Schmitt on Slavery and Extraterritorial State Power

Jeffrey M. Schmitt, Florida Coastal School of Law, has posted Constitutional Limitations on Extraterritorial State Power: State Regulation, Choice of Law, and Slavery, which is forthcoming in the Mississippi Law Journal.  Here is the abstract:    

Modern legal scholarship has been highly critical of the Supreme Court’s precedent governing when a state may apply its law to conduct that occurs beyond its borders. Under this precedent, while a state court has broad discretion to apply forum law through its choice of law analysis, a state legislature may not pass legislation which regulates wholly extraterritorial conduct. Courts and scholars have long argued that the prohibition on extraterritorial legislation should be abandoned and that, under principles of federalism, stricter constitutional limitations should be placed on a state’s choice of law. Moreover, scholars have argued that these doctrines are inconsistent because there is no meaningful distinction between action by a state’s courts and its legislature.

This Article responds to such criticism by arguing that the Court’s doctrines are fully consistent with the treatment of extraterritorial state power under the antebellum Constitution. In the decades leading up to the Civil War, the most important legal, political, and social issue of the day — the subject of slavery — provoked one of the country’s first and most contentious disputes over the extraterritorial application of state law. When arguing for the rejection of southern law, northerners asserted that any forced application of the law of slavery would infringe on fundamental aspects of the sovereignty of the northern states. In response, southerners contended that, under implicit principles of federalism which commanded that southern law to be treated on equal terms, northern states were constitutionally required to apply southern law when ordinary choice of law rules so dictated. Facing this conflict between principles of state sovereignty and state equality, northern courts followed traditional legal doctrine by holding that state sovereignty must prevail.

An appreciation of the importance of state sovereignty to the antebellum constitution helps to make sense of the Court’s modern extraterritoriality doctrines. If state sovereignty is viewed as a fundamental tenant of federalism, any limitations on a state’s ability to apply its own law should come only from the Due Process concerns of individual litigants. A robust view of state sovereignty also fully supports the Court’s prohibition on extraterritorial legislation, despite recent judicial criticism of the doctrine. Finally, because forcing a state court to apply and enforce the law of another sovereign has very different implications for state sovereignty than a rule prohibiting a state legislature from regulating conduct in another state, state sovereignty provides a potential way to reconcile the modern Court’s differing treatment of state courts and state legislatures.