Personal Jurisdiction and the Declaration of Independence
53 Pages Posted: 29 Jul 2020
Date Written: July 3, 2020
The Declaration of Independence accuses the King of having “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.” But despite the seemingly natural resonance of this particular charge with the legal profession, legal scholars have displayed remarkably little interest in exploring its factual foundations. This Essay traces the colonists’ complaint to a somewhat surprising and unexpected source — a dispute about personal jurisdiction.
During the late eighteenth century, the administrative officials responsible for overseeing Britain’s North American possessions adopted an increasingly restrictive view of judicial jurisdiction, seeking to stamp out the custom of foreign attachment of nonresidents’ property that had proliferated throughout the colonies. The elected officials of North Carolina pushed back against the Crown’s efforts to deprive them of their privilege of foreign attachment by refusing the Governor’s insistence that a provision authorizing the procedure be stricken from a bill renewing authorization for the colony’s court system. The resulting impasse effectively terminated judicial authority in North Carolina and left the residents of the Colony without a fully functioning court system for more than three years. The Declaration of Independence, drafted amidst the North Carolinians’ showdown over foreign attachment, incorporated their complaint as one of the twenty-eight charges of royal abuse that the colonists claimed justified their claim to independence.
Ironically, the restrictive ethos that animated Britain’s late eighteenth-century hostility to foreign attachment and that provided the grounds for the colonists’ complaint finds echoes in the modern Supreme Court’s restrictive approach to personal jurisdiction. This Essay uses the experience of the Founding-era showdown over personal jurisdiction as a lens through which to examine modern efforts by the Court to cut back on the jurisdictional reach of state courts. Although this Essay does not propose a specific framework to replace the Court’s existing doctrine, it urges the Court to abandon its defendant-centric emphasis in favor of an approach that gives more meaningful credence to the sovereign interests of the respective states in determining the jurisdictional reach of their own courts.
Keywords: Personal Jurisdiction, Due Process, Declaration of Independence, Foreign Attachment, Privy Council
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