No Comment, Six Questions — December 23, 2009, 12:37 pm

Does the Constitution Follow the Flag?: Six Questions for Kal Raustiala

Justice Ruth Bader Ginsburg recently noted that, although one might assume that the Bill of Rights follows and limits the conduct of American officials wherever they go, “that is not our current jurisprudence.” UCLA law professor Kal Raustiala has patiently traced the way in which the flag was separated from the Constitution in a new Oxford University Press book, Does the Constitution Follow the Flag? I put six questions to Raustiala about his book.

1. The United States started with a notion of strict territoriality. As John Calhoun put it, “the criminal jurisdiction of a nation is limited to its own dominions and to vessels under its flag… it cannot extend it to acts committed under the dominion of another without violating its sovereignty and independence.” But today, Justice Department prosecutors delve into bribery payments made by British officials to Saudi officials concerning aviation contracts; they recently arrested a Swiss lawyer in Korea on charges of bribing an Azeri official, even though the conduct had no connection to the United States and was not criminal under Swiss or Azeri law. How do you account for the radical transformation of the American vision of strict territoriality over a period of 150 years?

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The simplest answer is that the rise of American power transformed ideas about the territorial limits of the law. In 1844, when Calhoun wrote those words, the United States was still a weak nation, eager to avoid entanglements with European powers. Strict territoriality limited our ability to reach out, but was also a shield that stopped others from reaching in. Today, the United States is a superpower. We extend our law beyond our borders because we have global interests. And, to a large degree, we do so simply because we can. Now that we wield a big sword, in other words, the shield is less significant.

That said, to some degree my book challenges the premise of the question. The era of strict territoriality was actually not so strict. Extraterritoriality–meaning the extension of domestic law beyond our borders–has long been a facet of American history. In the nineteenth century we routinely extended our legal system into non-Western nations as a way to protect Americans, and therefore American interests, abroad. An American in Shanghai a century ago who committed a crime would not have faced a Chinese court; instead, he or she would have been tried by an American judge sitting in the “U.S. District Court for China.”

That we ever had a federal court in China is fascinating but forgotten. (At least here–the Chinese haven’t forgotten it). It also illustrates that there is nothing new about extraterritoriality. What is new is the following: rather than simply extend American law to Americans living in “uncivilized” societies, today the United States routinely applies its laws against foreigners and citizens alike–and does so all over the world, including in the territories of other Western powers. We can do this because we have a huge market that gives us leverage over many actors. Our extraterritorial claims often irritate our allies, as they irritated the Chinese a century ago. But no one really has the power to make us stop. In fact, the more common response today is to try to emulate American extraterritoriality.

2. You present the presidential election of 1900 as a turning point for the idea that U.S. law had extraterritorial application. The advocates of a new American empire, led by McKinley, pursued a civilizing mission into the new territories gained during the war with Spain. On the other hand, William Jennings Bryan and his party decried this as imperialism and adhered to an older view. It seems clear from your account that both the McKinley and Bryan views are still with us to some extent, but who won this battle in 1900, and what were the consequences of the election for the notion of an extraterritorial constitution?

The election of 1900 was in many respects about whether the United States could and should become an imperial power. McKinley’s victory was widely seen as a popular endorsement of imperialism, since McKinley favored keeping the colonies–Puerto Rico, the Philippines–that the United States had just acquired from Spain.

McKinley’s victory in turn forced the Supreme Court to decide how our new imperial ambitions meshed with our constitutional traditions. The short answer from the Court was: they don’t mesh well. Following the lead of the political branches, the justices tended to believe that in order to be a great power–and everyone in 1900 thought that we were now a “power of the first rank”–the United States must not be hobbled in foreign affairs by the sort of restrictions found in the Bill of Rights. That meant that we had to be able to control foreign territories without necessarily treating them as candidates for statehood. At the time, no one thought Puerto Rico or the Philippines could ever become a state–they were too different racially, socially, economically. Therefore, the thinking went, we had to keep them as colonies. The Constitution, in other words, did not and should not follow the flag, lest it interfere with our rise as a great power.

Eventually our imperial moment passed. But the basic vision of the McKinley era–that American power required an active presence overseas, and that our domestic rules were inappropriate for the ruthless nature of global politics–were dominant themes from the Cold War through to the present day.

3. You quote Elihu Root saying that “the Constitution follows the flag—but it doesn’t quite catch up with it.” What did Root mean by this?

The result today is a somewhat tangled skein of doctrine. Constitutional rights generally apply extraterritorially to Americans. Yet only “fundamental” constitutional rights apply in Puerto Rico and some other insular possessions of the United States. (The bizarre result is that the rights of Americans are, as a matter of legal doctrine, more secure when the government acts in Japan than in Puerto Rico.) Aliens abroad can be and often are subject to American statutes and regulations, even if they fully comply with their local law. Yet these aliens “have no cognizable constitutional rights.”
—From Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law
Reprinted by permission of the publisher, Oxford University Press. Copyright © 2009 Oxford University Press, Inc.

Then-Secretary of War Root tossed off this line in response to a question about what the Supreme Court had actually decided about the new American colonies. Americans of the time followed the litigation over the colonies very closely–crowds formed in the streets when Supreme Court decisions were handed down, and every newspaper had an opinion about the matter. Among other things, in these cases the Supreme Court declared that only “fundamental” constitutional rights applied in Puerto Rico and the other islands. They were also said to be “foreign in a domestic sense.”

What this all meant was a little hazy, but the upshot was that the islands belonged to the United States, yet were not really part of the United States. There was no right to jury trial, for instance. And perhaps most importantly at the time, tariffs applied to goods shipped from the islands to the mainland, just as if they were still Spanish colonies. This approach by the Supreme Court was widely seen as politically motivated; as another famous quip of the time went, “no matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”

4. Most of your discussion goes to the question of whether the protections inherent in the Bill of Rights can be invoked outside of the United States by persons who come into conflict with U.S. authority. But isn’t there another way of viewing the question—namely, whether the U.S. Government, acting outside of the territory of the United States, is entitled to use powers the Constitution does not give it?

The answer to this question turns on the accuracy of the last part–when the United States acts abroad, does it use powers the Constitution never granted? Or does the Constitution give the federal government all the powers it needs on the global stage? There is a tradition of viewing some powers of the federal government as “extra-constitutional,” that is, simply inherent in sovereignty. So whether or not the Constitution says we can do X, if doing X is part of the concept of statehood, then of course we can do X too.

Whether or not you find this kind of logic persuasive–and many legal scholars do not–the powers granted by the Constitution, as opposed to the rights, have never been seen as limited by geography. For instance, the Constitution says the government cannot hand out titles of nobility, and no one has ever seriously claimed that rule could be broken when the President is abroad. Likewise, Barack Obama does not stop being commander in chief when he flies off to Oslo, nor does Congress gain the power to pass bills of attainder simply because it convenes on a cruise ship in international waters. One of the points I stress in Does the Constitution Follow the Flag? is precisely that we assume the Constitution follows the flag (and the executive branch) when it comes to powers, but we have a very different history and analysis when it comes to rights.

5. Today the United States is fielding forces in connection with contingency operations around the globe that—unlike prior conflicts—consist largely of contractors and not uniformed service personnel. What special problems does this raise in connection with federal jurisdiction?

The biggest problem is how to prosecute them when they commit a crime. Thanks to a ruling some fifty years ago by the Supreme Court, civilians cannot be tried via court martial. That generally means they have to be flown back to the States to be tried. (I’m assuming the contractors are Americans–if not, there is no clear constitutional bar to their trial by court martial or military commission in the field.)

Trial at home for crimes committed abroad can be complicated, however. Not all our federal criminal statutes apply to conduct that occurs beyond our borders. So if a contractor in Iraq or Afghanistan commits a crime, that crime may go unpunished simply because the local government cannot or does not want to prosecute, and American officials lack the legal basis to prosecute. In 2000 Congress tried to fix this problem but did not do so fully. In the years since, the use of contractors has of course skyrocketed, making the issue even more urgent today.

6. The United States is proposing, in connection with its counterinsurgency operations in Afghanistan, to establish its own security detentions regime under which potentially thousands of Afghan citizens may be held without the protections of Afghan law and without recourse to Afghan courts, unless U.S. commanders choose to allow that. The Afghan Government has very pointedly refused to authorize this system. But the regime appears to be in the process of implementation nevertheless. What does your study of extraterritorial jurisdiction tell you about this anomalous situation?

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A fundamental principle of sovereignty is that one government cannot arrest and detain someone within the territory of another government unless the territorial government consents. That said, there is a long history of violations of that principle. Parts of Asia in the nineteenth century were carved up into different foreign zones. The U.S. District Court for China was a part of this system. And of course during the occupations of Germany and Japan we operated exactly the sort of police system you describe. In the book I recount the fascinating case of United States v. Tiede, in which a federal judge in 1970s occupied Berlin tries an East German hijacker that many West Germans viewed as a hero.

Relatedly, today you can go through U.S. customs and immigration in Toronto before boarding a plane to New York, even though the entire operation is within the physical borders of Canada. The U.S. Drug Enforcement Agency likewise searches the homes of drug traffickers in Mexico and other foreign nations. This is all part of a process of “offshoring” important security functions of the state.

The Afghan situation you describe is very far-reaching. It is also fluid and still emerging, so it is hard to say whether it falls outside the rough political bounds set by these existing examples. But in light of the history of extraterritoriality, especially with regard to very weak states, it does not sound completely anomalous.

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