Burnham v. Superior Court of California, County of Marin/Opinion of the Court

1. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683-which applied the jurisdictional rules developed under International Shoe to invalidate a Delaware court's assertion of quasi in rem jurisdiction over absent defendants whose sole contact with the State (ownership of property) was unrelated to the suit-does not support Burnham's position. When read in context, Shaffer's statement that "all assertions of state-court jurisdiction must be evaluated according to the [International Shoe] standards," 433 U.S., at 212, 97 S.Ct., at 2584, means only that quasi in rem jurisdiction, like other forms of in personam jurisdiction over absent defendants, must satisfy the litigation-relatedness requirement. Nothing in Shaffer compels the conclusion that physically present defendants must be treated identically to absent ones or expands the "minimum-contacts" requirement beyond situations involving the latter persons. Pp. 619-622.

2. The proposal of Justice BRENNAN's concurrence to apply "contemporary notions of due process" to the constitutional analysis constitutes an outright break with the International Shoe standard and, without authority, seeks to measure state-court jurisdiction not only against traditional doctrines and current practice, but also against each Justice's subjective assessment of what is fair and just. In effect, the proposed standard amounts to a "totality of the circumstances" test, guaranteeing uncertainty and unnecessary litigation over the preliminary issue of the forum's competence. Pp. 622-627.

Justice WHITE concluded that the traditionally accepted rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum State cannot be invalidated absent a showing that as a general proposition it is so arbitrary and lacking in common sense in so many instances that it should be held violative of due process in every case. Until such a difficult showing is made, claims in individual cases that the rule would operate unfairly as applied to the particular nonresident involved need not be entertained, at least in the usual instance where presence in the forum State is intentional. P. 628.

Justice BRENNAN, joined by Justice MARSHALL, Justice BLACKMUN, and Justice O'CONNOR, although agreeing that the traditional "transient jurisdiction" rule is generally valid, concluded that historical pedigree, although important, is not the only factor to be taken into account in establishing whether a jurisdictional rule satisfies due process, and that an independent inquiry into the fairness of the prevailing in-state service rule must be undertaken. Pp. 628-640.

(a) Reliance solely on historical precedent is foreclosed by International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, and Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683, which demonstrate that all rules of state-court jurisdiction, even ancient ones such as transient jurisdiction, must satisfy contemporary notions of due process. While Shaffer's holding may have been limited to quasi in rem jurisdiction, its mode of analysis-which discarded an "ancient form without substantial modern justification"-was not. Minimum-contacts analysis represents a far more sensible construct for the exercise of state-court jurisdiction. Pp. 629-633.

(b) The transient jurisdiction rule will generally satisfy due process requirements. Tradition, although alone not dispositive, is relevant because the fact that American courts have announced the rule since the latter part of the 19th century provides a defendant voluntarily present in a particular State today with clear notice that he is subject to suit in that forum. Thus, the rule is consistent with reasonable expectations and is entitled to a strong presumption that it comports with due process. Moreover, by visiting the forum State, a transient defendant actually avails himself of significant benefits provided by the State: police, fire, and emergency services, the freedom to travel its roads and waterways, the enjoyment of the fruits of its economy, the protection of its laws, and the right of access to its courts. Without transient jurisdiction, the latter right would create an asymmetry, since a transient would have the full benefit of the power of the State's courts as a plaintiff while retaining immunity from their authority as a defendant. Furthermore, the potential burdens on a transient defendant are slight in light of modern transportation and communications methods, and any burdens that do arise can be ameliorated by a variety of procedural devices. Pp. 633-640.

Justice STEVENS concluded that the historical evidence, a persisting consensus, considerations of fairness, and common sense all indicate that the judgment should be affirmed. P. 640.

SCALIA, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined, and in which WHITE, J., joined as to Parts I, II-A, II-B, and II-C. WHITE, J., filed an opinion concurring in part and concurring in the judgment, post, p. 628. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined, post, p. 628. STEVENS, J., filed an opinion concurring in the judgment, post, p. 640.

Richard Sherman, for petitioner.

James O. Devereaux, San Francisco, Cal., for respondent.

Justice SCALIA announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join, and in which Justice WHITE joins with respect to Parts I, II-A, II-B, and II-C.

The question presented is whether the Due Process Clause of the Fourteenth Amendment denies California courts jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the State.

* Petitioner Dennis Burnham married Francie Burnham in 1976 in West Virginia. In 1977 the couple moved to New Jersey, where their two children were born. In July 1987 the Burnhams decided to separate. They agreed that Mrs. Burnham, who intended to move to California, would take custody of the children. Shortly before Mrs. Burnham departed for California that same month, she and petitioner agreed that she would file for divorce on grounds of "irreconcilable differences."

In October 1987, petitioner filed for divorce in New Jersey state court on grounds of "desertion." Petitioner did not, however, obtain an issuance of summons against his wife and did not attempt to serve her with process. Mrs. Burnham, after unsuccessfully demanding that petitioner adhere to their prior agreement to submit to an "irreconcilable differences" divorce, brought suit for divorce in California state court in early January 1988.

In late January, petitioner visited southern California on business, after which he went north to visit his children in the San Francisco Bay area, where his wife resided. He took the older child to San Francisco for the weekend. Upon returning the child to Mrs. Burnham's home on January 24, 1988, petitioner was served with a California court summons and a copy of Mrs. Burnham's divorce petition. He then returned to New Jersey.

Later that year, petitioner made a special appearance in the California Superior Court, moving to quash the service of process on the ground that the court lacked personal jurisdiction over him because his only contacts with California were a few short visits to the State for the purposes of conducting business and visiting his children. The Superior Court denied the motion, and the California Court of Appeal denied mandamus relief, rejecting petitioner's contention that the Due Process Clause prohibited California courts from asserting jurisdiction over him because he lacked "minimum contacts" with the State. The court held it to be "a valid jurisdictional predicate for in personam jurisdiction" that the "defendant [was] present in the forum state and personally served with process." App. to Pet. for Cert. 5. We granted certiorari. 493 U.S. 807, 110 S.Ct. 47, 107 L.Ed.2d 16 (1989).

The proposition that the judgment of a court lacking jurisdiction is void traces back to the English Year Books, see Bowser v. Collins, Y.B.Mich. 22 Edw. IV, f. 30, pl. 11, 145 Eng.Rep. 97 (Ex. Ch. 1482), and was made settled law by Lord Coke in Case of the Marshalsea, 10 Coke Rep. 68b, 77a, 77 Eng.Rep. 1027, 1041 (K.B. 1612). Traditionally that proposition was embodied in the phrase coram non judice, "before a person not a judge"-meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment. American courts invalidated, or denied recognition to, judgments that violated this common-law principle long before the Fourteenth Amendment was adopted. See, e.g., Grumon v. Raymond, 1 Conn. 40 (1814); Picquet v. Swan, 19 F.Cas. 609 (No. 11,134) (CC Mass.1828); Dunn v. Dunn, 4 Paige 425 (N.Y.Ch. 1834);  Evans v. Instine, 7 Ohio 273 (1835);  Steel v. Smith, 7 Watts & Serg. 447 (Pa.1844); Boswell's Lessee v. Otis, 9 How. 336, 350, 13 L.Ed. 164 (1850). In Pennoyer v. Neff, 95 U.S. 714, 732, 24 L.Ed. 565 (1878), we announced that the judgment of a court lacking personal jurisdiction violated the Due Process Clause of the Fourteenth Amendment as well.

To determine whether the assertion of personal jurisdiction is consistent with due process, we have long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State's authority. That criterion was first announced in Pennoyer v. Neff, supra, in which we stated that due process "mean[s] a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights," id., at 733, including the "well-established principles of public law respecting the jurisdiction of an independent State over persons and property," id., at 722. In what has become the classic expression of the criterion, we said in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), that a state court's assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate " 'traditional notions of fair play and substantial justice.' " Id., at 316, 66 S.Ct., at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). See also Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982). Since International Shoe, we have only been called upon to decide whether these "traditional notions" permit States to exercise jurisdiction over absent defendants in a manner that deviates from the rules of jurisdiction applied in the 19th century. We have held such deviations permissible, but only with respect to suits arising out of the absent defendant's contacts with the State. See, e.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). The question we must decide today is whether due process requires a similar connection between the litigation and the defendant's contacts with the State in cases where the defendant is physically present in the State at the time process is served upon him.

Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdiction to enter judgment against him, no matter how fleeting his visit. See, e.g., Potter v. Allin, 2 Root 63, 67 (Conn.1793); Barrell v. Benjamin, 15 Mass. 354 (1819). That view had antecedents in English common-law practice, which sometimes allowed "transitory" actions, arising out of events outside the country, to be maintained against seemingly nonresident defendants who were present in England. See, e.g., Mostyn v. Fabrigas, 98 Eng.Rep. 1021 (K.B.1774); Cartwright v. Pettus, 22 Eng.Rep. 916 (Ch. 1675). Justice Story believed the principle, which he traced to Roman origins, to be firmly grounded in English tradition: "[B]y the common law[,] personal actions, being transitory, may be brought in any place, where the party defendant may be found," for "every nation may . . . rightfully exercise jurisdiction over all persons within its domains." J. Story, Commentaries on the Conflict of Laws §§ 554, 543 (1846). See also id., §§ 530-538; Picquet v. Swan, supra, at 611-612 (Story, J.) ("Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced, on such process, against him").

Recent scholarship has suggested that English tradition was not as clear as Story thought, see Hazard, A General Theory of State-Court Jurisdiction, 1965 S.Ct.Rev. 241, 253-260; Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289 (1956). Accurate or not, however, judging by the evidence of contemporaneous or near-contemporaneous decisions, one must conclude that Story's understanding was shared by American courts at the crucial time for present purposes: 1868, when the Fourteenth Amendment was adopted. The following passage in a decision of the Supreme Court of Georgia, in an action on a debt having no apparent relation to the defendant's temporary presence in the State, is representative:

"Can a citizen of Alabama be sued in this State, as he     passes through it? "Undoubtedly he can. The second of the axioms of     Huberus, as translated by Story, is:  'that all persons who      are found within the limits of a government, whether their      residence is permanent or temporary, are to be deemed      subjects thereof.'  (Stor.Conf.Laws, § 29, Note 3.)

". . . [A] citizen of another State, who is merely     passing through this, resides, as he passes, wherever he is.      Let him be sued, therefore, wherever he may, he will be sued      where he resides.

"The plaintiff in error, although a citizen of Alabama,     was passing through the County of Troup, in this State, and      whilst doing so, he was sued in Troup.  He was liable to be      sued in this State, and in Troup County of this State." Murphy v. J.S. Winter & Co., 18 Ga. 690, 691-692 (1855).

See also, e.g., Peabody v. Hamilton, 106 Mass. 217, 220 (1870) (relying on Story for the same principle); Alley v. Caspari, 80 Me. 234, 236-237, 14 A. 12, 13 (1888) (same).

Decisions in the courts of many States in the 19th and early 20th centuries held that personal service upon a physically present defendant sufficed to confer jurisdiction, without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there. See, e.g., Vinal v. Core, 18 W.Va. 1, 20 (1881); Roberts v. Dunsmuir, 75 Cal. 203, 204, 16 P. 782 (1888);  De Poret v. Gusman, 30 La.Ann., pt. 2, pp. 930, 932 (1878);  Smith v. Gibson, 83 Ala. 284, 285, 3 So. 321 (1887); Savin v. Bond, 57 Md. 228, 233 (1881);  Hart v. Granger, 1 Conn. 154, 165 (1814);  Mussina v. Belden, 6 Abb.Pr. 165, 176 (N.Y.Sup.Ct.1858); Darrah v. Watson, 36 Iowa 116, 120-121 (1872);  Baisley v. Baisley, 113 Mo. 544, 549-550, 21 S.W. 29, 30 (1893); Bowman v. Flint, 37 Tex.Civ.App. 28, 29, 82 S.W. 1049, 1050 (1904). See also Reed v. Hollister, 106 Ore. 407, 412-414, 212 P. 367, 369-370 (1923); Hagen v. Viney, 124 Fla. 747, 751, 169 So. 391, 392-393 (1936);  Vaughn v. Love, 324 Pa. 276, 280, 188 A. 299, 302 (1936). Although research has not revealed a case deciding the issue in every State's courts, that appears to be because the issue was so well settled that it went unlitigated. See R. Leflar, American Conflicts Law § 24, p. 43 (1968) ("The law is so clear on this point that there are few decisions on it"); Note, Developments in the Law-State Court Jurisdiction, 73 Harv.L.Rev. 909, 937-938 (1960). Opinions from the courts of other States announced the rule in dictum. See, e.g., Reed v. Browning, 130 Ind. 575, 577, 30 N.E. 704, 705 (1892); Nathanson v. Spitz, 19 R.I. 70, 72, 31 A. 690, 691 (1895);  McLeod v. Connecticut & Passumpsic River R. Co., 58 Vt. 727, 733-734, 6 A. 648, 649, 650 (1886);  New Orleans J. & G.N.R. Co. v. Wallace, 50 Miss. 244, 248-249 (1874); Wagner v. Hallack, 3 Colo. 176, 182-183 (1877);  Downer v. Shaw, 22 N.H. 277, 281 (1851);  Moore v. Smith, 41 Ky. 340, 341 (1842); Adair County Bank v. Forrey, 74 Neb. 811, 815, 105 N.W. 714, 715-716 (1905). Most States, moreover, had statutes or common-law rules that exempted from service of process individuals who were brought into the forum by force or fraud, see, e.g., Wanzer v. Bright, 52 Ill. 35 (1869), or who were there as a party or witness in unrelated judicial proceedings, see, e.g., Burroughs v. Cocke & Willis, 56 Okla. 627, 156 P. 196 (1916); Malloy v. Brewer, 7 S.D. 587, 64 N.W. 1120 (1895). These exceptions obviously rested upon the premise that service of process conferred jurisdiction. See Anderson v. Atkins, 161 Tenn. 137, 140, 29 S.W.2d 248, 249 (1930). Particularly striking is the fact that, as far as we have been able to determine, not one American case from the period (or, for that matter, not one American case until 1978) held, or even suggested, that in-state personal service on an individual was insufficient to confer personal jurisdiction. Commentators were also seemingly unanimous on the rule. See, e.g., 1 A. Freeman, Law of Judgments 470-471 (1873); 1 H. Black, Law of Judgments 276-277 (1891);  W. Alderson, Law of Judicial Writs and Process 225-226 (1895). See also Restatement of Conflict of Laws §§ 77-78 (1934).

This American jurisdictional practice is, moreover, not merely old; it is continuing. It remains the practice of, not only a substantial number of the States, but as far as we are aware all the States and the Federal Government-if one disregards (as one must for this purpose) the few opinions since 1978 that have erroneously said, on grounds similar to those that petitioner presses here, that this Court's due process decisions render the practice unconstitutional. See Nehemiah v. Athletics Congress of U.S.A., 765 F.2d 42, 46-47 (CA3 1985); Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079, 1088-1091 (Kan.1978), rev'd on other grounds, 611 F.2d 790 (CA10 1979); Harold M. Pitman Co. v. Typecraft Software, Ltd., 626 F.Supp. 305, 310-314 (ND Ill.1986); Bershaw v. Sarbacher, 40 Wash.App. 653, 657, 700 P.2d 347, 349 (1985); Duehring v. Vasquez, 490 So.2d 667, 671 (La.App.1986). We do not know of a single state or federal statute, or a single judicial decision resting upon state law, that has abandoned in-state service as a basis of jurisdiction. Many recent cases reaffirm it. See Hutto v. Plagens, 254 Ga. 512, 513, 330 S.E.2d 341, 342 (1985); Oxmans' Erwin Meat Co. v. Blacketer, 86 Wis.2d 683, 273 N.W.2d 285 (1979);  Lockert v. Breedlove, 321 N.C. 66, 361 S.E.2d 581 (1987);  Nutri-West v. Gibson, 764 P.2d 693 (Wyo.1988);  Klavan v. Klavan, 405 Mass. 1105, 1106, 544 N.E.2d 863, 864 (1989); Nielsen v. Braland, 264 Minn. 481, 483, 484, 119 N.W.2d 737, 738 (1963);  Read v. Sonat Offshore Drilling, Inc., 515 So.2d 1229, 1230 (Miss.1987); Cariaga v. Eighth Judicial District Court, 104 Nev. 544, 762 P.2d 886 (1988); El-Maksoud v. El-Maksoud, 237 N.J.Super. 483, 486-490, 568 A.2d 140, 142-144 (1989); Carr v. Carr, 180 W.Va. 12-14, 375 S.E.2d 190, 192 (1988); O'Brien v. Eubanks, 701 P.2d 614, 616 (Colo.App.1985);  Wolfson v. Wolfson, 455 So.2d 577, 578 (Fla.App.1984);  In re Marriage of Pridemore, 146 Ill.App.3d 990, 991-992, 100 Ill.Dec. 640, 641-642, 497 N.E.2d 818, 819-820 (1986); Swarts v. Dean, 13 Kan.App.2d 228, 766 P.2d 1291, 1292 (1989).

Despite this formidable body of precedent, petitioner contends, in reliance on our decisions applying the International Shoe standard, that in the absence of "continuous and systematic" contacts with the forum, see n. 1, supra, a nonresident defendant can be subjected to judgment only as to matters that arise out of or relate to his contacts with the forum. This argument rests on a thorough misunderstanding of our cases.

The view of most courts in the 19th century was that a court simply could not exercise in personam jurisdiction over a nonresident who had not been personally served with process in the forum. See, e.g., Reber v. Wright, 68 Pa. 471, 476-477 (1871); Sturgis v. Fay, 16 Ind. 429, 431 (1861); Weil v. Lowenthal, 10 Iowa 575, 578 (1860);  Freeman, Law of Judgments, supra, at 468-470;  see also D'Arcy v. Ketchum, 11 How. 165, 176, 13 L.Ed. 648 (1851); Knowles v. Gaslight & Coke Co., 19 Wall. 58, 61, 22 L.Ed. 70 (1874). Pennoyer v. Neff, while renowned for its statement of the principle that the Fourteenth Amendment prohibits such an exercise of jurisdiction, in fact set that forth only as dictum and decided the case (which involved a judgment rendered more than two years before the Fourteenth Amendment's ratification) under "well-established principles of public law." 95 U.S., at 722. Those principles, embodied in the Due Process Clause, required (we said) that when proceedings "involv[e] merely a determination of the personal liability of the defendant, he must be brought within [the court's] jurisdiction by service of process within the State, or his voluntary appearance." Id., at 733. We invoked that rule in a series of subsequent cases, as either a matter of due process or a "fundamental principl[e] of jurisprudence," Wilson v. Seligman, 144 U.S. 41, 46, 12 S.Ct. 541, 542, 36 L.Ed. 338 (1892). See, e.g., New York Life Ins. Co. v. Dunlevy, 241 U.S. 518, 522-523, 36 S.Ct. 613, 614, 60 L.Ed. 1140 (1916); Goldey v. Morning News, 156 U.S. 518, 521, 15 S.Ct. 559, 560, 39 L.Ed. 517 (1895).

Later years, however, saw the weakening of the Pennoyer rule. In the late 19th and early 20th centuries, changes in the technology of transportation and communication, and the tremendous growth of interstate business activity, led to an "inevitable relaxation of the strict limits on state jurisdiction" over nonresident individuals and corporations. Hanson v. Denckla, 357 U.S. 235, 260, 78 S.Ct. 1228, 1243, 2 L.Ed.2d 1283 (1958) (Black, J., dissenting). States required, for example, that nonresident corporations appoint an in-state agent upon whom process could be served as a condition of transacting business within their borders, see, e.g., St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222 (1882), and provided in-state "substituted service" for nonresident motorists who caused injury in the State and left before personal service could be accomplished, see, e.g., Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222 (1916); Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). We initially upheld these laws under the Due Process Clause on grounds that they complied with Pennoyer § rigid requirement of either "consent," see, e.g., Hess v. Pawloski, supra, at 356, 47 S.Ct., at 633, or "presence," see, e.g., Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264, 265, 37 S.Ct. 280, 280, 61 L.Ed. 710 (1917). As many observed, however, the consent and presence were purely fictional. See, e.g., 1 J. Beale, Conflict of Laws 360, 384 (1935); Hutchinson v. Chase & Gilbert, Inc., 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.). Our opinion in International Shoe cast those fictions aside and made explicit the underlying basis of these decisions: Due process does not necessarily require the States to adhere to the unbending territorial limits on jurisdiction set forth in Pennoyer. The validity of assertion of jurisdiction over a nonconsenting defendant who is not present in the forum depends upon whether "the quality and nature of [his] activity" in relation to the forum, 326 U.S., at 319, 66 S.Ct., at 160, renders such jurisdiction consistent with " 'traditional notions of fair play and substantial justice.' " Id., at 316, 66 S.Ct., at 158 (citation omitted). Subsequent cases have derived from the International Shoe standard the general rule that a State may dispense with in-forum personal service on nonresident defendants in suits arising out of their activities in the State. See generally Helicopteros Nacionales de Colombia v. Hall, 466 U.S., at 414-415, 104 S.Ct., at 1872. As International Shoe suggests, the defendant's litigation-related "minimum contacts" may take the place of physical presence as the basis for jurisdiction:

"Historically the jurisdiction of courts to render     judgment in personam is grounded on their de facto power over      the defendant's person.  Hence his presence within the      territorial jurisdiction of a court was prerequisite to its      rendition of a judgment personally binding on him.  Pennoyer      v. Neff, 95 U.S. 714, 733.  But now that the capias ad      respondendum has given way to personal service of summons or      other form of notice, due process requires only that in order      to subject a defendant to a judgment in personam, if he be      not present within the territory of the forum, he have      certain minimum contacts with it such that the maintenance of      the suit does not offend 'traditional notions of fair play      and substantial justice.' "  326 U.S., at 316, 66 S.Ct., at      158 (citations omitted).

Nothing in International Shoe or the cases that have followed it, however, offers support for the very different proposition petitioner seeks to establish today: that a defendant's presence in the forum is not only unnecessary to validate novel, nontraditional assertions of jurisdiction, but is itself no longer sufficient to establish jurisdiction. That proposition is unfaithful to both elementary logic and the foundations of our due process jurisprudence. The distinction between what is needed to support novel procedures and what is needed to sustain traditional ones is fundamental, as we observed over a century ago:

"[A] process of law, which is not otherwise forbidden,     must be taken to be due process of law, if it can show the      sanction of settled usage both in England and in this      country;  but it by no means follows that nothing else can be      due process of law. . . .  [That which], in substance, has      been immemorially the actual law of the land . . .      therefor[e] is due process of law.  But to hold that such a      characteristic is essential to due process of law, would be      to deny every quality of the law but its age, and to render      it incapable of progress or improvement.  It would be to      stamp upon our jurisprudence the unchangeableness attributed      to the laws of the Medes and Persians." Hurtado v.     California, 110 U.S. 516, 528-529, 4 S.Ct. 111, 117-118, 28     L.Ed. 232 (1884).

The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of "traditional notions of fair play and substantial justice." That standard was developed by analogy to "physical presence," and it would be perverse to say it could now be turned against that touchstone of jurisdiction.

Petitioner's strongest argument, though we ultimately reject it, relies upon our decision in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). In that case, a Delaware court hearing a shareholder's derivative suit against a corporation's directors secured jurisdiction quasi in rem by sequestering the out-of-state defendants' stock in the company, the situs of which was Delaware under Delaware law. Reasoning that Delaware's sequestration procedure was simply a mechanism to compel the absent defendants to appear in a suit to determine their personal rights and obligations, we concluded that the normal rules we had developed under International Shoe for jurisdiction over suits against absent defendants should apply viz., Delaware could not hear the suit because the defendants' sole contact with the State (ownership of property there) was unrelated to the lawsuit. 433 U.S., at 213-215, 97 S.Ct., at 2584-2585.

It goes too far to say, as petitioner contends, that Shaffer compels the conclusion that a State lacks jurisdiction over an individual unless the litigation arises out of his activities in the State. Shaffer, like International Shoe, involved jurisdiction over an absent defendant, and it stands for nothing more than the proposition that when the "minimum contact" that is a substitute for physical presence consists of property ownership it must, like other minimum contacts, be related to the litigation. Petitioner wrenches out of its context our statement in Shaffer that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny," 433 U.S., at 212, 97 S.Ct., at 2584. When read together with the two sentences that preceded it, the meaning of this statement becomes clear:

"The fiction that an assertion of jurisdiction over property     is anything but an assertion of jurisdiction over the owner      of the property supports an ancient form without substantial      modern justification.  Its continued acceptance would serve      only to allow state-court jurisdiction that is fundamentally      unfair to the defendant.

"We therefore conclude that all assertions of     state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." Ibid. (emphasis added).

Shaffer was saying, in other words, not that all bases for the assertion of in personam jurisdiction (including, presumably, in-state service) must be treated alike and subjected to the "minimum contacts" analysis of International Shoe; but rather that quasi in rem jurisdiction, that fictional "ancient form," and in personam jurisdiction, are really one and the same and must be treated alike-leading to the conclusion that quasi in rem jurisdiction, i.e., that form of in personam jurisdiction based upon a "property ownership" contact and by definition unaccompanied by personal, in-state service, must satisfy the litigation-relatedness requirement of International Shoe. The logic of Shaffer § holding-which places all suits against absent nonresidents on the same constitutional footing, regardless of whether a separate Latin label is attached to one particular basis of contact-does not compel the conclusion that physically present defendants must be treated identically to absent ones. As we have demonstrated at length, our tradition has treated the two classes of defendants quite differently, and it is unreasonable to read Shaffer as casually obliterating that distinction. International Shoe confined its "minimum contacts" requirement to situations in which the defendant "be not present within the territory of the forum," 326 U.S., at 316, 66 S.Ct., at 158, and nothing in Shaffer expands that requirement beyond that.

It is fair to say, however, that while our holding today does not contradict Shaffer, our basic approach to the due process question is different. We have conducted no independent inquiry into the desirability or fairness of the prevailing in-state service rule, leaving that judgment to the legislatures that are free to amend it; for our purposes, its validation is its pedigree, as the phrase "traditional notions of fair play and substantial justice" makes clear. Shaffer did conduct such an independent inquiry, asserting that " 'traditional notions of fair play and substantial justice' can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage." 433 U.S., at 212, 97 S.Ct., at 2584. Perhaps that assertion can be sustained when the "perpetuation of ancient forms" is engaged in by only a very small minority of the States. Where, however, as in the present case, a jurisdictional principle is both firmly approved by tradition and still favored, it is impossible to imagine what standard we could appeal to for the judgment that it is "no longer justified." While in no way receding from or casting doubt upon the holding of Shaffer or any other case, we reaffirm today our time-honored approach, see, e.g., Ownbey v. Morgan, 256 U.S. 94, 110-112, 41 S.Ct. 433, 438, 65 L.Ed. 837 (1921); Hurtado v. California, 110 U.S., at 528-529, 4 S.Ct., at 117;  Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276-277, 15 L.Ed. 372 (1856). For new procedures, hitherto unknown, the Due Process Clause requires analysis to determine whether "traditional notions of fair play and substantial justice" have been offended. International Shoe, 326 U.S., at 316, 66 S.Ct., at 158. But a doctrine of personal jurisdiction that dates back to the adoption of the Fourteenth Amendment and is still generally observed unquestionably meets that standard.

A few words in response to Justice BRENNAN's opinion concurring in the judgment: It insists that we apply "contemporary notions of due process" to determine the constitutionality of California's assertion of jurisdiction. Post, at 632. But our analysis today comports with that prescription, at least if we give it the only sense allowed by our precedents. The "contemporary notions of due process" applicable to personal jurisdiction are the enduring "traditional notions of fair play and substantial justice" established as the test by International Shoe. By its very language, that test is satisfied if a state court adheres to jurisdictional rules that are generally applied and have always been applied in the United States.

But the concurrence's proposed standard of "contemporary notions of due process" requires more: It measures state-court jurisdiction not only against traditional doctrines in this country, including current state-court practice, but also against each Justice's subjective assessment of what is fair and just. Authority for that seductive standard is not to be found in any of our personal jurisdiction cases. It is, indeed, an outright break with the test of "traditional notions of fair play and substantial justice," which would have to be reformulated "our notions of fair play and substantial justice."

The subjectivity, and hence inadequacy, of this approach becomes apparent when the concurrence tries to explain why the assertion of jurisdiction in the present case meets its standard of continuing-American-tradition-plus-innate-fairness. Justice BRENNAN lists the "benefits" Mr. Burnham derived from the State of California-the fact that, during the few days he was there, "[h]is health and safety [were] guaranteed by the State's police, fire, and emergency medical services; he [was] free to travel on the State's roads and waterways;  he likely enjoy[ed] the fruits of the State's economy." Post, at 637-638. Three days' worth of these benefits strike us as powerfully inadequate to establish, as an abstract matter, that it is "fair" for California to decree the ownership of all Mr. Burnham's worldly goods acquired during the 10 years of his marriage, and the custody over his children. We daresay a contractual exchange swapping those benefits for that power would not survive the "unconscionability" provision of the Uniform Commercial Code. Even less persuasive are the other "fairness" factors alluded to by Justice BRENNAN. It would create "an asymmetry," we are told, if Burnham were permitted (as he is) to appear in California courts as a plaintiff, but were not compelled to appear in California courts as defendant; and travel being as easy as it is nowadays, and modern procedural devices being so convenient, it is no great hardship to appear in California courts. Post, at 638-639. The problem with these assertions is that they justify the exercise of jurisdiction over everyone, whether or not he ever comes to California. The only "fairness" elements setting Mr. Burnham apart from the rest of the world are the three days' "benefits" referred to above-and even those, do not set him apart from many other people who have enjoyed three days in the Golden State (savoring the fruits of its economy, the availability of its roads and police services) but who were fortunate enough not to be served with process while they were there and thus are not (simply by reason of that savoring) subject to the general jurisdiction of California's courts. See, e.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S., at 414-416, 104 S.Ct., at 1872-1873. In other words, even if one agreed with Justice BRENNAN's conception of an equitable bargain, the "benefits" we have been discussing would explain why it is "fair" to assert general jurisdiction over Burnham-returned-to-New-Jersey-after-service only at the expense of proving that it is also "fair" to assert general jurisdiction over Burnham-returned-to-New-Jersey-without-service-which we know does not conform with "contemporary notions of due process."

There is, we must acknowledge, one factor mentioned by Justice BRENNAN that both relates distinctively to the assertion of jurisdiction on the basis of personal in-state service and is fully persuasive-namely, the fact that a defendant voluntarily present in a particular State has a "reasonable expectatio[n]" that he is subject to suit there. Post, at 637. By formulating it as a "reasonable expectation" Justice BRENNAN makes that seem like a "fairness" factor; but in reality, of course, it is just tradition masquerading as "fairness." The only reason for charging Mr. Burnham with the reasonable expectation of being subject to suit is that the States of the Union assert adjudicatory jurisdiction over the person, and have always asserted adjudicatory jurisdiction over the person, by serving him with process during his temporary physical presence in their territory. That continuing tradition, which anyone entering California should have known about, renders it "fair" for Mr. Burnham, who voluntarily entered California, to be sued there for divorce-at least "fair" in the limited sense that he has no one but himself to blame. Justice BRENNAN's long journey is a circular one, leaving him, at the end of the day, in complete reliance upon the very factor he sought to avoid: The existence of a continuing tradition is not enough, fairness also must be considered;  fairness exists here because there is a continuing tradition.

While Justice BRENNAN's concurrence is unwilling to confess that the Justices of this Court can possibly be bound by a continuing American tradition that a particular procedure is fair, neither is it willing to embrace the logical consequences of that refusal-or even to be clear about what consequences (logical or otherwise) it does embrace. Justice BRENNAN says that "[f]or these reasons [i.e., because of the reasonableness factors enumerated above], as a rule the exercise of personal jurisdiction over a defendant based on his voluntary presence in the forum will satisfy the requirements of due process." Post, at 639. The use of the word "rule" conveys the reassuring feeling that he is establishing a principle of law one can rely upon-but of course he is not. Since Justice BRENNAN's only criterion of constitutionality is "fairness," the phrase "as a rule" represents nothing more than his estimation that, usually, all the elements of "fairness" he discusses in the present case will exist. But what if they do not? Suppose, for example, that a defendant in Mr. Burnham's situation enjoys not three days' worth of California's "benefits," but 15 minutes' worth. Or suppose we remove one of those "benefits"-"enjoy[ment of] the fruits of the State's economy"-by positing that Mr. Burnham had not come to California on business, but only to visit his children. Or suppose that Mr. Burnham were demonstrably so impecunious as to be unable to take advantage of the modern means of transportation and communication that Justice BRENNAN finds so relevant. Or suppose, finally, that the California courts lacked the "variety of procedural devices," post, at 639, that Justice BRENNAN says can reduce the burden upon out-of-state litigants. One may also make additional suppositions, relating not to the absence of the factors that Justice BRENNAN discusses, but to the presence of additional factors bearing upon the ultimate criterion of "fairness." What if, for example, Mr. Burnham were visiting a sick child? Or a dying child? Cf. Kulko v. Superior Court of California, City and County of San Francisco, 436 U.S. 84, 93, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978) (finding the exercise of long-arm jurisdiction over an absent parent unreasonable because it would "discourage parents from entering into reasonable visitation agreements"). Since, so far as one can tell, Justice BRENNAN's approval of applying the in-state service rule in the present case rests on the presence of all the factors he lists, and on the absence of any others, every different case will present a different litigable issue. Thus, despite the fact that he manages to work the word "rule" into his formulation, Justice BRENNAN's approach does not establish a rule of law at all, but only a "totality of the circumstances" test, guaranteeing what traditional territorial rules of jurisdiction were designed precisely to avoid: uncertainty and litigation over the preliminary issue of the forum's competence. It may be that those evils, necessarily accompanying a freestanding "reasonableness" inquiry, must be accepted at the margins, when we evaluate nontraditional forms of jurisdiction newly adopted by the States, see, e.g., Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 115, 107 S.Ct. 1026, 1035, 94 L.Ed.2d 92 (1987). But that is no reason for injecting them into the core of our American practice, exposing to such a "reasonableness" inquiry the ground of jurisdiction that has hitherto been considered the very baseline of reasonableness, physical presence.

The difference between us and Justice BRENNAN has nothing to do with whether "further progress [is] to be made" in the "evolution of our legal system." Post, at 631, n. 3. It has to do with whether changes are to be adopted as progressive by the American people or decreed as progressive by the Justices of this Court. Nothing we say today prevents individual States from limiting or entirely abandoning the in-state-service basis of jurisdiction. And nothing prevents an overwhelming majority of them from doing so, with the consequence that the "traditional notions of fairness" that this Court applies may change. But the States have overwhelmingly declined to adopt such limitation or abandonment, evidently not considering it to be progress. The question is whether, armed with no authority other than individual Justices' perceptions of fairness that conflict with both past and current practice, this Court can compel the States to make such a change on the ground that "due process" requires it. We hold that it cannot.

Because the Due Process Clause does not prohibit the California courts from exercising jurisdiction over petitioner based on the fact of in-state service of process, the judgment is

Affirmed.