Does the Constitution Follow the Flag?

Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law
by Kal Raustiala

Reviewed by Adam Fleisher

The jurisdiction of the Constitution has been disputed since the earliest days of the Republic. When the United States was expanding, were its territories (like California) the same as any state formally incorporated in the Union? And what rules should govern colonies like the Philippines or military bases or consulates abroad? And how does the Constitution apply – if at all – to noncitizens, both within and outside the country?

These issues are explored in terrific depth and detail in Kal Raustiala’s Does the Constitution Follow the Flag? Raustiala, a law professor at UCLA, focuses on what legal frameworks govern when the United States reaches beyond its physical borders. He combines a careful study of case law with a history of America’s political and economic development over the last 200 years to demonstrate that the questions we face today, particularly with regard to detainee policy in the war on terror, are directly related to ambiguities the United States has long exploited as its power has grown.

Law is determined by territoriality, which means, in Raustiala’s words, “where you are determines what rules you are governed by.” It is grounded in the basic idea of sovereignty prevailing since the Treaty of Westphalia in 1648: over a formal physical space the state is sovereign. But in practice it is not so simple.

States have historically extended their laws beyond their borders-a phenomenon called extraterritoriality-commensurate with their power to do so. For instance, U.S. soldiers on foreign military bases are insulated from foreign law, and are instead under the jurisdiction of the United States. And, within a sovereign’s realm, different areas can be subjected to different legal regimes; Raustiala calls this “intraterritoriality.” So in occupied territories, Indian lands, and so on, the Constitution does not entirely apply. Accepting that the Constitution didn’t apply everywhere within U.S. borders made it easier to justify limits on the Constitution when the United States was acting beyond its borders.

However, in 1857 the Supreme Court declared that the U.S. could not acquire new territory in order to rule beyond the Constitution, nor could the government, when acting in a territory, “put off its character and assume discretionary or despotic powers which the Constitution has denied to it.” So much for the idea, it would seem, that as a sovereign state, the United States could determine what was part of its “constitutional core,” and what was part of the “periphery.” But this finding appeared in the infamous Dred Scott decision. Thanks to the Civil War and the end of slavery, as well as the Court’s desire to minimize the ruling’s impact – Dred Scott would have made it virtually impossible to hold overseas possessions – nothing would come of it. The case’s “tainted reputation,” as Raustiala delicately puts it, “made it easier to ignore the implications.”

The United States instead continued to act abroad with limited restrictions under the theory of extraterritoriality. In the Westphalian system, any U.S. presence on foreign territory was contingent upon agreement with the local sovereign (even if coerced). America was thus unfettered because its authority did not derive from the Constitution, bur rather from that local agreement. In 1950 the Supreme Court, in Johnson v. Eisentrager, endorsed this theory, agreeing with the Eisenhower administration that German soldiers captured by the United States in China were not able to acquire the right of habeas corpus. However, as Justice Hugo Black presciently warned in his dissent, the Court was permitting the executive, “by deciding where its prisoners will be tried and imprisoned,” to override the power of the courts. This might sound familiar.

And thus Does the Constitution Follow the Flag? moves inexorably to the controversial questions at the heart of America’s policies in the war on terror. The Bush administration relied on precedents of extraterritoriality, including Eisentrager, to curtail the rights of noncitizens. Though much of the criticism of Guantanamo is “not legally sophisticated,” says Raustiala, at its core is the legitimate concern that it is “a deliberate refuge from the reach of American law…subject to nothing other than the whim of the U.S. government.” Given the extent of U.S. power today, this concern is especially profound.

The Boumediene decision, which held that the detainees could petition for habeas rights, curtailed some of this autonomy. The Court found that extraterritoriality did not apply because Guantanamo was for practical purposes under the control of the United States, and not “abroad.” If actual sovereignty were the decisive factor the government could just give land to another state and lease it back. The executive could not be allowed to “switch the Constitution on or off at will,” in the words of Anthony Kennedy. However, Boumediene didn’t actually take this power away from the executive. By focusing on “practicality,” observes Raustiala, it simply invited the government to find new offshore detention sites “more distant, where the United States had fewer measures of control, where constitutional rights were more ‘impractical.’” The Obama administration has already argued that habeas does not extend to Bagram Air Base.

We live in a world in which “constitutional and jurisdictional borders remain complex, messy, and contingent.” It suits us. A hegemonic United States will continue to exploit territorial sovereignty to further its foreign policy interests, jealously guarding its own borders while impinging upon other states in order to get beyond the reach of the Constitution. It’s been more than 450 years since Westphalia, and it’s still good to be king.

Excerpt: “Although the Bush administration was widely branded as lawless, in fact the executive branch’s actions can be seen as highly motivated by and solicitous of legal rules. Why create a complex program thousands of miles away in unfamiliar terrain, which requires the creation of a network of front companies to fly suspects halfway around the world under false pretenses? The U.S. government did so because it was motivated by concerns over the legal impact of its actions, yet also under intense political pressure to act aggressively against terrorists. At the same time, the tremendous expansion of lawyers throughout the national security apparatus, as well as the existence of federal statutes such as the War Crimes Act of 1996, created powerful incentives to seek legal means by which to take action.”

Further Reading: The Terror Presidency: Law and Judgment Inside the Bush Administration and Law and the Long War: The Future of Justice in the Age of Terror


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