Professor Trey Childress, “Questioning the Constitutional Rights of Foreign Nations” — Fordham Law Review Online

November 4, 2019 | Professor Donald Earl (Trey) Childress‘s article, “Questioning the Constitutional Rights of Foreign Nations,” (SSRN) has been published in the Fordham Law Review, 88 Fordham Law Review Online 60 (2019).  The article considers the status of foreign sovereigns and foreign-state entities that appear before U.S. federal courts.

Abstract of “Questioning the Constitutional Rights of Foreign Nations”

In The Due Process and Other Constitutional Rights of Foreign Nations, Professor Ingrid Wuerth boldly goes where few U.S. federal courts and scholars have gone before to advance a reading of the U.S. Constitution that provides constitutional protections for foreign nations when they are sued in U.S. federal courts. In Professor Wuerth’s reading of the Constitution, because Article III vests and extends to U.S. federal courts original jurisdiction over suits “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects,” denying foreign nations personal jurisdiction and notice is contrary to the “purpose” of Article III as understood during the founding era (which is to protect foreign nations from unfair proceedings and to prevent international discord). Professor Wuerth extends this line of argument to the Fifth Amendment. Because the Fifth Amendment protects a “person” from deprivations of “property” without “due process of law,” she argues that the process due in federal court included certain process even as to foreign nations. Next, Professor Wuerth claims that separation of powers principles compel a similar conclusion. As Professor Wuerth recognizes, such a reading of the Constitution is not supported by current Supreme Court case law, most lower court case law, or the scholarly conventional wisdom, although she does note that it is supported by some lower court case law pre-dating the FSIA. Professor Wuerth’s analysis is not only novel but also potentially groundbreaking, if correct. It opens up new lines of argument for foreign sovereigns and foreign-state entities appearing before U.S. federal courts and challenges the foundation for the treatment of foreign sovereigns and their entities by federal courts. Indeed, Professor Wuerth’s argument might call into question parts of the FSIA. This article evaluates whether Professor Wuerth’s reading of the Constitution is correct. In so doing, this article considers the original understanding of these provisions, the law of nations as understood during the founding era, and Supreme Court case law close to the time of the founding. As explained below, I conclude that it is questionable that the Constitution extends rights to foreign nations. I examine Professor Wuerth’s claim that Article III and the Due Process Clause of the Fifth Amendment provide rights and protections for foreign states when they are sued in a U.S. federal court. Based on my review of the text of these provisions, as well as the best founding-era picture we can construct from early Supreme Court case law and the understanding of the law of nations at that time, it is questionable that the Constitution grants constitutional rights to foreign states.

The complete article may be found here