

liberty not just by requiring that “courts have jurisdiction, period.” Sachs, 

Unlimited Jurisdiction, supra, at 1712 (emphasis removed); supra n.20. In my 

view, it also ensures the rule of law more broadly by guarding against 

arbitrary, capricious, and ad hoc government action. 

In the context of personal jurisdiction, arbitrary modes of process or 

nefarious allocations of judicial authority designed to frustrate notice and fair 

hearing would certainly violate the Due Process Clause. See Sachs, Unlimited 

Jurisdiction, supra, at 1740. Take the fair-hearing requirement, for example. 

“Congress could violate the due process clause by requiring all federal cases 

to be tried in Adak (the westernmost settlement in the Aleutian Islands),” 

because the arbitrarily distant forum “make[s] the offer of adjudication a 

mirage.” Bd. of Trs., Sheet Metal Workers’ Nat. Pension Fund v. Elite Erectors, 

Inc., 212 F.3d 1031, 1036 (7th Cir. 2000) (Easterbrook, J.). 

Now consider the fair notice requirement. Imagine a hypothetical 

Rule 4(k)(3), which says: “Constructive service of process by posting a 

complaint and summons in pig Latin on the Court-House door on the island 

of Tobago establishes personal jurisdiction over any named defendant in any 

federal district court.” This too would obviously founder on Fifth 
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Amendment due process grounds. See Potter v. Castle Const. Co., 355 F.2d 

212, 215 (5th Cir. 1966) (“[D]ue process under the Fifth Amendment . . . 

[requires] ‘notice reasonably calculated, under all the circumstances, to 

apprise interested parties of the pendency of the action and afford them an 

opportunity to present their objections.’” (quoting Mullane v. Cent. Hanover 

Bank & Tr. Co., 339 U.S. 306, 314–315 (1950))). 

III. 

What does the original understanding of the Fifth Amendment’s Due 

Process Clause mean for these cases before us? The answer is really quite 

simple: the plaintiffs’ cases should go forward. Because the Fifth 

Amendment’s Due Process Clause, as originally understood, poses no 

extrinsic limit on Congress’s ability to authorize expansive personal 

jurisdiction in federal courts, the district court had personal jurisdiction over 

NYK pursuant to Rule 4(k)(2).35

The majority opinion instead holds that the Fifth Amendment 

protects corporate defendant NYK against the “concrete burden of 

‘litigating in a distant or inconvenient forum’ and the abstract burden of 

‘submitting to the coercive power of a [forum] that may have little legitimate 

interest in the claims in question.” Ante at 15 (quoting Fourteenth 

Amendment cases World-Wide Volkswagen, 444 U.S. at 291, and BristolMyers, 137 S. Ct. at 1781). Even if, arguendo, we were to accept as true the 

existence of these substantive due process rights, in what way does litigating 

35 Incidentally, the majority opinion quotes with approval the D.C. Circuit’s 

suggestion that “[a]pplying consistent personal-jurisdiction standards under the Fifth and 

Fourteenth amendments is . . . easier to administer.” Ante at 20–21 (quoting Livnat v. 

Palestinian Auth., 851 F.3d 45, 55–56 (D.C. Cir. 2017)). Easier still, I would suggest, is 

simply applying the Fifth Amendment as originally understood. 
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in the United States burden NYK? Put another way, how has NYK’s liberty 

actually been impinged? 

Recall that NYK is a massive multinational corporation—one of the 

largest shipping and logistics companies in the world. And like any modern 

multinational conglomerate, NYK is the consummate cosmopolitan: the 

world is its home. Although formally headquartered in Japan, NYK is 

perfectly at home here in the United States.36 

NYK is no stranger to our shores: Its ships regularly call on at least 

thirty United States ports,37 averaging about 1,500 calls annually—more than 

four calls per day. In a highly fragmented market, it ranked tenth in United 

States containerized export trade and twelfth in import trade in 2013. Part of 

its fleet does nothing but deliver cars to the United States. NYK operates 

twenty-seven shipping terminals in United States ports and air-cargo service 

at six United States airports. Its employees work at the corporation’s 

American subsidiaries. Shares of NYK stock are deposited at the Bank of 

New York Mellon and may be purchased by United States investors. All told, 

NYK reaps roughly $1.5 billion in annual revenue in North America. 

36 The majority opinion correctly cites Daimler to remind us that, under governing 

Fourteenth Amendment jurisprudence, the ‘at home’ test is “an inherently comparative 

inquiry.” Ante at 26. And so it is. But, as this case shows, this “comparative inquiry,” 

which focuses as much on a corporate defendant’s immaterial foreign contacts as on its 

contacts with the United States, ultimately means that “too big to fail” multinational 

corporations are also “too big for general jurisdiction.” See Daimler, 571 U.S. at 143 

(Sotomayor, J., concurring in the judgment); cf. id. at 158 (“[This] proportionality 

approach will treat small businesses unfairly in comparison to national and multinational 

conglomerates. Whereas a larger company will often be immunized from general 

jurisdiction in a State on account of its extensive contacts outside the forum, a small 

business will not be.”). 

37 The record indicates that NYK ships called on forty-one separate United States 

ports located along the east coast, west coast, and Gulf of Mexico between March 2019 and 

February 2020 alone.
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In the course of doing business here, NYK has frequently availed itself 

of the American legal system. The corporation has brought at least seventyeight lawsuits in federal court since 1993 (almost three per year), thus 

invoking the power of our courts to demand over $22 million in damages.38 

38 See Complaint at 3–5, Nippon Yusen Kabushiki Kaisha v. Riverside Navigation 

Ltd., No. 3:20-CV-00588 (M.D. La. Sept. 8, 2020), ECF No. 1 (breach of contract suit 

seeking over $3 million); Complaint at 45–47, Nippon Yusen Kabushiki Kaisha v. Norfolk S. 

Ry. Co., No. 1:20-CV-00858 (D.D.C. Mar. 31, 2020), ECF No. 1 (antitrust violations under 

the Sherman Act and Clayton Act); Complaint at 30–32, Nippon Yusen Kabushiki Kaisha v. 

BNSF Ry. Co., No. 1:20-CV-00790 (D.D.C. Mar. 23, 2020), ECF No. 1 (antitrust 

violations under the Sherman Act and Clayton Act); Complaint at 30–32, Nippon Yusen 

Kabushiki Kaisha v. BNSF Ry. Co., No. 2:20-CV-02570 (D.N.J. Mar. 10, 2020), ECF No. 

1 (antitrust violations under the Sherman Act and Clayton Act); Complaint at 1–3, Nippon 

Yusen Kabushiki Kaisha v. Elite Int’l Corp. L.L.C., No. 1:18-CV-02640 (N.D. Ill. Apr. 12, 

2018), ECF No. 1 (commercial maritime suit seeking almost $80,000); Complaint at 1–2, 

Nippon Yusen Kabushiki Kaisha v. Pactrans Air & Sea, Inc., No. 1:18-CV-02331 (N.D. Ill. 

Mar. 30, 2018), ECF No. 1 (commercial maritime suit seeking almost $30,000); Complaint 

at 3–6, Nippon Yusen Kabushiki Kaisha v. GSF Nut Co., LLC, No. 2:17-CV-05614 (C.D. 

Cal. July 28, 2017), ECF No. 1 (commercial maritime suit seeking over $20,000); 

Complaint at 5–10, Nippon Yusen Kabushiki Kaisha v. Multi-Trans Shipping Agency, Inc., No. 

2:16-CV-09523 (C.D. Cal. Dec. 23, 2016), ECF No. 1 (commercial maritime suit seeking 

$50,000); Complaint at 4–10, Nippon Yusen Kaisha v. BNSF Ry. Co., No. 2:16-CV-00208 

(W.D. Wash. Feb. 11, 2016), ECF No. 1 (commercial dispute seeking damages or 

indemnification of up to $1 million); Complaint at 4–7, Nippon Yusen Kaisha v. Global Fresh 

Inc., No. 2:15-CV-08907 (C.D. Cal. Nov. 16, 2015), ECF No. 1 (commercial maritime suit 

seeking over $35,000); Complaint at 4–7, Nippon Yusen Kaisha v. Best Global Logistics USA, 

Inc., No. 2:15-CV-08540 (C.D. Cal. Nov. 2, 2015), ECF No. 1 (commercial maritime suit 

seeking over $675,000); Complaint at 2–3, Nippon Yusen Kaisha v. Lincoln Gen. Ins. Co., 

No. 1:15-CV-03231 (S.D.N.Y. Apr. 24, 2015), ECF No. 1 (bond dispute seeking almost 

$67,000); Complaint at 4–8, Nippon Yusen Kaisha v. Staudt Int’l Servs. Corp., No. 2:15-CV02516 (C.D. Cal. Apr. 6, 2015), ECF No. 1 (commercial maritime suit seeking over 

$32,000); Complaint at 3–5, Nippon Yusen Kabushiki Kaisha v. Kraiem, No. 2:15-CV-01364 

(D.N.J. Feb. 23, 2015), ECF No. 1 (suit to obtain security against state-court judgment for 

up to $100,000); Complaint at 3–6, Nippon Yusen Kaisha v. Wesmex Inc., No. 8:14-CV01910 (C.D. Cal. Dec. 3, 2014), ECF No. 1 (commercial maritime suit seeking about 

$28,000); Complaint at 3–6, Nippon Yusen Kaisha v. Am. Recreation Prods., No. 2:14-CV08428 (C.D. Cal. Oct. 30, 2014), ECF No. 1 (commercial maritime suit seeking around 

$27,000); Complaint at 3–6, Nippon Yusen Kaisha v. Pandol Assocs. Marketing, Inc., No. 

2:14-CV-08055 (C.D. Cal. Oct. 17, 2014), ECF No. 1 (commercial maritime suit seeking 
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about $70,000); Complaint at 3–5, Nippon Yusen Kaisha v. Infinity 8 Int’l Trade LLC, No. 

2:14-CV-03419 (C.D. Cal. May 2, 2014), ECF No. 1 (commercial maritime suit seeking 

approximately $57,000); Complaint at 2–4, Nippon Yusen Kaisha v. Arch Ins. Co., No. 1:14-

CV-01369 (S.D.N.Y. Feb. 28, 2014), ECF No. 2 (bond dispute seeking around $75,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. Latvian Am. Shipping Line Inc., No. 1:13-CV04592 (S.D.N.Y. July 2, 2013), ECF No. 1 (breach of contract suit seeking almost $25,000); 

Complaint at 3–4, Nippon Yusen Kaisha v. Millenium Plus, Inc., No. 2:13-CV-03029 (C.D. 

Cal. Apr. 30, 2013), ECF No. 1 (commercial maritime suit seeking about $32,000); 

Complaint at 4–6, Nippon Yusen Kaisha v. Agape Int’l Shipping, No. 2:12-CV-10068 (C.D. 

Cal. Nov. 26, 2012), ECF No. 1 (commercial maritime suit seeking about $42,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. Shiplane Transport, Inc., No. 2:12-CV-05951 

(D.N.J. Sept. 21, 2012), ECF No. 1 (breach of contract suit seeking about $62,000); 

Complaint at 4–6, Nippon Yusen Kaisha v. Air Sea Cargo Network, Inc., No. 2:12-CV-07790 

(C.D. Cal. Sept. 11, 2012), ECF No. 1 (commercial maritime suit seeking about $17,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. FIL Lines USA Inc., No. 1:12-CV-06643 

(S.D.N.Y. Aug. 30, 2012), ECF No. 1 (commercial maritime suit seeking almost $48,000); 

Complaint at 3–5, Nippon Yusen Kaisha v. Cargo Int’l Forwarders & NVOCC, Inc., No. 2:12-

CV-07266 (C.D. Cal. Aug. 23, 2012), ECF No. 1 (commercial maritime suit seeking about 

$22,000); Complaint at 3–5, Nippon Yusen Kaisha v. Sunshine Shipping, Inc., No. 2:12-CV05473 (C.D. Cal. June 22, 2012), ECF No. 1 (commercial maritime suit seeking over 

$151,000); Complaint at 3–5, Nippon Yusen Kaisha v. TJD Int’l, Inc., No. 2:11-CV-07301 

(D.N.J. Dec. 16, 2011), ECF No. 1 (breach of contract suit seeking over $110,000); 

Complaint at 1–3, Nippon Yusen Kaisha v. Shiplane Transport, Inc., No. 1:11-CV-06327 

(S.D.N.Y. Sept. 9, 2011), ECF No. 1 (indemnity suit seeking $60,000); Complaint at 4–10, 

Nippon Yusen Kaisha v. BNSF Ry. Co., No. 2:11-CV-00978 (W.D. Wash. June 10, 2011), 

ECF No. 1 (commercial dispute seeking damages or indemnification of around $312,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. Summer Breeze Transport, Inc., No. 1:10-CV22185 (S.D. Fla. July 2, 2010), ECF No. 1 (commercial maritime dispute seeking almost 

$287,000); Complaint at 5–10, Nippon Yusen Kaisha v. BNSF Ry. Co., No. 2:10-CV-03190 

(C.D. Cal. Apr. 28, 2010), ECF No. 1 (commercial dispute seeking damages or 

indemnification of around $3.16 million); Complaint at 1–2, Nippon Yusen Kaisha v. Wing 

Lee Dev., Inc., No. 1:09-CV-09521 (S.D.N.Y. Nov. 16, 2009), ECF No. 1 (commercial 

maritime dispute seeking $24,540); Complaint at 1–2, Nippon Yusen Kaisha v. Nick’s Int’l 

Shipping, Inc., No. 1:09-CV-09520 (S.D.N.Y. Nov. 16, 2009), ECF No. 1 (commercial 

maritime dispute seeking just over $95,000); Complaint at 2, Nippon Yusen Kaisha v. 

Triship Glob. Logistics, Inc., No. 1:09-CV-09519 (S.D.N.Y. Nov. 16, 2009), ECF No. 1 

(admiralty suit seeking over $38,000); Complaint at 1–2, Nippon Yusen Kaisha v. United 

Trans-Trade, Inc., No. 1:09-CV-09518 (S.D.N.Y. Nov. 16, 2009), ECF No. 1 (commercial 

maritime dispute seeking around $28,000); Complaint at 4–6, Nippon Yusen Kaisha v. 817 

Rolls Knitted Fabric 100% Poly Charmeuse, No. 1:09-CV-05974 (S.D.N.Y. June 30, 2009), 

ECF No. 1 (in rem admiralty suit seeking around $85,000); Complaint at 1–3, Nippon Yusen 
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Kaisha v. Baltic Auto Shipping, Inc., No. 1:09-CV-05698 (S.D.N.Y. June 22, 2009), ECF 

No. 1 (suit seeking around $250,000); Complaint at 3–5, Nippon Yusen Kaisha v. Cargo Int’l 

Forwarders & NVOCC, Inc., No. 1:09-CV-05697 (S.D.N.Y June 22, 2009), ECF No. 1 

(breach of contract suit seeking about $50,000); Complaint at 1–3, Nippon Yusen Kaisha v. 

Green Vanderbilt Corp., No. 1:09-CV-04464 (S.D.N.Y. May 8, 2009), ECF No. 1 (breach 

of contract suit seeking around $85,000); Complaint at 1–3, Nippon Yusen Kaisha v. JJB 

Trucking & Shipping Servs. Corp., No. 1:09-CV-04444 (S.D.N.Y. May 8, 2009), ECF No. 1 

(breach of contract suit seeking around $14,000); Complaint at 1–3, Nippon Yusen Kaisha 

v. Fish On Bait Co., LLC, No. 1:09-CV-04443 (S.D.N.Y. May 8, 2009), ECF No. 1 (breach 

of contract suit seeking about $100,000); Complaint at 1–3, Nippon Yusen Kaisha v. 

Seaspeed Overseas Shipping Co., No. 1:09-CV-04442 (S.D.N.Y. May 8, 2009), ECF No. 1 

(breach of contract suit seeking roughly $18,000); Complaint at 1, Nippon Yusen Kaisha v. 

Relampago Express Transportes, No. 1:09-CV-04439 (S.D.N.Y. May 8, 2009), ECF No. 1 

(breach of contract suit seeking around $35,000); Complaint at 1–3, Nippon Yusen Kaisha 

Line v. EMU Lines PVT LTD., No. 1:09-CV-00665 (S.D.N.Y. Jan. 23, 2009), ECF No. 1 

(breach of contract suit seeking around $33,000); Complaint at 2–4, Nippon Yusen Kaisha 

v. TJD Int’l Inc., No. 2:08-CV-06349 (D.N.J. Dec. 24, 2008), ECF No. 1 (admiralty suit 

seeking around $500,000); Complaint at 2–4, Nippon Yusen Kaisha v. Fortune Ocean 

Shipping Ltd., No. 1:08-CV-09887 (S.D.N.Y Nov. 14, 2008), ECF No. 1 (commercial 

maritime suit seeking about $200,000); Amended Complaint at 2–6, Nippon Yusen Kaisha 

v. N. China Shipping Ltd. BHM, No. 1:08-CV-09850 (S.D.N.Y Nov. 13, 2008), ECF No. 3 

(commercial maritime suit seeking over $293,000); Complaint at 7–12, NYK Line (N. Am.) 

Inc. & Nippon Yusen Kabushiki Kaisha v. New Amera Transit, Inc., 2:08-CV-05505 (D.N.J. 

Nov. 6, 2008), ECF No. 1 (breach of contract suit seeking $265,000); Complaint at 1–2, 

Nippon Yusen Kaisha v. Plastic Nation Inc., No. 1:08-CV-06736 (S.D.N.Y July 29, 2008), 

ECF No. 1 (breach of contract suit seeking over $23,000); Complaint at 2–5, Nippon Yusen 

Kaisha v. McDonough Indus. LLC, No. 1:08-CV-03444 (S.D.N.Y Apr. 8, 2008), ECF No. 1 

(breach of contract suit seeking attachment of up to $1.3 million); Complaint at 7–12, NYK

Line (N. Am.) Inc. & Nippon Yusen Kabushiki Kaisha v. BNSF Ry. Co., 2:08-CV-00320 

(W.D. Wash. Feb. 22, 2008), ECF No. 1 (breach of contract suit seeking at least $130,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. Am. Heritage Furniture, Inc., No. 1:08-CV-00488 

(S.D.N.Y Jan. 18, 2008), ECF No. 1 (breach of contract suit seeking about $30,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. Q.P.S. Materials, Inc., No. 1:08-CV-00487 

(S.D.N.Y Jan. 18, 2008), ECF No. 1 (breach of contract suit seeking about $23,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. Yanfield Int’l Corp., No. 1:08-CV-00486 

(S.D.N.Y Jan. 18, 2008), ECF No. 1 (breach of contract suit seeking about $25,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. Distrib. I (USA), Inc., No. 1:08-CV-00484 

(S.D.N.Y Jan. 18, 2008), ECF No. 1 (breach of contract suit seeking almost $100,000); 

Complaint at 2, Nippon Yusen Kaisha v. Freight Servs. of W. Coast Corp., No. 1:07-CV-07840 

(S.D.N.Y Sept. 5, 2007), ECF No. 1 (breach of contract suit seeking just shy of $60,000); 

Complaint at 1–2, Nippon Yusen Kaisha v. Fresh W. Exch., No. 1:07-CV-07839 (S.D.N.Y 
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Sept. 5, 2007), ECF No. 1 (breach of contract suit seeking over $36,000); Complaint at 1–

2, Nippon Yusen Kaisha v. Anderson Int’l Global, LLC, No. 1:07-CV-07838 (S.D.N.Y Sept. 

5, 2007), ECF No. 1 (breach of contract suit seeking around $170,000); Complaint, Nippon 

Yusen Kaisha v. BNSF Ry. Co., No. 2:07-CV-02896 (C.D. Cal. May 2, 2007), ECF No. 1 

(docket indicates demand for approximately $225,000); Complaint, Nippon Yusen Kaisha 

v. BNSF Ry. Co., No. 2:07-CV-02417 (C.D. Cal. Apr. 11, 2007), ECF No. 1 (docket 

indicates demands for around $13,000); Complaint at 1–2, Nippon Yusen Kaisha v. Zircon 

Logistics, Inc., No. 1:07-CV-02874 (S.D.N.Y. April 10, 2007), ECF No. 1 (breach of 

contract suit seeking $135,000); Complaint at 1–2, Nippon Yusen Kaisha v. Air 7 Seas Trans 

Logistics, No. 1:07-CV-02873 (S.D.N.Y Apr. 10, 2007), ECF No. 1 (breach of contract suit 

seeking $75,000); Complaint at 4–10, Nippon Yusen Kaisha v. BNSF Ry. Co., 3:07-CV00563 (N.D. Cal. Jan. 26, 2007), ECF No. 1 (commercial dispute seeking damages or 

indemnification of over $255,000); Amended Complaint at 5–10, Nippon Yusen Kaisha v. 

BASF Corp., 3:06-CV-03704 (N.D. Cal. June 9, 2006), ECF 43 (suit seeking to avoid or 

limit liability for loss of goods in transit); Complaint at 6–11, Nippon Yusen Kaisha v. BNSF 

Ry. Co., 3:05-CV-03609 (N.D. Cal. Sept. 7, 2005), ECF No. 1 (commercial dispute seeking 

damages or indemnification of over $6 million); Complaint, Nippon Yusen Kaisha v. Union 

Pac. Ry. Co., 2:04-CV-08861 (C.D. Cal. Oct. 26, 2004), ECF No. 1; Complaint, NYK Line 

(N. Am.) Inc. & Nippon Yusen Kaisha v. BNSF Ry. Co., 2:00-CV-02728 (C.D. Cal. Mar. 16, 

2000), ECF No. 1 (docket indicates demand for around $411,000); Complaint, Nippon 

Yusen Kaisha v. Bulktrans (Eur.) Corp., No. 1:00-CV-00573 (S.D.N.Y Jan. 27, 2000), ECF 

No. 1 (docket indicates demand for $500,000); Complaint, Nippon Yusen Kaisha v. 

Kellaway Transp., Inc., No. 2:99-CV-01441 (D.N.J. Mar. 29, 1999), ECF No. 1; Complaint, 

Trans-Pac. Policing Agreement & Nippon Yusen Kaisha, Ltd. v. U.S. Customs Serv., No. 1:97-

CV-02188 (D.D.C. Sept. 22, 1997), ECF No. 1; Complaint, Nippon Yusen Kaisha v. Velsicol 

Chem., 2:97-CV-03176 (C.D. Cal. Apr. 30, 1997), ECF No. 1 (docket indicates demand for 

roughly $168,000); Complaint, Nippon Yusen Kaisha v. Atlantic Ro/Ro Carriers of Tex., Inc., 

No. 2:96-CV-04020 (D.N.J. Aug. 22, 1996), ECF No. 1 (docket indicates demand for 

around $2,000); Complaint, Nippon Yusen Kaisha v. W. Ave. Serv., No. 1:96-CV-06137 

(S.D.N.Y. Aug. 14, 1996), ECF No. 1 (docket indicates a demand for approximately 

$14,000); Complaint, Nippon Yusen Kaisha v. Jeri-Jo Inc., 2:95-CV-06287 (D.N.J. Dec. 18, 

1995), ECF No. 1 (docket indicates a demand of around $548,000); Complaint, Nippon 

Yusen Kaisha v. Kellaway Transp. Inc., 2:95-CV-04349 (D.N.J. Aug. 16, 1995), ECF No. 1 

(docket indicates a demand for approximately $131,000); Complaint, Nippon Yusen Kaisha 

Line v. Packard Bell, 2:94-CV-03484 (C.D. Cal. May 26, 1994), ECF No. 1; Complaint, Am. 

President Lines, Ltd. & Nippon Yusen Kaisha, et al. v. Kirch Indus. Co., No. 1:93-CV-00497 

(D.D.C. Mar. 9, 1993), ECF No. 1; see also Third-Party Complaint, Tokio Marine & Fire Ins. 

Co., Ltd. v. M/V Joyous Age, No. 1:03-CV-06346 (S.D.N.Y. Aug. 22, 2003), ECF 4; ThirdParty Complaint, Thyssen Krupp Steel v. M/V Andorinha, No. 1:01-CV-04305 (S.D.N.Y. 

May 21, 2001), ECF No. 10; Third-Party Complaint, Talatala v. Nippon Yusen Kaisma, No. 

1:94-CV-00340 (D. Haw. May 5, 1994), ECF No. 19 (party name spelled “Kaisma” rather 
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It has quite regularly defended itself from suit here as well39—likely at its own 

invitation: NYK’s bills of lading and sea waybills affirmatively select the 

Southern District of New York as the exclusive forum for all disputes 

thereunder. 

It strains belief to suggest that the United States is really “a distant or 

inconvenient forum” for NYK or that NYK is abstractly burdened by 

“submitting to” United States federal courts’ “coercive power.” For one 

thing, it is hardly too distant or inconvenient for NYK to do business here; 

why, then, is litigation here too distant and inconvenient? It is hardly too 

distant or inconvenient for NYK to litigate here as a plaintiff; why, then, is it 

too distant and inconvenient as a defendant? NYK clearly welcomes the 

opportunity to take advantage of the United States’ robust marketplace, an 

economy fostered by the rule of law that our judicial system ensures, and the 

corporation freely avails itself of federal courts as a plaintiff. Can NYK really 

complain about submitting to federal judicial power when NYK enjoys the 

security that that power provides? And can NYK really argue that the 

United States has “little legitimate interest” in adjudicating claims brought 

than “Kaisha” on the docket); Third-Party Complaint, Okura & Co. (Am.), Inc. v. M.V. 

Yamataka Maru, No. 1:92-CV-03783 (S.D.N.Y. May 26, 1992), ECF No. 6; Complaint at 

4–5, Nippon Yusen Kaisha v. Bankers Ins. Co., No. 8:19-CV-01343 (M.D. Fla. June 3, 2019), 

ECF No. 1-3 (removed from state court). 

As matters of public record, complaints filed in federal court are properly subject 

to judicial notice. Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017) (“[W]e may take 

judicial notice of matters of public record.”). 

39 Ante at 4 n.4 (citing complaints filed against NYK in federal court). NYK also 

pleaded guilty in 2014 to criminal antitrust charges for its conduct in shipping cargo “to 

and from the United States and elsewhere.” Information, United States v. Nippon Yusen 

Kabushiki Kaisha (D. Md. 2014) (alleging corporate violations of 15 U.S.C. § 1 (Sherman 

Act)); Plea Agreement at 2, 6, United States v. Nippon Yusen Kabushiki Kaisha, 1:14-CR00612 (D. Md. Mar. 11, 2015), ECF No. 20 (agreeing to a fine of $59.4 million). 
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under United States federal law by United States servicemen and their 

families? 

The cases before us present no due process problems. Plaintiffs 

properly brought suit pursuant to Rule 4(k)(2). NYK has no substantive due 

process right to be immune from suit here. And even if it did, none of its 

supposed liberty interests have actually been infringed. The Fifth 

Amendment’s Due Process Clause poses no obstacle, so these suits should 

proceed.40

IV. 

The tail should not wag the dog any more than the bow should turn 

the ship. While the anticipated repercussions of a constitutional ruling 

should not drive the ultimate determination on the merits, it is nonetheless 

worth calling attention to the severe and anomalous consequences of today’s 

majority holding. First, it will render most of Rule 4(k)(2)’s intended 

40 NYK has not alleged any other due process issues with these cases, and nor 

could it: The applicable Federal Rules of Civil Procedure are in no way arbitrary or 

calculated to frustrate notice. Rule 4(k)(2) reasonably addresses the problem that would 

arise when a plaintiff has federal law claims against a “defendant [who] is not subject to 

jurisdiction in any state’s courts of general jurisdiction.” In such a case, it would be absurd 

if United States federal law claims (brought by United States servicemen, no less) could not 

be heard in United States federal court, simply because no individual state’s courts had 

jurisdiction pursuant to state long-arm statutes or in keeping with the strictures of the 

Fourteenth Amendment (which apply to the states). See Fed. R. Civ. P. 4(k)(1)(A). Rule 

4(k)(2) solves the problem by specifying that “serving a summons [per Rule 4(f)] or filing 

a waiver of service [per Rule 4(d)] establishes [a federal district court’s] personal 

jurisdiction over a defendant” in such a case. In this case, no state had jurisdiction to hear 

the federal law claims of the plaintiff servicemen and their bereaved families. So, they filed 

their complaints in federal court, and they successfully obtained waivers of service from 

NYK in Tokyo. NYK received ample notice of the pending lawsuits. And evidently, this 

multinational corporate defendant had no more trouble getting a fair hearing here in federal 

court as a defendant than it has had prosecuting dozens of civil cases as a plaintiff in federal 

court. 
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applications unconstitutional, thereby reducing the statutorily authorized 

rule41 to a virtual nullity.42 Second, it will similarly choke Rule 4(k)(1)(C), 

which “establishes personal jurisdiction over a defendant” by “[s]erving a 

summons or filing a waiver of service . . . when authorized by a federal 

statute.” As a result, American victims of terrorist attacks abroad and Cuban 

refugees who have lost everything to Communist confiscation will not be 

able, meaningfully, to avail themselves of remedial federal legislation. And 

finally, today’s holding also brings about a couple of anomalies: (1) civil

foreign defendants now have more due process rights than criminal foreign 

defendants; and (2) foreign corporations now receive more due process 

protection than domestic corporations under our own Constitution. 

A.

Today’s majority holding guts Rule 4(k)(2) of virtually all of its 

intended applications. Instead of examining the Fifth Amendment Due 

Process Clause’s original meaning, the en banc court simply rides the wake of 

inapposite Supreme Court Fourteenth Amendment jurisprudence. 

Promulgated in 1993 in response to the Supreme Court’s decision in Omni 

Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97 (1987), Rule 4(k)(2) 

was designed to authorize federal courts to exercise personal jurisdiction over 

41 Rule 4(k) was adopted under the Judicial Improvements and Access to Justice 

Act of 1988. See Pub. L. No. 100-702, § 401, 102 Stat. 4642, 4648 (codified as amended at 

28 U.S.C. § 2072). 

42 Cf. Sveen v. Melin, 138 S. Ct. 1815, 1831 (2018) (Gorsuch, J., dissenting) (“The 

judicial power to declare a law unconstitutional should never be lightly invoked.”); Lamar 

Outdoor Advert. v. Miss. St. Tax Comm’n, 701 F.2d 314, 333 (5th Cir. 1983) (“We recognize 

that our power to strike down state laws as unconstitutional is strong medicine; we do not 

administer it lightly.”); El Paso & Ne. Ry. Co. v. Gutierrez, 215 U.S. 87, 96 (1909) (“It is 

hardly necessary to repeat what this court has often affirmed, that an act of Congress is not 

to be declared invalid except for reasons so clear and satisfactory as to leave no doubt of its 

unconstitutionality.”). 
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federal claims that could not otherwise be heard in any state court to the 

fullest extent consistent with the Constitution. If the Fifth Amendment 

mirrors the Fourteenth Amendment, Rule (4)(k)(2)’s range of applications 

nearly vanishes. 

Consider first general jurisdiction. The Supreme Court has said that 

the Fourteenth Amendment only allows the exercise of general personal 

jurisdiction over a foreign defendant who is “essentially at home” in the 

United States—an “exceptional case” very seldom encountered in real life. 

Daimler, 571 U.S. at 139 & n.19 (citing Perkins v. Benguet Consol. Mining Co., 

342 U.S. 437, 447–48 (1952)). Rarely is a foreign-domiciled corporation 

deemed “at home” in the United States. Yet these foreign-domiciled 

corporations are precisely the prospective defendants to whom Rule 4(k)(2) 

was thought to apply. 

The majority opinion suggests specific jurisdiction would remain 

available under Rule 4(k)(2). Ante at 22–23 & n.27. Maybe so. A few 

occasional applications of the Rule could conceivably arise, for instance, 

when claims arise in states with long-arm statutes that stop short of the 

constitutional maximum,43 or when cyber-injuries affect the United States as 

43 Specifically, Rule 4(k)(2) could apply where: (1) a defendant has minimum 

contacts with a forum state that has a long-arm statute that stops short of the constitutional 

limit; (2) the defendant’s contacts fall between the constitutional and statutory lines; and 

(3) no other state forum is available. 

In our circuit, such applications of the Rule could arguably only arise out of 

Mississippi, which has a somewhat limited long-arm statute. Compare Miss. Stat. § 13-3-

57 (2003) (Mississippi long-arm statute); Gross v. Chevrolet Country, Inc., 655 So. 2d 873, 

877–78 (Miss. 1995) (analyzing statutory factors to determine that a nonresident 

corporation was “not amenable to jurisdiction in Mississippi pursuant to [the state] long 

arm statute”), with Tex. Civ. Prac. & Rem. Code § 17.042 (2001) (Texas long-arm statute); 

Searcy v. Parex Res., Inc., 496 S.W.3d 58, 66 (Tex. 2016) (“The Texas long arm statute 

provides for personal jurisdiction that extends to the limits of the United States 

Constitution, and so federal due process requirements shape the contours of Texas courts’ 
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a whole and no state in particular. But, as with general jurisdiction, it would 

still be the “exceptional case.” 

Because the majority opinion lashes together the Fifth and Fourteenth 

Amendment personal jurisdiction standards without distinction, Fourteenth 

Amendment limitations on specific jurisdiction now apply likewise to Fifth 

Amendment cases. And the Supreme Court has said that for courts to have 

specific jurisdiction to entertain certain claims, the Fourteenth Amendment 

requires the underlying injury to have occurred, at least in part, in the forum. 

Bristol-Myers, 137 S. Ct. at 1781–82 (“In order for a court to exercise specific 

jurisdiction over a claim, there must be an ‘affiliation between the forum and 

the underlying controversy, principally, [an] activity or an occurrence that 

takes place in the forum State.’” (quoting Goodyear Dunlop Tires Operations, 

S.A. v. Brown, 564 U.S. 915, 919 (2011))); cf. Ford Motor Co., 141 S. Ct. at 

1028, 1030–31 (upholding specific jurisdiction in states where Ford 

“systematically served a market . . . for the very vehicles that the plaintiffs 

allege malfunctioned and injured them in those States”). 

Applying Bristol-Myers’s forum-injury requirement would squelch 

federal courts’ exercise of specific jurisdiction over American injuries 

sustained abroad, just as Daimler’s “at home” test would squash federal 

courts’ exercise of general jurisdiction over foreign corporate defendants 

doing substantial, considerable business in the United States. As a result, 

Rule 4(k)(2)—a congressionally authorized rule—will indeed be rendered 

virtually a nullity—and this as a result of casual reliance on inapposite 

Supreme Court precedent. Cf. United States v. Morrison, 529 U.S. 598, 607 

(2000) (“Due respect for the decisions of a coordinate branch of 

jurisdictional reach.”), and La. R.S. § 13:3201 (Louisiana long-arm statute); Bridges v. 

Autozone Props., Inc., 900 So. 2d 784, 803 (La. 2005) (“[T]he limits of Louisiana’s longarm statute [are] coextensive with the limits of constitutional Due Process.”). 
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Government demands that we invalidate a congressional enactment only upon 

a plain showing that Congress has exceeded its constitutional bounds.” 

(emphasis added)). 

B. 

Today’s decision also threatens to sink our ability to hear many cases 

sounding in admiralty—an area of law in which we have long been 

empowered to adjudicate claims involving far-flung parties aboard vessels in 

far-flung places on the seven seas. Federal courts hold a unique role in 

admiralty to define causes of action and to hear cases arising in the world’s 

common areas—the high seas—as the Supreme Court has made clear. See

Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 20–21 (1963) (“Article III of the 

Constitution vested in the federal courts jurisdiction over admiralty and 

maritime cases . . . . This Court has long recognized its power and 

responsibility in this area and has exercised that power where necessary to do 

so.”); The Belgenland, 114 U.S. 355, 368–69 (1885) (noting that there is “no 

good reason” why a party injured on the high seas “should ever be denied 

justice in our courts,” even when both parties are “foreigners”); cf. The 

Dutra Group v. Batterton, 139 S. Ct. 2275, 2278 (2019) (discussing the history 

of federal courts “enlarged and liberal” maritime and admiralty 

jurisprudence (quoting Brown v. Lull, 4 F. Cas. 407, 409 (C.C.D. Mass. 1836) 

(No. 2,018) (Story, J.))). 

We and our sister circuits regularly hear cases involving diverse 

international parties arising out of events occurring on waters far away. See, 

e.g., Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1142–43, 1145–

46 (5th Cir. 1984) (applying The Belgenland to “retain jurisdiction” over an 

admiralty suit involving Taiwanese and Hong Kong sailors on a Liberian ship 

that crashed with a Greek ship off the coast of Algeria), overruled on other 

grounds by In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821 
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F.2d 1147 (5th Cir. 1987); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 450–54 (2d 

Cir. 1975) (mentioning no jurisdictional issue in a lawsuit between German 

and Panamanian interests as to vessels shipwrecked in the English channel); 

id. at 455 (Oakes, J., dissenting) (noting that because the court was “dealing 

. . . with a transitory action, a collision occurring on the high seas, albeit in 

the English Channel, between vessels of foreign registry, with foreign 

nationals as plaintiffs . . . . we have jurisdiction”); Gkiafis v. S.S. Yiosonas, 

387 F.2d 460, 462 (4th Cir. 1967) (“A suit in admiralty between foreigners is 

within the jurisdiction of the District Courts of the United States. Not only 

does jurisdiction exist, but it will be exercised ‘unless special circumstances 

exist to show that justice would be better subserved by declining it.’” 

(quoting The Belgenland, 114 U.S. at 367)). 

Although the present case involves a collision occurring in Japanese 

territorial waters, the majority holding could impact future cases arising on 

the briny deep far from any other sovereign. Because the en banc majority 

declines to plumb the Fifth Amendment’s original public meaning, we are 

now stuck with an atextual, ahistorical rule that might constrict our ability 

even to hear cases that arise beyond any nation’s territorial power. Suppose, 

for instance, the collision that spawned this case took place as the ships were 

passing Hawaii—but just outside of United States territorial waters. Even 

though the claims would have arisen on the high seas, and indeed, much 

closer to the United States than Japan, the holding of the majority opinion 

would still require the plaintiffs to go all the way to Japan to pursue their 

claims because NYK is not “at home” in the United States. This should 

give us pause. 

C. 

This may seem like an academic debate about the quirks of civil 

procedure. But consider what this means in the real world. As Judge 
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Higginson rightly observes, today’s holding will “redirect United States 

citizen-plaintiffs—asserting United States federal law claims and invoking 

United States federal law service of process—offshore, often to countries 

with far less developed legal systems than Japan.” Post at 99. In significantly 

curtailing plaintiffs’ recourse to our nation’s federal courts, the majority’s 

decision effectively neuters Congress of its ability to use our own legal system 

and its well-established rule of law to help right the most grievous wrongs 

committed against Americans abroad. 

Look no further than the amicus brief submitted by victims of the 

Castro regime. In response to Castro’s terrorist acts, Congress passed and 

President Clinton signed the Cuban Liberty and Democratic Solidarity 

(LIBERTAD) Act of 1996. Pub. L. No. 104-114, 110 Stat. 785 (codified at 22 

U.S.C. § 6021, et seq.) [hereinafter Helms–Burton Act, as it is commonly 

known]. The Helms–Burton Act sought to impose international sanctions on 

the Castro regime. Specifically, under Title III of the Act, Congress provided 

that “[t]o deter trafficking in wrongfully confiscated property, United States 

nationals who were the victims of [such] confiscations should be endowed 

with a judicial remedy in the courts of the United States that would deny 

traffickers any profits from economically exploiting Castro’s wrongful 

seizures.” 22 U.S.C. § 6081(11); see also id. § 6082(a)(1)(A). 

Despite Congress providing this remedy, every President from 1996 

to 2019 lawfully suspended that private right of action. See id. § 6085(c) 

(giving the President such authority). But in 2019, President Trump ended 

the suspension of Title III, which enabled suits to be filed against those 

trafficking in this stolen property. See Glen v. Am. Airlines, Inc., 7 F.4th 331, 

333 (5th Cir. 2021). As a result, the victims of the Castro regime’s pervasive 

seizure of Cuban assets can seek relief from those foreign actors that reaped 

profits from the victims’ stolen property abroad. See, e.g., Herederos de 

Roberto Gomez Cabrera, LLC v. Teck Res. Ltd., 535 F. Supp. 3d 1299, 1304–07 
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(S.D. Fla. 2021), appeal filed, No. 21-12834 (11th Cir. Aug. 18, 2021) (seeking 

relief under the Helms–Burton Act and presently appealing dismissal for lack 

of personal jurisdiction). 

However, it is an empty gesture here in this circuit. That is because 

(according to the majority opinion) the Fifth Amendment’s Due Process 

Clause bars Congress from authorizing federal courts to exercise personal 

jurisdiction unless either (1) the foreign actor is “essentially at home” here, 

or (2) the foreign actor’s trafficking of the stolen property has substantially 

occurred in the United States. By constitutionally cabining Rule 4(k)(2), and 

also necessarily limiting Rule 4(k)(1)(C), the victims of the Castro regime are 

again left empty-handed. 

This is not a one-off problem confined to the Helms–Burton 

Act. Take the Antiterrorism Act, which provided victims of terrorism abroad 

a private right of action in our federal courts. 18 U.S.C. § 2333(a). Now, so 

long as foreign sponsors of terrorism target American interests abroad, 

federal district courts cannot exercise personal jurisdiction over victims’ 

claims, despite Congress’s express statutory permission (as recognized by 

Rule 4(k)(1)(C))—this, supposedly because of the Fifth Amendment’s Due 

Process Clause. See, e.g., Aaron D. Simowitz, The Private Law of Terror, 126 

Penn St. L. Rev. 159, 192–93 (2021); see also Brief of Intervenor–Appellant 

United States at 35–40, Fuld v. Palestinian Liberation Org. (2d Cir. June 24, 

2022) (Nos. 22-76, 22-496) (noting that “Congress . . . has enacted 

numerous laws, including the ATA, combating acts of international terrorism 

outside the United States that affect U.S. persons and interests” by vesting 

federal courts with adjudicative authority, and arguing that the Fifth 

Amendment interposes no obstacle to federal court personal jurisdiction in 

such cases). 
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Consider also the practical effect of the majority opinion’s holding on 

the Executive. As amici civil procedure professors point out, if the United 

States sued foreign defendants in our federal courts to recover civil damages 

for injuries sustained abroad (like, for instance, a Navy vessel wrecked in 

foreign waters), the holding in this case equally precludes us from exercising 

personal jurisdiction over foreign defendants if they are not “essentially at 

home” in the United States. Thus, under the majority opinion’s reasoning, 

the federal government is powerless to vindicate American interests and to 

recoup damages inflicted (ultimately) on the American taxpayer in our own 

federal courts because the Fifth Amendment’s Due Process Clause protects 

a foreign defendant from being haled into our courts.44 The harsh absurdity 

of this conclusion should surely make us think twice. 

D. 

Not only does the majority opinion virtually erase a Federal Rule of 

Civil Procedure and squash the real-world ability of our coordinate branches 

to pursue legitimate objectives through and in federal court, but, as suggested 

earlier, see supra sections II.C.2–3, this en banc holding also creates at least 

two legal anomalies. First, we now privilege civil foreign defendants with a 

due process right not shared by foreign criminal defendants. And second, we 

privilege foreign corporations over comparable corporations domiciled here: 

the former can reap the rewards of doing business here without the legal 

44 Cf. The Belgenland, 114 U.S. at 368–69 (“[W]here the parties are not only 

foreigners, but belong to different nations, and the injury . . . takes place on the high seas, 

there seems to be no good reason why the party injured, or doing the service, should ever 

be denied justice in our courts.”). If an injured foreign party suing another foreigner “should 

[n]ever be denied justice in our courts,” a fortiori, neither should an injured United States 

citizen or the United States itself. 
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consequences to which our own corporations must submit. Both anomalies 

suggest that the en banc court has lost its bearings. 

1. 

“The due process requirements in a civil case where only property 

interests are at stake are, of course, much less stringent than in a criminal case 

involving life and liberty interests.” Fehlhaber v. Fehlhaber, 681 F.2d 1015, 

1027 (5th Cir. 1982) (emphases added). These heightened stakes account for 

the many differences between civil and criminal procedure: Criminal 

defendants, for instance, must be proven guilty beyond a reasonable doubt, 

while civil defendants ordinarily need only be found liable by a 

preponderance of the evidence. See In re Winship, 397 U.S. 358, 364 

(1970). Criminal defendants are entitled to receive exculpatory evidence 

from the prosecution without asking for it; civil defendants proactively must 

use discovery to get the evidence that they need. See Brady v. Maryland, 373 

U.S. 83, 86 (1963). The list goes on. 

Today’s majority opinion produces a troubling inversion of this 

general rule. Along with our sister circuits, we have previously held that 

federal courts may render binding judgments against foreigners in criminal 

cases, regardless of the defendants’ territorial contacts with the United 

States, so long as the defendants’ alleged criminal conduct affected the 

United States or U.S. nationals abroad.45 See, e.g., Rojas, 812 F.3d at 393 (“In 

45 Of course, the federal courts’ ability to render binding criminal judgments 

against foreigners also depends upon the existence of a law of Congress enacted pursuant 

to one of Congress’s constitutionally enumerated powers. See, e.g., United States v. DavilaMendoza, 972 F.3d 1264, 1268–78 (11th Cir. 2020) (vacating convictions of three foreign 

nationals for crimes committed in a foreign nation’s territorial waters because the Maritime 

Drug Law Enforcement Act exceeded Congress’s enumerated foreign commerce power). 

But this does not imply that other enumerated powers do not allow Congress to authorize 
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the context of non-U.S. citizens, due process requires the government to 

demonstrate that there exists a sufficient nexus between the conduct 

condemned and the United States such that application of the statute would 

not be arbitrary or fundamentally unfair to the defendant.” (quoting 

Lawrence, 727 F.3d at 396 (internal quotation marks omitted))); Murillo, 826 

F.3d at 157 (finding no Fifth Amendment obstacle to prosecuting a foreign 

defendant in the United States “if his ‘actions affected significant American 

interests’—even if the defendant did not mean to affect those interests” 

(quoting Brehm, 691 F.3d at 552)). 

But now that the Fourteenth Amendment “at home” test applies in 

the Fifth Amendment context, foreign corporate civil defendants will be 

“immunize[d]” from suit here. Ante at 24. Unlike foreign criminal 

defendants, whom federal courts can sentence to death or prison even if they 

have never set foot in the United States or never even intended to affect the 

United States, civil corporate defendants will be insulated against federal 

court personal jurisdiction in cases involving mere money damages if they 

can simply show that despite doing even extensive business in the United 

States, they are not “essentially at home” here. See Waldman, 835 F.3d at 

340 (candidly acknowledging the difference in standards applicable to 

criminal and civil cases after importing Daimler’s “at home” test). This 

cannot be right. 

2. 

Yet another anomaly lies in our affording significant due process rights 

to a foreign corporation. The American Constitution exists primarily to 

secure the rights of Americans. The Supreme Court has held that foreign 

personal jurisdiction in federal courts over foreign actors for foreign conduct (whether civil 

or criminal) affecting United States interests. 
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corporations are entitled to less constitutional protection than citizens, if at 

all—especially when they remain abroad. See Agency for Int’l Dev., 140 S. Ct. 

at 2086–87 (foreign corporation has no First Amendment rights, despite 

having domestic affiliates); see also Douglass, 996 F.3d at 295; cf. Dep’t of 

Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1981–83 (2020) (alien within 

U.S. territory not entitled to full range of due process rights); VerdugoUrquidez, 494 U.S. at 264–75 (alien abroad not protected by the Fourth 

Amendment); Eisentrager, 339 U.S. at 784 (aliens abroad not protected by the 

Fifth Amendment). 

Here, NYK would like to have its cake and eat it too. This foreign 

corporation has frequently reaped the benefits of the American legal 

system—it has sued nearly eighty times in federal district courts in under 

thirty years—but, having been sued, NYK suddenly cries foul. To claim the 

protection of Fourteenth Amendment due process case law, NYK insists 

that it is not “at home” in the United States and, therefore, cannot be haled 

into U.S. court from its residence abroad. In other words, the corporation 

demands the right to stay home, abroad. But, in asserting that it has due 

process rights under the U.S. Constitution in the first place, NYK

acknowledges its presence in the United States and its desire to receive the 

legal benefits of being “at home” here. This runs up against the principle of 

noncontradiction: NYK cannot both be “at home” here and not. Something 

is not quite right. 

* * * 

All of these troubling consequences and anomalies are big red flags 

signaling that we have headed down the wrong path. We are better off 

looking to what the Fifth Amendment’s Due Process Clause meant when it 

was adopted—not what the Supreme Court has said the Fourteenth 

Amendment’s Due Process Clause means in different contexts. Adhering to 
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the Fifth Amendment’s original meaning steers us clear of these problematic 

results. 

V. 

The Supreme Court has never interpreted the Fifth Amendment’s 

Due Process Clause with respect to personal jurisdiction. The Court has 

expressly left the question open. It is our duty to offer an answer. But the 

majority opinion simply copies and pastes inapplicable modern Supreme 

Court case law expounding on the Fourteenth Amendment, as if the 

Fourteenth Amendment imbues the Fifth Amendment with new meaning. 

In my view, we should not put new wine in an old wineskin. There is no 

substitute for a diligent inquiry into the original public meaning of the Fifth 

Amendment’s Due Process Clause. As originally understood and applied (or 

rather, not applied), the Fifth Amendment imposed no significant restriction 

on Congress’s ability to authorize service of process abroad, and hence, to 

expand federal courts’ personal jurisdiction. 

VI. 

I would hold that the district court in this case had personal 

jurisdiction over NYK and remand for further proceedings. Therefore, I 

respectfully dissent.
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Stephen A. Higginson, Circuit Judge, dissenting: 

I agree with the dissent’s conclusion that the district court had 

adjudicative jurisdiction over NYK. I write separately to highlight that by 

importing Fourteenth Amendment constraints on personal jurisdiction, born 

out of federalism concerns, into process due to foreign corporations in global 

disputes, where those concerns don’t exist, our court makes several mistakes. 

First, the Supreme Court has been explicit it has not done this crossincorporation. See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 

1773, 1783-84 (2017) (“[S]ince our decision concerns the due process limits 

on the exercise of specific jurisdiction by a State, we leave open the question 

whether the Fifth Amendment imposes the same restrictions on the exercise 

of personal jurisdiction by a federal court.”); see also Omni Capital Int’l, Ltd. 

v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987); J. McIntyre Mach., Ltd. v. 

Nicastro, 564 U.S. 873, 885 (2011) (plurality opinion); Asahi Metal Indus. Co. 

v. Superior Court, 480 U.S. 102, 113 n.* (1987) (opinion of O’Connor, J.). 

Second, as valiantly explicated in the principal dissent, discerning 

historical purpose to justify cross-incorporation of the 1868 meaning of “due 

process” in the Fourteenth Amendment, protecting all persons from state 

government depredation, back a century to 1791 and what the framers of the 

Fifth Amendment meant protecting “person[s]” from federal government 

overreach, all in effort to divine what process is constitutionally due foreign 

companies in 21st century global disputes, is an originalist mismatch that 

should call to mind Justice Jackson’s reminder three-quarters of a century 

ago that “[j]ust what our forefathers did envision, or would have envisioned 

had they foreseen modern conditions, must be divined from materials almost 

as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., 

concurring). Indeed, academics have regretted that “‘existing records offer 
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no evidence of any debate on the due process clause in the Congress . . . or in 

the state legislatures that ratified’ the Bill of Rights.” 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, 236 n.20 (Paul B. Stephan & Sarah H. 

Cleveland eds., 2020) (alteration in original) (citing scholarship).1

Third, as the principal dissent and amici civil procedure scholars, not 

to mention practicing lawyers, observe, cross-incorporation has far-reaching, 

real-world implications.2

 Yet by importing the recently narrowed “place of 

business” and “at home” Fourteenth Amendment requirement, which 

assigns cases to courts inside the United States, into a Fifth Amendment 

constitutional rule against access-to-justice in any United States court for 

ever-increasing transnational litigation, what we do is embroider five words 

written to enhance liberty in 1791 to send United States plaintiffs overseas in 

for hope of justice.3 See Pamela K. Bookman, Toward the Fifth Restatement of 

1

 My skepticism put to one side, I applaud the principal dissent for its consistency 

of constitutional effort. 

2 See, e.g., Brief of Amicus Curiae for Civil Procedure Law Professors, at 3-4 (“If, 

as the district court held, the Due Process Clause applicable to state courts applies in equal 

measure to the federal courts, then Rule 4(k)(2) becomes useless. Indeed, because the 

negligence that plaintiffs allege in this case also seriously damages the Navy ship on which 

they were serving, that rationale would foreclose a damages suit by the United States 

Government from being heard in any federal court in the United States. Congress did not 

intend such an unjust result, and the Constitution does not require it.”). 

3

 It is unsurprising that corporations will calibrate knowledgeably around 

jurisdictional leaps like ours today. See, e.g., Catherine A. Spicer et al., Home Is Where 

You’re Incorporated: The US Supreme Court Limits Forum Shopping, ASSOCIATION OF 

CORPORATE COUNSEL DOCKET, (Dec. 18, 2020), https://docket.acc.com/home-whereyoure-incorporated-us-supreme-court-limits-forum-shopping (“Some businesses 

considering this question may prefer to eliminate the possibility of being subject to general 

personal jurisdiction in the United States altogether. A multinational company that is 

incorporated under the laws of another nation and with its principal headquarters beyond 
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U.S. Foreign Relations Law: The Future of Adjudicative Jurisdiction under 

Public International Law, in THE RESTATEMENT AND BEYOND, supra, at 335, 

341 (describing “litigation isolationism” trend in doctrine—of course 

without anticipating our leap today cross-incorporating Daimler’s inapt 

federalism-based constriction to curtail application of federal law to 

multinational corporate defendants altogether); see also Pamela K. Bookman, 

Litigation Isolationism, 67 STAN. L. REV. 1081 (2015); Pamela K. Bookman, 

Doubling Down on Litigation Isolationism, 110 AJIL UNBOUND 57 (2016). 

When a defendant is a foreign corporation, even doing continuous and 

immense commerce in the United States, if it stays purposively not “at 

home” in any state, then its actions that infringe federal law across the globe 

yet without specific jurisdiction case-link, cannot be heard. See also Aaron D. 

Simowitz, Legislating Transnational Jurisdiction, 57 VA. J. INT’L L. 325, 327-

28 (2018) (describing how the United States has become one of the most 

“jurisdictionally stingy” countries in the world—again, of course, without 

anticipating our further leap). 

Fourth, cross-incorporation of bedrock fair notice due to “persons” 

in interstate cases, a federalism-centered and court-preserving inquiry, to 

fairness owed overseas corporations in international cases, I think overlooks 

the Supreme Court’s distinct, foreign powers and sovereign state-centered 

comity approach confirmed in Daimler AG v. Bauman itself. 571 U.S. 117, 

140-42 (2014). That inquiry, broadly described, resembles Fourteenth 

Amendment doctrinal constriction in outcome—redirecting litigation among 

courts—but, to my eye, is based neither on international law nor 

extrapolation from the Fifth Amendment. Instead, the Court assesses 

litigation in the international setting with use of the canon of statutory 

US borders will be “at home” nowhere in the United States. Claims against such a 

company could therefore be brought only pursuant to a court’s specific jurisdiction.”). 
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interpretation known as the presumption against extraterritoriality, premised 

itself on the separation of powers truth that our political branches possess 

foreign relations powers hence courts should not apply United States statutes 

prescriptively when doing so might infringe the sovereignty of foreign nations 

unless Congress has made that intent clear. See RJR Nabisco, Inc. v. European 

Cmty., 579 U.S. 325 (2016); Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 

(2010); EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991). 

Finally, the distinction that the Supreme Court has preserved, which 

we erase with cross-incorporation, is delineation that scholars, not only of 

constitutional law, supra, but also of foreign relations law, have discussed for 

years. See, e.g. THE RESTATEMENT AND BEYOND, supra. Much of this 

discussion is at the heart of The Restatement of the Foreign Relations Law 

of the United States, see FOURTH RESTATEMENT OF FOREIGN RELATIONS 

LAW §§ 401, 422, unacknowledged by us too, even as we redirect United 

States citizen-plaintiffs—asserting United States federal law claims and 

invoking United States federal law service of process—offshore, often to 

countries with far less developed legal systems than Japan.4

 

With the above in mind, I am confident that when the Supreme Court 

revisits the distinction it carefully has preserved, it will take cognizance of all 

4

At minimum, in this area of international comity and sensitivity, it would be 

important to know the views of the Solicitor General, or those of the Legal Advisor to the 

Department of State, as to what nexus is sufficient for federal courts to assert adjudicative 

jurisdiction without entangling our legal system with those of other nations. Though the 

Acting Solicitor General declined to file a brief in this case, in other cases, the United States 

has asked for special solicitude for its own sovereignty on the international stage. See, e.g., 

Brief of the United States as Amicus Curiae at 32, Ford Motor Co. v. Mont. Eighth Jud. Dist. 

Ct., 141 S. Ct. 1017 (2021) (Nos. 19-368, 19-369), 2020 WL 1478612, at *32 (“In addition, 

the United States’ constitutional powers and special competence in matters of foreign 

affairs and international commerce, in contrast to the limited and geographically cabined 

sovereignty of each of the several States, would permit the exercise of federal judicial power 

in ways that have no analogue at the state level.”).
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pertinent scholarship, constitutional and foreign relations law. And I am 

confident it will consider the real world consequences the amici civil 

procedure professors highlight to urge, based both on Supreme Court 

precedent and also Congress’s Rule 4(k)(2), that, in cases arising under 

federal law, the Fifth Amendment allows more flexibility than the Fourteenth 

Amendment, permitting “jurisdiction over a non-US defendant that does 

‘systematic and continuous’ business in the United States.” Here, that test 

is certainly met given NYK’s extensive business and frequent litigation in the 

United States, hence I would find jurisdiction.
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Andrew S. Oldham, Circuit Judge, dissenting.

This case should be resolved by two propositions. First, the Supreme 

Court has never answered—in fact, it has expressly left “open”—“the 

question whether the Fifth Amendment imposes the same restrictions [as the 

Fourteenth] on the exercise of personal jurisdiction by a federal court.” 

Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1784 (2017); see 

also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 885 (2011) (plurality 

op.); Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987). 

Second, as originally understood, the Fifth Amendment did not impose any 

limits on the personal jurisdiction of the federal courts. Instead, it was up to 

Congress to impose such limits by statute. See, e.g., Stephen E. Sachs, The 

Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 1717–27 

(2020); Picquet v. Swan, 19 F. Cas. 609, 615 (C.C.D. Mass. 1828) (No. 11,134) 

(Story, J.); see also ante, at 54–61 (Elrod, J., dissenting). That should’ve been 

the end of the case. 

With all respect for my esteemed colleagues, I do not understand how 

this case implicates (1) “linguistic drift.” See ante, at 43–44, 63 (Elrod, J., 

dissenting). Nor do I see how the Supreme Court’s (2) “longstanding 

incorporation jurisprudence” or (3) unenumerated-rights precedents 

prevent us from adopting the originalist answer here. See ante, at 31–32 (Ho, 

J., concurring).

1. 

Start with linguistic drift. The theory appears to be that “due process 

of law” could’ve had one original public meaning when the People ratified 

the Fifth Amendment in 1791, and it could’ve “drifted” to some different 

original public meaning in 1868 when the People ratified the Fourteenth 

Amendment. See ante, at 43–44, 63 (Elrod, J., dissenting). Maybe it did. 

Maybe it didn’t. All I know is that “linguistic drift” is irrelevant here. 
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The Supreme Court has confessed that its Fourteenth Amendment 

personal jurisdiction precedents do not rest on original public meaning. See 

Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1036–39 (2021) 

(Gorsuch, J., concurring in the judgment); id. at 1032 (Alito, J., concurring in 

the judgment) (agreeing that “there are grounds for questioning the standard 

that the Court adopted in International Shoe” as an original matter); id. at 

1025 n.2 (majority op.) (effectively conceding as much). With no originalist 

endpoint, there’s nothing for the Fifth Amendment’s original public 

meaning to “drift” to. 

And it’s particularly odd to inject into this case a theory of reverse drift. 

I do not understand how or why we’d take an unoriginalist interpretation of 

the Fourteenth Amendment, pull it back in time to 1791, and use it to blind 

ourselves to an originalist interpretation of the Fifth Amendment. Ante, at 

32–33 (Ho, J., concurring). I am unaware of any case from any court that 

obligates us to do that—especially to answer a question that the Supreme 

Court has insisted is “open.” Bristol-Myers, 137 S. Ct. at 1784. 

2. 

Next, incorporation. Here, the theory appears to be that incorporation 

doctrine obligates us to apply the same body of law to the federal and state 

governments. So, the theory goes, we must use the same non-originalist 

understanding of “due process of law” for both the Fifth and Fourteenth 

Amendments. See ante, at 34–35 (Ho, J., concurring). 

I recognize that Judge Ho invokes incorporation as yet another reason 

for rejecting the principal dissent’s theory of “linguistic drift.”1

 It 

1

 I also take it that Judge Ho invites other arguments for applying different bodies 

of personal-jurisdiction law to the federal and state governments. See ante, at 35 (Ho, J., 

concurring). One argument is that none of the personal-jurisdiction limits—for any

government, state or federal—come from the Fifth or Fourteenth Amendments. See Sachs, 
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nonetheless bears emphasis, however, that incorporation does nothing to 

prevent us from adopting an originalist understanding of the Fifth 

Amendment’s Due Process Clause—even in the face of the Court’s nonoriginalist understanding of the Fourteenth Amendment. 

Any suggestion to the contrary conflates procedural and 

“substantive” due process. Personal jurisdiction—which is all that matters 

here—is a question of “procedural due process.” Phillips Petrol. Co. v. Shutts, 

472 U.S. 797, 812 (1985) (emphasis added). Incorporation, by contrast, is a 

question of “substantive” due process. See Dobbs v. Jackson Women’s Health 

Org., 142 S. Ct. 2228, 2246 (2022). That is, the Court’s incorporation 

precedents take the substantive constitutional rights guaranteed by the first 

eight amendments and then use the Fourteenth Amendment’s Due Process 

Clause to make those rights applicable against the States. It’s of course true 

that the substantive rights are the same, regardless of whether the plaintiff 

sues a federal or state defendant. McDonald v. City of Chicago, 561 U.S. 742, 

765 (2010); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2137 

(2022). But that says nothing about whether the same procedural restrictions 

apply to the federal and state governments. That’s presumably why, again, 

the Court has insisted the Fifth Amendment procedural due process question 

is “open,” Bristol-Myers, 137 S. Ct. at 1784, notwithstanding the substantive

rights guaranteed by incorporation doctrine.2

supra, at 1722–24. They instead come from the common law, which obviously could place 

different limits on the reach of the federal and state sovereigns. 

2

 It’s no answer to say that the Supreme Court first left open the Fifth Amendment 

procedural due process question before it started incorporating the Bill of Rights against 

the States. See ante, at 29 (Ho, J., concurring) (“But French [v. Barber Asphalt Paving Co., 

181 U.S. 324 (1901),] was issued before the Court embraced the doctrine of 

incorporation.”). Bristol-Myers (2017), McIntyre (2011), and Omni (1987) were all decided 

long after. The Court was surely aware of its incorporation doctrine in 2017, 2011, and 1987. 
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3. 

Finally, a word about unenumerated rights. Ante, at 31 (Ho, J., 

concurring) (relying on Gonzales v. Carhart, 550 U.S. 124 (2007)). In 

Carhart, the Court upheld a federal-law abortion restriction without 

considering whether the Fifth and Fourteenth Amendments require different 

substantive frameworks for abortion. 550 U.S. at 132–68. From that, my 

esteemed colleague infers that both amendments must impose identical 

procedural frameworks for personal jurisdiction. See ante, at 31 (Ho, J., 

concurring). 

That’s a non sequitur. And it’s easy to understand why no one swerved 

out of the way to address irrelevant procedural arguments while considering 

the invocation of an unenumerated “substantive” due process claim in 2007. 

First, the Court did not purport to ground its preexisting abortion 

doctrine in originalism. E.g., Planned Parenthood of Southeastern Pennsylvania 

v. Casey, 505 U.S. 833, 847–49 (1992) (plurality op.); see also Dobbs, 142 S. 

Ct. at 2317–50 (dissenting op.) (not defending Roe or Casey on originalist 

grounds). So it’s unsurprising that the Carhart litigants said nothing about 

the original public meaning of any part of the Constitution. 

Second, and in any event, long before Gonzales, the Supreme Court 

held that the same substantive framework applies to unenumerated rights 

under both the Fifth and Fourteenth Amendments’ Due Process Clauses. 

See, e.g., Reno v. Flores, 507 U.S. 292, 301–03 (1993); United States v. Salerno, 

481 U.S. 739, 746 (1987). That obviously mattered in Gonzales. And it 

obviously doesn’t matter where, as here, no one invokes “substantive” due 

process. In short, “[t]he non-discussion of an irrelevant question in an 

unrelated case does not prevent us from reaching the right answer to a 

constitutional question that the Supreme Court has expressly left open.” 

Ante, at 45 n.4 (Elrod, J., dissenting).