The Territorial Reach of the Constitution
Just to get the discussion going, I wanted to highlight the Court’s analysis in Section IV of the Boumediene decision on the territorial reach of the Constitution. The precise question presented is the geographic question of whether the constitutional guarantee of the writ of habeas applies to detainees at Guantanamo Bay.
Before discussing the case, it is worth highlighting the different models that have been used to address the territorial reach of the Constitution. As Gerald Neuman has noted in his important article “Whose Constitution?” in the 1991 Yale Law Journal, there are four major models: universalism, membership, territorial, and a balancing approach of global due process. Here is how Neuman summarizes the four models:
Universalist approaches require that constitutional provisions that create rights with no express limitations as to the persons or places covered should be interpreted as applicable to every person and at every place. The precise commands of the provisions, especially of those creating rights subject to balancing tests, may vary from place to place, but one can never simply dismiss the provisions as inapplicable….
Social contract rhetoric has played a significant role in American constitutionalism. Social contract theory seeks to legitimate government through the idea of an actual or hypothetical agreement embodying the consent of the governed who have established the state and empowered it to govern. Some accounts of social contract theory identify a limited class of “members” as the proper beneficiaries of the contract. The beneficiaries have rights based in the contract; nonbeneficiaries are relegated to whatever rights they may have independent of the contract….
Under a strictly territorial model, the Constitution constrains the United States government only when it acts within the borders of the United States. Strict territoriality prevailed as dogma for most of American constitutional history, until its overthrow in Reid v. Covert….
This emphasis on the countervailing necessities of overseas action may suggest that all of these models can be collapsed into a brand of harmless universalism: recognize constitutional rights as potentially applicable worldwide, and then balance them away. One might engage in ad hoc balancing in the individual case, or balance more categorically; the balancing process may be intrusive or highly deferential. The concurrences of Justices Frankfurter and Harlan in Reid v. Covert offer an example of this approach as regards citizens’ rights abroad, and Justice Kennedy in Verdugo-Urquidez located himself within the tradition of Harlan’s concurring opinion. This approach suggests that, ultimately, extraterritorial constitutional rights boil down to a single right: the right to “global due process.”
So where does Boumediene fall among those models? It is difficult to say, because in some respects the question is limited by the Court’s determination that Guantanamo Bay effectively is within the territory of the United States. But there definitely is some language in the opinion that seems to suggest a much broader approach than simple territoriality. Here are a few key excerpts:
We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory…. [F]or purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. The Court has discussed the issue of the Constitution’s extraterritorial application on many occasions. These decisions undermine the Government’s argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends. (pp. 23-25)….
In its principal brief in Eisentrager, the Government advocated a bright-line test for determining the scope of the writ, similar to the one it advocates in these cases. Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. That the Court devoted a significant portion of Part II to a discussion of practical barriers to the running of the writ suggests that the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it. Even if we assume the Eisentrager Court considered the United States’ lack of formal legal sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at least to some extent, the political branches’ control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there…. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” (pp. 33-35)….
It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. (p. 41).
My first blush reading of the case is that the Court is adopting a rule that the Constitution applies abroad provided the United States exercises de facto sovereignty. I’m not sure if that is closer to a territorial model, the balancing global due process model, or something in between. At a minimum it appears that the Court is rejecting the broad universalist and the narrow membership models.