Foreign Nations, Constitutional Rights, and International Law

Abstract

This essay provides commentary on Professor Ingrid Wuerth's new article The Due Process and other Constitutional Rights of Foreign Nations, 88 Fordham L. Rev. 633 (2019). The essay makes three contributions. First, it explains why examining the procedural rights of foreign states is increasingly important given the rise of state-owned enterprises as major players in the global economy and as the amount of transnational regulation — untethered to international agreement — continues to grow. Second, it situates Professor Wuerth’s article within broader conversations. While limited scholarship directly addresses the constitutional rights of foreign states, the literature that does exist intersects with important work related to global governance and transnational regulation, as well as a renewed interest in how the Fifth Amendment’s Due Process Clause applies to foreign entities. Lastly, the Essay makes some brief observations on the substance of Professor Wuerth’s claims. While foreign states have rights under international law, it sets forth reasons to be skeptical that U.S. courts will take Professor Wuerth up on her invitation to find foreign states have due process and other constitutional rights.

Keywords: foreign states, state owned enterprises, SOEs, personal jurisdiction, judicial jurisdiction, due process, separation of powers, Wuerth, international law

JEL Classification: K33, K41