ROVING EXTRATERRITORIALITY: THE MURKY DOCTRINE ON STATE LAWS REGULATING ABSENT CITIZENS.

• Date: 01 November 2024
• Author: Schlueter, Leo

It is generally agreed that sovereigns have the power to punish the crimes of their citizens abroad, at least in some situations. But sovereigns rarely exercise this power, and its contours are not well understood. This is especially true in the context of American federalism. It is unclear to what degree states have retained their sovereign extraterritorial powers, and the Supreme Court has never had occasion to fully explain their limits. Recent political developments, however, make it plausible that the question will soon arise. This Note attempts to provide some insight into the future debate over state criminal extraterritorial jurisdiction by describing its doctrinal history and constitutional implications. It explores how wider doctrinal debates regarding the limits and rationale of extraterritorial power over citizens in the national context affected, and continue to affect, how courts and scholars have approached the issue in the state context. Specifically, a shifting understanding of extraterritoriality within the Supreme Court's precedent has caused its subsequent treatment of the state issue to be remarkably unclear. The Note concludes by discussing the constitutional questions and opportunities presented by the potential doctrinal approaches, particularly in context of the Article IV Extradition Clause, the 6th Amendment jury right, and the line of cases culminating in Hyatt III.

INTRODUCTION

A hypothetical: what would happen if Texas attempted to criminalize its citizens' participation in surrogate birth activities outside the state? Ethical and policy problems aside, it is highly unclear what the constitutional status of such a law would be. This Note will discuss that question: namely, what authority a State has in its own courts over its own citizens, based solely on their citizenship rather than their location at the time of the act. The discussion will be limited to the criminal dimension of such authority, since, for reasons which will be outlined below, the criminal dimension of this exterritoriality issue has been far less clearly addressed than its civil corollary. The Fourth Restatement of Foreign Relations refers to this type of authority as "active-personality" jurisdiction, (1) and so that term will be used throughout this Note.

Partially because something like this has never been attempted by states within the U.S. system, there is very little scholarship, and even less precedent, on the topic. What little writing does exist is deeply divided and often ambiguous. In an attempt to clarify the discussion surrounding active-personality jurisdiction, this Note seeks to be descriptive rather than normative, outlining the scholarship, doctrine, precedent, and contextual law which is most relevant to the active-personality jurisdiction question. Specifically, this Note will focus on the doctrinal history and content of active personality, a dimension which has been especially neglected in prior discussions.

Towards that end, this Note will consist of three parts: Part I will discuss what the power of nations to regulate extraterritorially with regard to their citizens has been recognized to be, both generally and within American jurisprudence. Part II will investigate to what extent the states have retained that power, specifically through the lens of Supreme Court precedent. Finally, Part III will briefly touch on the implications that state active-personality power might have for other provisions of the Constitution, especially in light of several modern Court precedents. This is important because while constitutionality is not the main focus of the Note, it may affect how the Court interprets the threads of relevant doctrinal history.

I. FRAMING: WHY ACTIVE PERSONALITY MATTERS

One cause for the murkiness surrounding the nature of active-personality jurisdiction is that the states have provided very little opportunity for it to become a controversy before the Court. (2) However, such a law may be more plausible than it first appears.

Surrogacy, although perhaps not as controversial as many other ethics issues, (3) has received substantial attention by the Catholic Church and a small but vocal group of conservatives. Recently, Pope Francis condemned what he called the "despicable ... practice of so-called surrogate motherhood," calling on the international community to "prohibit this practice universally." (4) Several conservative commentators have also touched on this theme. (5)

In the political sphere, Italy's legislature under Giorgia Meloni has recently passed a bill which renders surrogacy, already illegal in Italy and many other European nations, a "universal crime[]," meaning that it applies to Italian citizens who participate in so-called procreative tourism by traveling to other countries, such as the United States or India, where the practice is legal. (6) As of this Note's writing, nothing like this has been presented in the United States, at either the federal or state level. (7) However, Italy's example, and other practical considerations, give some reason to think that such a move could be on the horizon. (8)

II. ACTIVE-PERSONALITYJURISDICTION GENERALLY

A. Conflict of Laws and Criminal Law

Criminal active-personality jurisdiction has a quirk which sets it apart from most conflict-of-laws discussions; namely that "[t]he Courts of no country [state] execute the penal laws of another." (9) This fact renders much of the traditional conflict-of-laws discussions irrelevant, since those doctrines deal with the application of one jurisdiction's law by another. (10) Criminal law is different, since the only courts that could be applying the law would be the courts of the country which enacted it. Thus, application of criminal law is only a binary question: Does forum law apply or not? The answer can only be yes or no.

Generally, the reach of criminal law is territorially limited. The general rule, Story tells us, is that "crimes [are] altogether local" which makes them "cognizable ... and punishable exclusively in the country, where they are committed." (11) However, when Story wrote that criminal laws are "local" he was simply recognizing the aforementioned principle that they are not recognized by other jurisdictions, and that because of this, "[t]he courts of no country execute the penal laws of another." (12) This discussion does not apply to active- personality jurisdiction, where a country is executing its own penal laws.

B. The Consensus

In fact, Story made quite clear that active-personality jurisdiction was appropriate, although it was used more rarely than territorial jurisdiction. He wrote that "although the laws of a nation have no direct binding force, or effect, except upon persons within its own territories ... every nation has a right to bind its own subjects by its own laws in every other place." (13) This is no small exception; Story described how it is "well founded in the practice of nations." (14)

This rule arises multiple times in the Commentaries. In another section, Story wrote that "no sovereignty can extend its process beyond its own territorial limits." (15) Again, Story meant only that the enforcement process cannot be implemented by other countries; right after this, he reemphasized that as to citizens domiciled abroad, so far as their "rights, duties, obligations, and acts afterwards come under the cognizance of the tribunals of the sovereign power of their own country, ... there may be no just ground to exclude this claim." (16) But of course, when "duties, obligations, and acts come under the consideration of other countries ... the duty of recognizing and enforcing such a claim of sovereignty, is neither clear, nor generally admitted." (17) This principle, of course, follows directly from the aforementioned fact that one sovereign cannot enforce the criminal laws of another.

Story was not crafting a novel rule here; in pointing out that "there may be no just ground" to exclude the claim that the actions of citizens while abroad can "come under the cognizance of the tribunals of the sovereign power of their own country," (18) and describing the rule that "[e]very nation ... possesses the right to regulate and govern its own native-born subjects everywhere," (19) he derived support from Blackstone, who spoke of the "implied, original, and virtual allegiance" which the citizens owed to their own country, even while abroad. (20) Writing two years after Story's Commentaries were first published, renowned American scholar (and third Supreme Court reporter (21)) Henry Wheaton noted that the judicial power of "every independent State" extends to the punishment of all local offenses by its subjects "wheresoever committed." (22)

It is not particularly difficult to find English cases which demonstrate that Story's description of active-personality jurisdiction was taken for granted by the English legal system. In Rex v. Sawyer, (23) the court rejected the idea that "the words of the statute could not extend to places situate[d] in the dominions of an independent foreign power," stating that "for this no authority was cited ... and, in fact, the cases are all the other way." (24) Sawyer is particularly striking, because although it initially appears to be an argument about the legality of active-personality jurisdiction per se, it turns out that both parties agreed on the propriety of such laws. The defense acknowledged that "[i]f the jurisdiction is to be supported here, I apprehend that it must be upon the ground that a British subject owes allegiance to the laws of his country wherever he goes." (25) The disagreement was merely over whether "it is essential that [the fact that the accused is a British citizen] should appear on the face of the indictment." (26) Thus, both parties in Sawyer took for granted the possibility and efficacy of active-personality legislation.

The 1843 case of Regina v. Azzopardi (27) used parallel reasoning to that of Sawyer...