Finding Jurisdiction in Due Process

Brittney Lane Kubisch*

Originalists have devoted much attention to due process generally, but little attention to personal jurisdiction specifically. This neglect is odd given that territorial personal jurisdiction has been a due process requirement only since the Court’s nineteenth-century decision in Pennoyer. And it is even odder given that many deem modern doctrine a mess.

This Article aims to begin filling this gap by explaining how and why jurisdiction relates to due process. And it does so by providing a more comprehensive understanding of the writ-based system of law that prevailed until the late nineteenth century.

Writs had clear ties with courts’ jurisdiction. They were sovereign commands that served two court-empowering functions. They delegated adjudicative power to courts so that they could decide disputes with the power of law. And they allowed courts to constructively seize defendants or their property to bind them with their decisions. With this background, it is clear why due process—literally, proper use of writs—required both a legislative grant of jurisdiction and “tagging” the defendant with process in the state’s territory where the process had both legal authority and legal force.

This background makes plain that Pennoyer had it right. But it does more than validate Pennoyer. It also helps resolve jurisdictional puzzles that have confounded courts and scholars alike, including why Fifth and Fourteenth Amendment Due Process differ, why both state-sovereignty and individual-rights rationales underlie jurisdictional rules, and what core jurisdictional restraints due process imposes. In providing these answers, it also clarifies the principles that should guide efforts to reform the doctrine.

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© 2026 Brittney Lane Kubisch. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Ken Starr Faculty Fellow, Pepperdine Caruso School of Law. For comments and criticisms on earlier drafts, I am thankful to J. Joel Alicea, Samuel L. Bray, Jud Campbell, Charlie Capps, John C. Harrison, Jason Jarvis, David Kinnaird, Mark Kubisch, Tyler Lindley, John McGinnis, Haley Proctor, and Robert J. Pushaw. I am also indebted to all the participants in the 2025 Federalist Society Junior Scholars Colloquium, the Georgetown Center for the Constitution Research Fellows Workshop Series, and the Southern California Junior Faculty Workshop for helpful discussion. All errors are my own.