20 Apr Andrew Kent on the Case Against a Global Constitution
Kent “challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support.” He concludes that “as a textual and historical matter, noncitizens are to be protected through diplomacy, enforcement of international law by the U.S. government, and nonconstitutional policy choices of the political branches.” Kent is quite ambitious as a young scholar in that he takes on influential “globalist” academics such as Louis Henkin, Gerald Neuman, Harold Koh, George Fletcher, Jordan Paust, Jules Lobel, David Cole, Kal Raustiala and Stephen Saltzburg.
The last half of the article is particularly important and for me, raises three interesting points. First, he criticizes the globalists’ constitutional disintegration, arguing that the Bill of Rights must be read as a whole. He notes that globalists highlight a few Amendments–the Fourth and Fifth–and ignore others–such as the Second and Third. He suggests that by relying on general, unrestricted language in some Amendments to support their applicability abroad, globalists unfairly “stack the deck in favor of globalism by simply ignoring the amendments that cut most strongly against” them.
Second, Kent makes quite interesting textual and structural arguments for the territorial limitation of habeas corpus. He notes that the Suspension Clause authorizes suspension of the writ only in cases of rebellion and invasion, and “if the only two permissible triggers for suspension are internal events, it follows that the writ cannot be suspended based on purely external threats.” He then argues that there are structural problems with the global enforcement of habeas corpus. “Assuming that the writ should not be available anywhere that the political branches could not … temporarily suspend it, the writ should then only be available in territory over which the United States exercise such pervasive and persistent sovereignty that a hostile military incursion could be fairly described as an ‘invasion’ … or an armed insurrection could fairly be described as a ‘rebellion’ ….” Essentially he is arguing that the courts would usurp political branch authority if they extend the writ abroad for situations in which the political branches cannot constitutionally suspend it.
Finally, Kent examines the Quasi-War with France and Jackson’s incursion into Spanish-owned Florida as examples of early actions with regard to the protection of aliens abroad. These case studies occasioned early debates on the constitutional rights of aliens. He concludes that “the viability of globalist originalism is called into question by this evidence from the Quasi-War and Seminole War.”
But Kent notes that simply because the Constitution does not govern extraterritorial uses of coercive force, it does not mean that the Founders considered such actions extra-legal. The law of nations constrained the U.S. government’s actions abroad.
If you will recall this exchange between the Solicitor General Paul Clement and Justice Souter in the recent oral argument in Hamdan v. Rumsfeld, you understand the gravity of Kent’s position. The modern application of Kent’s argument is that if the writ cannot be suspended, it does not exist. So if the war on terror is not an invasion or rebellion in the constitutional sense, then alien detainees held abroad cannot invoke habeas corpus. They do not exist in a legal black hole, but under this reading of the Constitution, it is international law, not constitutional protections, that constrains the United States.
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