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Liberty, Substantive Due Process, and Personal Jurisdiction

78 Pages Posted: 30 Jan 2008 Last revised: 25 May 2016

Charles W. (Rocky) Rhodes IV

South Texas College of Law

Date Written: 2007


This article defends-against numerous critics-the view that constitutional limits on personal jurisdiction arise from basic substantive due process principles. It first demonstrates the parallel historical development of personal jurisdiction and substantive due process, beginning in the antebellum era when both doctrines were viewed as stemming from foundational precepts of natural rights and justice. After the ratification of the Fourteenth Amendment, the Supreme Court slowly transformed these foundational concepts into enforceable federal law as part of the liberty guaranteed by due process. While the post-New Deal Court retreated from these limits, later Courts thereafter rekindled substantive due process doctrine.

The minimum contacts standard is part of modern substantive due process. The jurisdictional contacts analysis establishes the scope of the defendant's liberty interest-if the defendant has not committed the necessary purposeful acts, the state cannot intrude upon that defendant's fundamental liberty interest in the absence of a compelling government interest. On the other hand, if the nonresident defendant has committed the purposeful acts establishing the required forum ties, the jurisdictional assertion is reasonable unless the defendant can make a compelling case that the fair play factors would render jurisdiction unreasonable. While this provides more protection for the defendant than the traditional rational basis test, it is similar to a balancing standard employed in other substantive due process cases involving analogous concerns.

This substantive due process understanding of personal jurisdiction helps clarify the various articulations of the policies underlying the minimum contacts test. It also provides a cogent framework for the Court's prior jurisdictional decisions and a guide for litigants and courts to use in resolving personal jurisdiction queries.

Keywords: Personal Jurisdiction, Substantive Due Process

JEL Classification: K10, K41

Suggested Citation

Rhodes, Charles W. (Rocky), Liberty, Substantive Due Process, and Personal Jurisdiction (2007). 82 Tulane Law Review 567 (2007). Available at SSRN:

Charles W. (Rocky) Rhodes IV (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-2918 (Phone)

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