Roving Extraterritoriality: The Murky Doctrine on State Laws Regulating Absent Citizens

Leo Schlueter*

t 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.

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*J.D. Candidate, Notre Dame Law School, 2025.  I am deeply grateful to Professor Christian Burset for his excellent guidance during the drafting of this Note.  I am also grateful to Professors Sherif Girgis and Samuel Bray for helpful comments on the original idea.  Special thanks to my colleagues on the Notre Dame Law Review for their edits and advice.  Most of all, I am thankful for my wife, Margaret, who supports me in all things.  AMDG.