THOMAS, J., concurring in judgment
1
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 24–20 and 24–151
_________________
MIRIAM FULD, ET AL., PETITIONERS
24–20
v.
PALESTINE LIBERATION ORGANIZATION, ET AL.
EVA WALDMAN, ET AL., PETITIONERS
v.
PALESTINE LIBERATION ORGANIZATION, ET AL.
UNITED STATES, PETITIONER
24–151
v.
PALESTINE LIBERATION ORGANIZATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 20, 2025]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins as
to Part II, concurring in the judgment.
The Court properly holds that the personal-jurisdiction
provisions of the Promoting Security and Justice for Vic
tims of Terrorism Act (PSJVTA), §903, 133 Stat. 3082–
3085, 18 U. S. C. §§2333, 2334, do not violate respondents’
claimed rights under the Due Process Clause of the Fifth
Amendment. See ante, 14–21. In reaching this conclusion,
the majority recognizes that the Fourteenth Amendment’s
“minimum contacts standard” does not apply to the Fifth
Amendment’s Due Process Clause. Ante, at 12. But, rather
than decide what standard does apply, the Court holds only
that the Fifth Amendment at least permits a statute such
as the PSJVTA that “ties federal jurisdiction to conduct
2
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
closely related to the United States that implicates im
portant foreign policy concerns.” Ante, at 14. The Court
leaves for another day the task of defining “the Fifth
Amendment’s outer limits on the territorial jurisdiction of
federal courts.” Ibid.
I would take a different approach. When interpreting
constitutional provisions, we must look to “the text of the
Constitution” as well as “historical evidence from the fram
ing” that can illuminate “the intent of those who drafted
and ratified it.” McIntyre v. Ohio Elections Comm’n, 514
U. S. 334, 370 (1995) (THOMAS, J., concurring in judgment).
The critical question in these cases is what boundaries the
Fifth Amendment’s due process guarantee, as originally un
derstood, places on the Federal Government’s power to ex
tend personal jurisdiction over respondents. Historical ev
idence demonstrates that the answer is “none.” “Because
the majority has adopted an analysis that is largely uncon
nected to the Constitution’s text and history, I concur only
in the judgment.” Id., at 371.
I
“We start with the text of the Fifth Amendment” and in
terpret its provisions in light of how they were “‘understood
in 1791.’” Gamble v. United States, 587 U. S. 678, 683
(2019); see also McIntyre, 514 U. S., at 370–371 (opinion of
THOMAS, J.). The Fifth Amendment’s Due Process Clause
provides that “[n]o person” shall “be deprived of life, liberty,
or property, without due process of law.” Thus, to show that
the PSJVTA’s jurisdictional provisions run afoul of the
Fifth Amendment’s due process protections, respondents
must establish both that they are “person[s]” protected by
the Fifth Amendment and that the PSJVTA transgresses
their due process rights. These requirements in turn raise
two threshold issues: whether respondents enjoy constitu
tional rights in the first place, and what “due process of law”
requires. While my conclusions as to both threshold issues
Cite as: 606 U. S. ____ (2025)
THOMAS, J., concurring in judgment
3
remain tentative, there are strong reasons to think that
each poses an independently fatal problem for respondents.
At a minimum, however, I would conclude today that the
PSJVTA’s jurisdictional provisions do not violate any plau
sible understanding of due process.
A
I am skeptical that entities such as the Palestine Libera
tion Organization (PLO) and the Palestinian Authority
(PA) enjoy any constitutional rights at all, let alone qualify
as “person[s]” for purposes of the Fifth Amendment.
1
The PLO and the PA are foreign bodies that are not rec
ognized as sovereign by the United States, but that never
theless carry out governmental functions. Ante, at 1–2.
Although the Federal Government does not take a position
on the question whether such foreign nonsovereign govern
mental bodies have constitutional rights, Tr. of Oral Arg.
43–45, the Executive Branch has for decades endorsed prin
ciples that suggest that the Constitution does not protect
these types of entities.
Begin with the Executive’s approach to “the nature of for
eign sovereigns.” Constitutionality of Closing the Palestine
Information Office, an Affiliate of the Palestine Liberation
Org., 11 Op. OLC 104, 106 (1987). To be sure, the United
States does not recognize respondents as sovereign states,
ante, at 2, but the Executive’s view of foreign nations’ con
stitutional rights nevertheless may shed light on respond
ents’ assertion of constitutional rights here. Foreign sover
eigns, the Office of Legal Counsel has explained, each
“interac[t] with the United States as a foreign, co-equal sov
ereign.” 11 Op. OLC, at 106. “[T]he United States interacts
with foreign states not within the constitutional system,
but as a juridical equal, on the level of international law
and diplomacy.” Id., at 107. It follows that no sovereign
4
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
can be “‘amenable,’ or subject to the other,” ibid., for such
an arrangement would violate the precept that “the body of
the nation, the State, remains absolutely free,” E. de Vattel,
The Law of Nations, Preliminaries, §4, p. lv (J. Chitty ed.
1854).1 Thus, “[a] foreign nation, . . . unlike a foreign na
tional, does not have rights under the Fifth Amendment.”
Presidential Authority To Settle the Iranian Crisis, 4A Op.
OLC 248, 260, n. 9 (1980).
The Executive Branch has reached the same conclusion
regarding domestic nonsovereign governing bodies, such as
United States Territories. See Mutual Consent Provisions
in the Guam Commonwealth Legislation, 1994 WL
16193765, *5 (OLC, July 28, 1994) (“non-state areas” are
“governmental bodies” that “are not protected by the Due
Process Clause of the Fifth Amendment”). “Territories are
but political subdivisions of the outlying dominion of the
United States” and thus relate to the Federal Government
similarly to the way in which municipalities relate “to the
respective States.” National Bank v. County of Yankton,
101 U. S. 129, 133 (1880). Given that a municipality is “cre
ated by a state for the better ordering of government,” and
thus has “no privileges or immunities under the federal con
stitution which it may invoke in opposition to the will of its
creator,” Williams v. Mayor of Baltimore, 289 U. S. 36, 40
(1933); see also Newark v. New Jersey, 262 U. S. 192, 196
(1923), the Executive’s conclusion that the same logic
should apply to Territories is reasonable. Accord, e.g.,
Puerto Rico Public Housing Admin. v. United States Dept.
of Housing and Urban Development, 59 F. Supp. 2d 310,
——————
1Vattel was “widely consulted by the constitutional generation in the
United States,” and was “invariably invoked as authoritative on matters
of international law by the likes of Alexander Hamilton, James Madison,
James Wilson, Edmund Randolph, Thomas Jefferson, John Marshall, Jo
seph Story and James Kent, among others.” M. Ramsey, Executive
Agreements and the (Non)treaty Power, 77 N. C. L. Rev. 133, 169–170
(1998) (internal quotation marks omitted).
Cite as: 606 U. S. ____ (2025)
THOMAS, J., concurring in judgment
5
325 (PR 1999) (instrumentalities of the Commonwealth of
Puerto Rico are “‘non-persons’” for purposes of constitu
tional claims).
Assuming that the Executive Branch is correct that nei
ther foreign sovereign governments nor domestic nonsover
eign Territories enjoy constitutional rights, it is unclear
why the Constitution would treat foreign nonsovereign gov
ernmental entities such as respondents differently. In the
Executive’s own words, the PLO is at bottom “a foreign po
litical entity” that “‘lies outside the structure of the union.’”
11 Op. OLC, at 107 (quoting Principality of Monaco v. Mis
sissippi, 292 U. S. 313, 330 (1934)). Neither it nor the PA
has taken any “general obligation to abide by the constitu
tional norms to which the federal government and the sev
eral states are subject, nor are there any effective means to
place [them] on parity with the United States or the states
for purposes of enforcement of particular norms.” 11 Op.
OLC, at 107 (internal quotation marks omitted). It would
seem to follow that neither entity enjoys constitutional pro
tections.
In addition to the conclusions of the Executive Branch,
decisions from this Court further suggest that entities like
respondents may not be “person[s]” protected by the Fifth
Amendment. In South Carolina v. Katzenbach, 383 U. S.
301, 323 (1966), the Court held that “[t]he word ‘person’ in
the context of the Due Process Clause of the Fifth Amend
ment cannot, by any reasonable mode of interpretation, be
expanded to encompass the States of the Union.” Decades
later, the Court cited Katzenbach to suggest that “a foreign
state” might not be “a ‘person’ for purposes of the Due Pro
cess Clause.” Republic of Argentina v. Weltover, Inc., 504
U. S. 607, 619 (1992).
“Since Weltover, the consensus of circuit courts has fol
lowed the Supreme Court’s lead and definitively held that
foreign states are not entitled to the protections of the Due
Process Clause.” CC/Devas (Mauritius) Ltd. v. Antrix
6
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
Corp., 91 F. 4th 1340, 1350 (CA9 2024) (Bumatay, J., dis
senting from denial of rehearing en banc). The D. C. Circuit
thoroughly analyzed the issue in Price v. Socialist People’s
Libyan Arab Jamahiriya, 294 F. 3d 82 (2002). Compared
to foreign nations, which are “entirely alien to our constitu
tional system,” the court explained, domestic States “derive
important benefits and must abide by significant limita
tions.” Id., at 96. It would therefore be “highly incongruous
to afford greater Fifth Amendment rights to foreign na
tions.” Ibid. At least two other Circuits have reached the
same conclusion. See Frontera Resources Azerbaijan Corp.
v. State Oil Co. of Azerbaijan Republic, 582 F. 3d 393, 399
(CA2 2009) (“If the States, as sovereigns that are part of the
Union, cannot ‘avail themselves of the fundamental safe
guards of the Due Process Clause,’ we do not see why for
eign states, as sovereigns wholly outside the Union, should
be in a more favored position” (citation omitted)); Abelesz v.
Magyar Nemzeti Bank, 692 F. 3d 661, 694 (CA7 2012) (sim
ilar).
These courts’ and the Executive’s determinations that
foreign sovereigns do not fall within the “person[s]” pro
tected by the Fifth Amendment’s Due Process Clause seem
very likely correct, and it is difficult to see why the Consti
tution would afford better treatment to foreign nonsover
eign governmental entities. To conclude otherwise would
imply that foreign governmental entities may receive
greater constitutional protections by engaging in conduct
that leads the United States to refuse to recognize their sov
ereignty. I seriously doubt that the Constitution compels
such a result. As the Office of Legal Counsel concluded, “[i]t
would be anomalous if the Executive’s decision to withhold
recognition from a foreign political entity . . . invested that
entity with rights greater than those enjoyed by friendly
sovereigns present in the United States.” 11 Op. OLC, at
120, n. 7.
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THOMAS, J., concurring in judgment
2
7
Nevertheless, some lower courts have concluded that the
Constitution treats nonsovereign foreign governing bodies
like respondents more favorably than it treats recognized
sovereigns, States, Territories, and municipalities. In Liv
nat v. Palestinian Authority, 851 F. 3d 45, 52 (2017), for ex
ample, the D. C. Circuit held that the Due Process Clause
applies to the PA and the PLO, distinguishing Price as
“appl[ying] to sovereigns alone.” Because neither the PA
nor the PLO are “‘recognized by the United States govern
ment as sovereigns,’” the court reasoned, they are therefore
“protected by the Due Process Clause.” Ibid.
The D. C. Circuit’s opinion could be read to embrace a di
chotomy in which entities are either nonsovereigns, which
enjoy constitutional rights, or sovereigns, which do not. See
ibid.; accord, Waldman v. Palestine Liberation Org., 835
F. 3d 317, 329 (CA2 2016) (noting that “sovereign states are
not entitled to due process protection,” but rejecting the ar
gument that respondents lack such protection because “nei
ther the PLO nor the PA is recognized by the United States
as a sovereign state”). Respondents rely on that theory
here, arguing that a constitutional “binary” applies to the
question whether an entity is a “person” under the Fifth
Amendment: An entity either is “a person for purposes of
the Due Process Clause,” or it is “a sovereign state”; there
is no “no-man’s-land” in which the entity is “neither a sov
ereign state nor a person.” Tr. of Oral Arg. 91.
While I agree with a “binary” framework insofar as the
Due Process Clause either applies to respondents or it does
not, I do not see how sovereignty supplies the dividing line.
It is uncontroversial that entities such as municipalities
and United States Territories are not sovereigns. See
County of Yankton, 101 U. S., at 133; Mutual Consent Pro
visions in the Guam Commonwealth Legislation, 1994 WL
16193765, *5. Under respondents’ framework, this nonsov
ereign character would seem to compel the conclusion that
8
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
municipalities and Territories thus must be “person[s]”
with constitutional rights. For reasons already discussed,
see supra, at 4–5, this result is dubious, see Williams, 289
U. S., at 40 (municipalities have “no privileges or immuni
ties under the federal constitution which it may invoke in
opposition to the will of its creator”); accord, e.g., East
St. Louis v. Circuit Ct. for Twentieth Jud. Cir., St. Clair
Cty., 986 F. 2d 1142, 1144 (CA7 1993) (“Municipalities . . .
are not ‘persons’ within the meaning of the Due Process
Clause”). Further, assuming the Court was correct to con
clude that the Due Process Clause of the Fifth Amendment
does not “encompass the States of the Union,” Katzenbach,
383 U. S., at 323, it is rather odd to think that the Consti
tution would provide greater constitutional rights to Terri
tories or the political subdivisions of States than to the
States themselves.
Neither the private petitioners nor the Government
pressed the argument that the Constitution does not pro
tect respondents at all, so we should not resolve the cases
on that basis. See, e.g., H. Proctor, “Will the Meaning of the
Second Amendment Change . . . ?”: Party Presentation and
Stare Decisis in Text-and-History Cases, 98 N. Y. U.
L. Rev. 453, 463, n. 70 (2023) (cautioning against courts at
tempting to “correc[t] for deficiencies in party presenta
tion”). But, the question whether entities like respondents
receive any constitutional protection is antecedent to what
ever constitutional arguments they might make, and I am
hopeful that in an appropriate case parties will brief and
the Court will address this issue.2
——————
2One amicus raises the argument that “certain governmental entities,
including ‘foreign states,’ ” are not “ ‘person[s]’ ” under the original mean
ing of the Fifth Amendment. Brief for Chamber of Commerce of the
United States of America as Amicus Curiae 6; see also, e.g., A. Scalia &
B. Garner, Reading Law 273 (2012) (“[T]he word person traditionally ex
cludes the sovereign”). This textual argument has generated scholarly
debate. See, e.g., Brief for Professor Ingrid (Wuerth) Brunk as Amicus
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THOMAS, J., concurring in judgment
B
9
Even assuming that the PLO and the PA are “person[s]”
protected by the Fifth Amendment, respondents still must
grapple with another threshold inquiry: whether the Due
Process Clause imposes any limits on the legislative power.
“The four words—due process of law—have been the cen
ter of substantial legal debate over the years.” In re Win
ship, 397 U. S. 358, 378 (1970) (Black, J., dissenting). As I
have previously explained, the Due Process Clause may
have originally been understood to require only that our
Government “‘proceed according to the “law of the land”—
that is, according to written constitutional and statutory
provisions,’” before depriving someone of life, liberty, or
property. Johnson v. United States, 576 U. S. 591, 623
(2015) (opinion concurring in judgment). Numerous schol
ars have supported this view, “conclud[ing] that ‘considera
ble historical evidence supports the position that “due pro
cess of law” was a separation-of-powers concept designed as
a safeguard against unlicensed executive action, forbidding
only deprivations not authorized by legislation or common
law.’” Ibid. (quoting D. Currie, The Constitution in the Su
preme Court: The First Hundred Years 1789–1888, p. 272
(1985)); see also, e.g., E. Corwin, The Doctrine of Due Pro
cess of Law Before the Civil War, 24 Harv. L. Rev. 366, 370–
373 (1911) (listing reasons to conclude that “the phrase ‘law
of the land’” did not “import any limitation upon legislative
power”); 4 Papers of Alexander Hamilton 35 (H. Syrett & J.
Cooke eds. 1962) (“The words ‘due process’ . . . can never be
referred to an act of legislature”).
Others have disagreed. For example, some scholars have
argued that “as originally understood, ‘the principle of due
process’ required, among other things, that ‘statutes that
——————
Curiae in CC/Devas (Mauritius) Ltd. v. Antrix Corp., O. T. 2024, No. 23–
1201, pp. 3–4 (arguing that, at the time of ratification, “the word ‘person’
was routinely used to describe states”).
10
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
purported to empower the other branches to deprive per
sons of rights without adequate procedural guarantees [be]
subject to judicial review.’” Johnson, 576 U. S., at 623
(opinion of THOMAS, J.) (quoting N. Chapman & M.
McConnell, Due Process as Separation of Powers, 121 Yale
L. J. 1672, 1679 (2012)).
And, in Murray’s Lessee v. Hoboken Land & Improvement
Co., 18 How. 272 (1856), the Court itself concluded that the
mere existence of a legislative enactment was insufficient
on its own to satisfy due process under the Fifth Amend
ment. Despite acknowledging that “[t]he words, ‘due pro
cess of law,’ were undoubtedly intended to convey the same
meaning as the words, ‘by the law of the land,’ in Magna
Charta,” the Court concluded that the Due Process Clause
“is a restraint on the legislative as well as on the executive
and judicial powers of the government.” Id., at 276. The
Court famously declared that due process must comport
with “those settled usages and modes of proceeding existing
in the common and statute law of England, before the emi
gration of our ancestors, and which are shown not to have
been unsuited to their civil and political condition by having
been acted on by them after the settlement of this country.”
Id., at 277. These requirements generally include an inde
pendent judge, “regular allegations, opportunity to answer,
and a trial according to some settled course of judicial pro
ceedings.” Id., at 280. The Court’s decision in Murray’s
Lessee “opened the door to a dramatic reinvention of the
Due Process of Law Clause as a check on the statutory en
actment of novel methods of procedure.” M. Crema & L.
Solum, The Original Meaning of “Due Process of Law” in
the Fifth Amendment, 108 Va. L. Rev. 447, 519 (2022).
In these cases, “I need not choose between these two un
derstandings of ‘due process of law.’” Johnson, 576 U. S.,
at 623 (opinion of THOMAS, J.). If the “law of the land” view
of due process is correct and requires only that Congress
have authorized the deprivation of life, liberty, or property
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THOMAS, J., concurring in judgment
11
that the Federal Government effects, see Sessions v. Di
maya, 584 U. S. 148, 207 (2018) (THOMAS, J., dissenting),
then the PSJVTA’s proper enactment resolves the question
presented. But, as explained next, even assuming that “set
tled usages and modes of proceeding” govern the due pro
cess inquiry, Murray’s Lessee, 18 How., at 277, respondents’
due process argument still fails.
II
The Fifth Amendment was never understood to constrain
Congress’s ability to extend federal jurisdiction. The Fed
eral Government has always possessed the power to extend
its jurisdiction beyond the Nation’s borders, and, as under
stood in 1791, the Fifth Amendment did not limit this sov
ereign prerogative. Rather, insofar as any limits on extra
territorial jurisdiction existed, they stemmed from general
principles of international law. But, those principles were
defeasible, subconstitutional rules that the sovereign could
override through clear command. This understanding re
spects the Constitution’s design by reserving matters of for
eign affairs to the political branches.
A
Congress’s and the Judiciary’s extraterritorial powers are
evident in the Constitution. The text is explicit: Congress
may “define and punish Piracies and Felonies committed on
the high Seas, and Offences against the Law of Nations,”
and it may “make Rules concerning Captures on Land and
Water.” Art. I, §8, cls. 10, 11.
By design, the authority of “the Judicial” branch was to
be “commensurate to the legislative and executive Author
ity.” 1 Records of the Federal Convention 237, n. 18 (M.
Farrand ed., 1911) (statement of James Wilson). “The judi
cial Power” accordingly “extend[s] to all Cases, in Law and
Equity, arising under this Constitution, [and] the Laws of
the United States”; “to all Cases of admiralty and maritime
12
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
Jurisdiction; and to “all Crimes,” including those “not com
mitted within any State.” Art. III, §2, cls. 1, 3.
The First Congress, “many of whose members had taken
part in framing” the Constitution, Wisconsin v. Pelican Ins.
Co., 127 U. S. 265, 297 (1888), exercised its authority to pre
scribe extraterritorial jurisdiction in the Judiciary Act of
1789. See §9, 1 Stat. 76–77 (granting federal courts juris
diction over “civil causes of admiralty and maritime juris
diction” arising “upon the high seas”); see also, e.g., N.
Chapman, Due Process Abroad, 112 Nw. U. L. Rev. 377, 409
(2017) (“[O]ne of the federal government’s top priorities”
postratification was “[t]he prosecution and punishment of
extraterritorial crimes, including crimes committed by al
iens”). This “actio[n] of the First Congress” is “of course
persuasive evidence of what the Constitution means.” Har
melin v. Michigan, 501 U. S. 957, 980 (1991) (opinion of
Scalia, J.); see, e.g., Marsh v. Chambers, 463 U. S. 783, 788–
790 (1983). Early treatises further reinforce the conclusion
that the Federal Government possessed the power to exer
cise its jurisdiction beyond its borders, noting for example
that “for the purpose of giving jurisdiction,” “on whom or
where a piratical offense has been committed” is irrelevant.
1 J. Kent, Commentaries on American Law 174 (1826).
Constitutional text, postratification practice, and early
commentary thus demonstrate that Congress and the Judi
ciary can exercise jurisdiction beyond the United States.
The question turns to what, if anything, limits this power.
B
Preratification and postratification courts observed lim
its on their own and each other’s extraterritorial authority.
Those limits were originally understood to derive from the
international law of nations, not the Constitution. But,
Congress always possessed the power to legislate beyond
the boundaries that these international-law principles im
posed.
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THOMAS, J., concurring in judgment
1
13
Early courts routinely applied law-of-nations principles
under which personal jurisdiction was “typically a problem
in recognition”; that is, “[t]he question for American courts
was whether [foreign] judgments would be recognized and
enforced.” S. Sachs, Pennoyer Was Right, 95 Texas L. Rev.
1249, 1270 (2017) (Sachs 2017). Because “[e]arly American
states stood in much the same position as foreign nations,”
they would review each other’s jurisdiction and refuse to
recognize or enforce foreign judgments that exceeded com
monly understood jurisdictional limits. Id., at 1273–1274.
In Jenkins v. Putnam, 1 S. C. L. 8 (1784) (per curiam), for
example, a South Carolina court recognized that whether a
North Carolina admiralty court’s judgment was due “faith
and credit” pursuant to “[t]he act of confederation . . . and
the law of nations” turned on whether the foreign court had
“competent jurisdiction” to enter the judgment. Id., at 9–
10; see also, e.g., Kibbe v. Kibbe, 1 Kirby 119, 126 (Conn.
Super. Ct. 1786) (concluding that a Massachusetts court
lacked “legal jurisdiction of the cause” and thus rejecting
creditors’ attempt to have the court recognize out-of-state
judgment).
Courts “continued to reason this way” after the Fifth
Amendment’s ratification in 1791. Sachs 2017, at 1275.
Riding circuit, Justice Story rejected the application of a
Massachusetts personal-jurisdiction statute to an absent
Louisiana citizen based on the “universal” “principle,” “con
sonant with the general principles of justice, that the legis
lature of a state can bind no more than the persons and
property within its territorial jurisdiction.” Flower v. Par
ker, 9 F. Cas. 323, 324–325 (No. 4,891) (CC Mass. 1823).
This Court reinforced those principles in D’Arcy v.
Ketchum, 11 How. 165, 174 (1851), in which it addressed
whether a creditor could enforce a New York judgment in a
Louisiana federal court against a “citizen of Louisiana not
14
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
served with process.” Observing that neither an act of Con
gress nor a provision of the Constitution had displaced the
“well-established rules of international law,” the Court con
cluded that following such a procedure to enforce the New
York judgment would be “deemed an illegitimate assump
tion of power.” Id., at 174–176. At bottom, this interna
tional-law approach to personal jurisdiction meant that
when one government attempted to exercise “jurisdiction
which, according to the law of nations, its sovereign could
not confer,” that government’s “sentences [were] not re
garded by foreign courts” irrespective of whether they were
valid “within the dominions of the prince from whom the
authority is derived.” Rose v. Himely, 4 Cranch 241, 276–
277 (1808) (Marshall, C. J., for the Court).
Absent from this approach to personal jurisdiction was
any consideration of due process. The Court’s omission of
such analysis in D’Arcy is illustrative: The Court could have
analyzed the legitimacy of enforcing the New York judg
ment under the New York Constitution—which “contained
an exact replica of the Fifth Amendment’s Due Process
Clause”—but it conspicuously declined to do so. See Brief
for Professor Stephen E. Sachs as Amicus Curiae 10 (citing
N. Y. Const. of 1846, Art. I, §6). Due process was not the
issue; the “well-established rules of international law”
were. 11 How., at 174.
2
These rules of international law, however, were always
understood to be defeasible. Even if Congress generally re
spected such rules, it retained the power to override them
through clear statutory command.
Founding-era courts may have sought to avoid “con
stru[ing]” statutes “to violate the law of nations if any other
possible construction remain[ed],” but they understood that
the legislature could depart from this international base
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THOMAS, J., concurring in judgment
15
line “by express words or a very plain and necessary impli
cation.” Murray v. Schooner Charming Betsy, 2 Cranch 64,
118 (1804) (Marshall, C. J., for the Court); see also, e.g., Tal
bot v. Seeman, 1 Cranch 1, 43 (1801) (“[T]he laws of the
United States ought not, if it be avoidable, so to be con
strued as to infract the common principles and usages of
nations” (emphasis added)). A nation “might always ‘exer
cise its territorial powers in a manner not consonant to the
usages and received obligations of the civilized world’”;
even if it were “‘considered as violating its faith,’” the rules
still would be “valid within that nation’s courts.” S. Sachs,
The Unlimited Jurisdiction of the Federal Courts, 106 Va.
L. Rev. 1703, 1722 (2020) (Sachs 2020) (quoting Schooner
Exchange v. McFaddon, 7 Cranch 116, 137 (1812)); accord,
e.g., United States v. Yousef, 327 F. 3d 56, 108 (CA2 2003)
(the “claim that principles of customary international law
constrain Congress’s power to enact laws that proscribe ex
traterritorial conduct is simply wrong”).
This approach reflects the “longstanding principle of
American law” that congressional statutes are “meant to
apply only within the territorial jurisdiction of the United
States”—“unless a contrary intent appears.” EEOC v. Ara
bian American Oil Co., 499 U. S. 244, 248 (1991) (emphasis
added; internal quotation marks omitted); cf. Blackmer v.
United States, 284 U. S. 421, 437 (1932) (whether “the leg
islation of Congress” applies extraterritorially to “citizens
of the United States in foreign countries” is a “question of
. . . construction, not of legislative power”). Given that prin
ciples of international law formed the basis for early under
standings of personal jurisdiction, Congress’s general abil
ity to override those principles strongly implies its power to
effect extraterritorial jurisdiction beyond what the law of
nations might permit.
This conclusion becomes nearly inescapable when taking
into account the views of early jurists who considered the
question. For example, Justice Johnson, while dissenting
16
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
on a separate point, acknowledged as an “eternal principl[e]
of justice” the precept “that jurisdiction cannot be justly ex
ercised by a state over property not within the reach of its
process, or over persons not owing them allegiance or . . .
found within their limits.” Mills v. Duryee, 7 Cranch 481,
486 (1813). Nevertheless, he had no trouble concluding that
courts could “dispense with” that principle “when compelled
by positive statute.” Ibid.; see Sachs 2020, at 1722.
Justice Story shared this view. In Picquet v. Swan, 19
F. Cas. 609, 613 (No. 11,134) (CC Mass. 1828), the plaintiff
sued a defendant residing abroad through jurisdictionally
dubious means, the implications of which might suggest
that “a subject of England, or France, or Russia . . . may be
summoned from the other end of the globe to obey our pro
cess, and submit to the judgment of our courts.” Justice
Story concluded that Congress had not authorized the
plaintiff ’s expansive theory of federal jurisdiction, which
would interfere with “principles of . . . immutable justice.”
Id., at 614. But, he made clear that this absence of congres
sional action was due to a lack of will, not power: “If con
gress had prescribed such a rule, the court would certainly
be bound to follow it, and proceed upon the law.” Id., at 615.
In other words, “foreign-based defendants were owed no
more than service authorized by Congress before being
haled into our federal courts.” Antrix Corp., 91 F. 4th, at
1352 (opinion of Bumatay, J.) (citing Picquet, 19 F. Cas., at
613, 615–616).
This Court eventually endorsed Justice Story’s analysis.
In Toland v. Sprague, 12 Pet. 300, 302 (1838), as in Picquet,
the Court addressed whether a federal statute authorized a
plaintiff ’s attempt to have the federal court exercise per
sonal jurisdiction over a defendant residing abroad. As
signing “great force” to the reasoning of Picquet, the Toland
Court held that Congress had not contemplated federal ju
risdiction over those “who were in a foreign jurisdiction,”
and thus had not extended “the reach of the process of the
Cite as: 606 U. S. ____ (2025)
THOMAS, J., concurring in judgment
17
courts” over those individuals. 12 Pet., at 328–330. Never
theless, the Court followed Justice Story’s analysis and con
cluded that federal courts would be bound to exercise such
jurisdiction if Congress required it through “positive legis
lation,” no matter how “unjust.” Id., at 329–330; see also
101 F. 4th 190, 218–219 (CA2 2024) (Menashi, J., dissent
ing from denial of rehearing en banc) (detailing the Toland
Court’s “embrac[e]” of Justice Story’s reasoning).
Subsequent historical and legal developments, including
the ratification of the Fourteenth Amendment, have not
changed the fundamental point that the Fifth Amend
ment’s Due Process Clause does not territorially confine the
Federal Government’s jurisdiction.3 During the Lochner
era, for example, this Court began to determine that the
Fourteenth Amendment restricts States’ ability to adjudi
cate cases involving conduct beyond their borders. See, e.g.,
Baker v. Baker, Eccles & Co., 242 U. S. 394, 403 (1917).
But, the Court during that period continued to recognize
that the Fifth Amendment provides “no ground for con
structing an imaginary constitutional barrier around the
exterior confines of the United States for the purpose of
shutting [the federal] government off from the exertion of
——————
3Until today, this Court had continually left open the question
whether the Fifth Amendment’s Due Process Clause constrains the Fed
eral Government to the same extent that the Fourteenth Amendment’s
Due Process Clause limits the States. See, e.g., Bristol-Myers Squibb Co.
v. Superior Court of Cal., San Francisco Cty., 582 U. S. 255, 268–269
(2017); Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U. S. 97, 102–
103, n. 5 (1987). That reservation was appropriate. Because it makes
little sense to interpret the Fifth Amendment’s Due Process Clause ac
cording to this Court’s interpretation of the later ratified, identical lan
guage in the Fourteenth Amendment, I agree with the majority that the
Fourteenth Amendment’s “minimum contacts” due process inquiry is in
apposite here. Ante, at 12. But, it may well be that the Due Process
Clause of the Fifth Amendment should inform our understanding of par
allel language in the Fourteenth Amendment.
18
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
powers which inherently belong to it by virtue of its sover
eignty.” United States v. Bennett, 232 U. S. 299, 306 (1914);
see also Brief for Petitioners in No. 24–20, pp. 27–28.
Cases from the founding era onward have continually re
affirmed that the Fifth Amendment was never understood
to impose limits on the exercise of personal jurisdiction.
Any such limits derived from international law, which Con
gress could override.
C
That Congress may override general principles of inter
national law does not imply that it should, but instead that
the relevant considerations are not constitutional ones. Se
rious nonconstitutional considerations include implications
for foreign policy. But, concerns over foreign affairs are no
reason to impose constitutional limits on federal courts’ ex
traterritorial jurisdiction. Just the opposite—the implica
tions of such limitations on the political branches’ power to
conduct foreign policy reinforce the conclusion that the Con
stitution does not inhibit the Federal Government’s ability
to extend its jurisdiction extraterritorially.
As the foregoing demonstrates, Congress has the power
to subject foreign nationals to what they might view as
overly broad jurisdiction. In response, countries may decide
to enact “‘retaliatory’ jurisdictional provisions” that “em
power [their] national courts to exercise jurisdiction over
[American citizens] in circumstances where [American]
courts . . . would have asserted jurisdiction.” G. Born, Re
flections on Judicial Jurisdiction in International Cases, 17
Ga. J. Int’l & Comp. L. 1, 15 (1987) (Born); see also ante, at
14. Constitutionally unchecked authority to extend federal
jurisdiction thus undeniably has the potential to generate
repercussions in foreign affairs. See Tr. of Oral Arg. 55–56
(counsel for the Federal Government acknowledging that
the Government could face “problems” with “retaliation”
were Congress to exercise jurisdiction “very far and wide”);
Cite as: 606 U. S. ____ (2025)
THOMAS, J., concurring in judgment
Brief for United States 47–48.
19
But, that possibility is no basis for erecting constitutional
barriers here. The “field of foreign affairs” requires “deli
cate judgments, involving a balance that is the prerogative
of the political branches to make,” and these judgments are
“entitled to special respect.” Jesner v. Arab Bank, PLC, 584
U. S. 241, 273 (2018) (plurality opinion). “Congress has the
undisputed power to decide . . . whether and under what
circumstances foreign nations should be amenable to suit in
the United States.” Verlinden B. V. v. Central Bank of Ni
geria, 461 U. S. 480, 493 (1983) (emphasis added). That
power is not diminished simply because the United States
does not recognize the sovereignty of the foreign govern
mental entity at issue.
Although it is possible that Congress might extend fed
eral jurisdiction to such a degree that foreign actors retali
ate, “the controlling role of the political branches” remains
“both necessary and proper.” Bank Markazi v. Peterson,
578 U. S. 212, 234 (2016). After all, other countries can ex
ercise their jurisdiction in offensive ways, too. And, if they
do, our political branches may decide to enact “‘retaliatory’
jurisdictional provisions” of their own. Born 15; accord, e.g.,
The Nereide, 9 Cranch 388, 423 (1815) (“If it be the will of
the government to apply to Spain any rule respecting cap
tures which Spain is supposed to apply to us, the govern
ment will manifest that will by passing an act for the pur
pose”).
Applying constitutional limits to Congress’s authority to
enact such provisions would risk impeding the political
branches’ efforts to conduct foreign affairs in federal litiga
tion. That is no small matter. Civil litigation can be a bar
gaining chip in foreign policy. As this Court has explained,
“[n]ot infrequently in affairs between nations, outstanding
claims by nationals of one country against the government
of another country are ‘sources of friction’ between the two
sovereigns.” Dames & Moore v. Regan, 453 U. S. 654, 679
20
FULD v. PALESTINE LIBERATION ORGANIZATION
THOMAS, J., concurring in judgment
(1981) (quoting United States v. Pink, 315 U. S. 203, 225
(1942)). Following “‘established international practice re
flecting traditional international theory,’” nations fre
quently enter into agreements to settle the claims of their
respective nationals. Dames & Moore, 453 U. S., at 679; see
also, e.g., Chas. T. Main Int’l, Inc. v. Khuzestan Water and
Power Auth., 651 F. 2d 800, 811 (CA1 1981) (collecting ex
amples of the Federal Government “extinguish[ing] claims
of United States nationals against foreign governments” in
exchange for various concessions). Limiting the political
branches’ ability to extend extraterritorial jurisdiction
could stymie its use of this tool for international negotia
tion, in turn sowing tension with the fundamental premise
that foreign policy is the domain of the political branches,
not the federal courts. See Bank Markazi, 578 U. S., at 234;
cf. Ex parte Peru, 318 U. S. 578, 589 (1943) (“[O]ur national
interest will be better served [if] cases . . . involving our re
lations with a friendly foreign power, are righted through
diplomatic negotiations rather than by the compulsions of
judicial proceedings”).
This potential intrusion on the political branches’ author
ity supports what the historical evidence makes clear: The
Fifth Amendment’s Due Process Clause imposes no limits
on the Federal Government’s power to extend federal juris
diction beyond the Nation’s borders. See supra, at 11–17.
*
*
*
The Court’s opinion does not foreclose the “maximalist
theory of federal jurisdiction” compelled by the original un
derstanding of the Fifth Amendment, but resolves the cases
without deciding whether that understanding is correct.
Ante, at 14. In my view, “historical evidence from the fram
ing” provides the proper framework for deciding these
cases, McIntyre, 514 U. S., at 370 (opinion of THOMAS, J.),
and that evidence demonstrates that the Due Process
Cite as: 606 U. S. ____ (2025)
THOMAS, J., concurring in judgment
21
Clause of the Fifth Amendment places no territorial limita
tion on Congress’s ability to call parties to answer.4 And,
for the reasons explained, this conclusion respects our def
erential approach to the political branches’ “delicate judg
ments” in foreign affairs. Jesner, 584 U. S., at 273 (plural
ity opinion).
Insofar as the Fifth Amendment’s Due Process Clause re
quires deprivations of life, liberty, or property to accord
with “those settled usages and modes of proceeding exist
ing” at common law, Murray’s Lessee, 18 How., at 277, the
PSJVTA plainly meets that standard. Nothing on the stat
ute’s face or in its application here deprives respondents of
an independent judge, “regular allegations, opportunity to
answer, [or] a trial according to some settled course of judi
cial proceedings.” Id., at 280. And, even assuming that the
law of nations might otherwise supply a rule of decision and
that the PSJVTA’s jurisdictional provisions are in tension
with such a rule—questions on which I take no position
here—those principles of international law are defeasible
presumptions that Congress unmistakably overrode when
it enacted the PSJVTA. In my view, the Fifth Amendment
due process inquiry ends there.
——————
4The concepts of notice and an opportunity to be heard are distinct
from the Federal Government’s authority to extend personal jurisdiction.
Although the Fifth Amendment places no limit on the latter, it may still
require that defendants be given notice and an opportunity to be heard.
I do not decide that question today. Even assuming the Fifth Amend
ment does impose such requirements, the PLO and the PA have received
due process. Both entities received notice of this suit through service of
process on a representative, and the entities have not claimed that it is
infeasible to defend themselves in American courts.
Thank you for reading Von’s Substack. I would love it if you commented! I love hearing from readers, especially critical comments. I would love to start more letter exchanges, so if there’s a subject you’re interested in, get writing and tag me!Thank you for reading Von’s Substack. I would love it if you commented! I love hearing from readers, especially critical comments. I would love to start more letter exchanges, so if there’s a subject you’re interested in, get writing and tag me!
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