Lines in the sand: the importance of borders in American federalism.

• Author: Kreimer, Seth F.
• Position: Response to article by Mark D. Rosen in this issue, p. 855

The highest praise to which a scholar can aspire is to have one's work accepted in print as a vital insight. But being viewed as a worthy enough participant in debate to be made the subject of careful published criticism by a colleague comes a close second. Professor Rosen offers this latter honor to the work I have done on the subject of extraterritorial regulation. Generously characterizing me as a "prominent scholar," (1) Professor Rosen devotes a good portion of his thoughtful and extensive article to the effort to demonstrate that my earlier work erred in arguing that American constitutional federalism is inconsistent with efforts by states to prosecute their citizens for actions that are in fact legal in the sister states where the actions take place. Professor Rosen and the editors of the University of Pennsylvania Law Review have graciously offered me the opportunity to respond.

Rather than reproduce the arguments I have made in earlier articles in extenso, (2) I will endeavor to highlight the most important elements of conflict between our approaches and to indicate the reasons why I continue to maintain my original position. In the course of the discussion, I will touch on Supreme Court developments since the time that I engaged in my original research. This response begins with an overview of the differences between Professor Rosen's perceptions of the nature of American federalism and my own, continues with an analysis of the differences between our understandings of the current caselaw, and concludes with an examination of the philosophical issues between us.

1. THE NATURE OF AMERICAN FEDERALISM

   1. Areas of Agreement

      It is well to begin with areas where Professor Rosen and I find agreement.

      We agree, first of all, that American federalism does in fact leave room for substantial variation of moral visions and legal regimes among states, and that this is a strength of our system. When citizens can choose among and compare the virtues of the permission of assisted suicide in Oregon, (3) covenant marriage in Louisiana, (4) medical marijuana in California, (5) and same-sex unions in Vermont, (6) likely to have a society that is morally richer, practically freer, and personally more fulfilling than if a single inflexible code governed the nation. Second, we agree that citizens by constitutional right do, and morally should, have the opportunity to leave the state polities of which they find themselves members. (7) Third, we agree that when citizens leave their home states, those states rarely seek to enforce their moral visions by criminally prosecuting their citizens' lawful activities in other states. (8) States often extend their reach to punish extraterritorial actions that have tangible impacts on the territory over which they are sovereign; a shot fired across the border from South Carolina into Georgia is the classic justification for the exercise of Georgia's criminal authority. But an effort by Georgia to prosecute its citizens for gambling in Nevada is aberrant. Our differences arise in large measure over whether this third fact is a regrettable artifact of misunderstanding the nature of the state's real powers--as Professor Rosen appears to believe--or a legally compelled and normatively desirable characteristic of American federalism, as I maintain.

   2. History, Practice, and Structure: Territorial States

      In common understanding, a state's law governs its own territory. Most Americans, when they drive across the border from Pennsylvania to New Jersey, assume that the relevant speed limit becomes New Jersey's, not Pennsylvania's; if offered a seat at a blackjack table in Nevada, they would believe that the question of its legality is governed by Nevada law. And in most cases, they would be right, for, in general, state criminal statutes are territorially limited. Indeed, in most states, explicit provisions of their own constitutions preclude the states from prosecuting wholly extraterritorial crimes by requiring that juries be drawn from among the geographic community where the alleged crime occurred. (9)

      The Federal Constitution is not so explicit, but a series of elements of constitutional structure were framed on the premise that a state's legitimate authority is territorial. Boundaries between states are territorially defined and unalterable; one state cannot be established "within the Jurisdiction" of another without the former state's consent. (10) The Extradition Clause of Article IV provides that an accused who flees from the state where a crime is committed must be "delivered up [and] removed to the State having Jurisdiction of the Crime;" (11) it acknowledges that the responsibility and prerogative for punishment rests with the state within which the crime occurred. (12) And other provisions are at odds with the notion that state residents carry a personal law with them when they venture into other states. (13) The guaranty of a jury local to the situs of the alleged crime was embodied in Article III's requirement that for federal offenses "the trial of all Crimes ... shall be held in the State where said Crimes shall have been committed." (14) Antifederalist fears "that Article III's provision failed to preserve the common-law right to be tried by a `jury of the vicinage' ... furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth [Amendment]." (15) The Sixth Amendment now guarantees, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." (16) A strong line of cases holds that the Sixth Amendment is incorporated against the states, (17) and thus functions as an effective bar to wholly extraterritorial state prosecutions.

      As I showed at exhaustive (and exhausting) length previously, (18) review of the historical context, contemporaneous commentary and caselaw demonstrates that the understanding of the scope of the sovereign power of states before the middle of the twentieth century did not include the right to regulate citizens extraterritorially. Even in the case of the most serious moral commitments, under generally accepted law a state could not impose those commitments on its citizens within territory of neighboring states whose commitments differed. Before the Civil War, for example, Justice Marshall was voicing the common constitutional wisdom when he observed in Cohens v. Virginia that it is "clear, that a State legislature, the State of Maryland, for example, cannot punish those who, in another State, conceal a felony committed in Maryland." (19) This was the virtually unanimous opinion of judicial authority in every state between the founding of the Republic and the Civil War.

      Within a decade after the Fourteenth Amendment's adoption in 1868, the Supreme Court began to read the territorial restrictions on state sovereignty into the definition of due process. At the turn of the century, the Supreme Court struck down Louisiana's attempt to punish its citizens for making offensive insurance contracts in New York on the ground that it "prohibits an act which under the Federal Constitution the defendants had a right to perform.... [The state's] power does not and cannot extend to prohibiting a citizen from making contracts ... outside of the limits and .jurisdiction of the State." (20) Although the Supreme Court qualified this limitation by allowing prosecution of "[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it," (21) the justifying effects were tangible and direct results adverse to the public order of the prosecuting jurisdiction, not the diffuse butterfly's wings effects on "public norms" that Professor Rosen would use to justify prosecution. Professor Rosen's laments regarding territorial limitations were echoed in the pleas of Louisiana's court in Allgeyer that extraterritorial prosecution was necessary to save "the sovereignty of the State" from "mockery." (22) The Supreme Court unanimously rejected those pleas in Allgeyer and regularly maintained that rejection. (23)

      I do not understand Professor Rosen to question my reading of this history, for he does not address it. Rather, he apparently maintains that modern caselaw has rendered earlier law irrelevant. Even if there has been an evolution away from territorial limitations, and as I discuss below, the evolution has not gone as far as Professor Rosen believes, the unbroken rejection of extraterritorial state-enforced moralism for the first 150 years of the Republic retains relevance in three dimensions.

      First, the historical practice and understanding of the territorial limits of state regulation inform the construction of contemporary constitutional claims. For a wing of the Court led by Justice Scalia, at least, the understandings in place at the time of the adoption of the Fourteenth Amendment have been crucial guideposts in construing the demands of due process. (24)

      Second, the historical understanding of the limits of state power suggests that a claim that states have "retained" authority under the Tenth Amendment to regulate extraterritorially is weakly based: if the states were not understood at the time of the framing to have authority to regulate activities in other states, it is hard to claim that they "retained" that authority. (25)

      Third, the fact that the American polity operated with reasonable success under a territorialist regime--and indeed with greater normative diversity than obtains currently--raises questions about Professor Rosen's claim that a territorially based system would "cripple" the possibilities for the normative benefits of federalism. (26)

   3. The Virtues of Federalism

      Professor Rosen and I agree that one of the virtues of the system of American federalism is its capacity to further a variety of...