Does It Matter Whether the Constitution Follows the Flag?

Thanks to Kal for joining us to discuss his terrific new book.

I’m on board with the premise that international politics goes a long way to explaining the arc of U.S. foreign relations law, including rules relating to territoriality; and Kal is absolutely correct that US law scholars pay too little heed to the global context as an explanation for doctrinal evolutions.  But how does international law enter into the picture?  On that front, Does the Constitution Follow the Flag? may be mostly about the past than about the future.

Take the dramatically expanded level of extraterritorial law enforcement activity nicely documented in the book.  To the extent the courts haven’t found the Constitution to apply to such activity (see Verdugo-Urquidez), the doctrine looks like a reflection and an enabler of US hegemony.  If the DEA wants to break someone’s door down overseas without any procedural protections, the domestic courts won’t stand in the way.  Through this optic, it looks like open season for cops across borders.

But international law is catching up to US-style rights on this score as well as others.  You can find Fourth Amendment-type constraints on state action in the ICCPR (see article 17).  Even if the Constitution doesn’t apply to extraterritorial activity (or to intraterritorial activity for that matter as well, as with the Padilla gambit), human rights law will.

Guantanamo can be told with the same story line.  The last seven years have proved that far from a “legal black hole”, Guantanamo is firmly within law’s orbit.  The US Supreme Court is now on board with that, but it was a trailing indicator on the question.  The rest of the world understood human rights law to apply to the detentions there and effectively acted on that understanding.  Ditto for the CIA’s black sites, which were closed down without any push from the federal bench in the face of international condemnation.  I wonder if the ability of states (and the US in particular) to “jurisdiction shop” won’t be increasingly constrained going forward.

The contrast to the era of true empire is clear.  In the pre-human rights world, the Constitution was the floor, beyond which there was the abyss of sovereign action answerable only to God.  Today, the Constitution can (usually) add a cushion of rights not found in international law, along with a mature system of enforcement, but it’s no longer the only shield against government overreaching.  Increasingly, the Constitution looks like one among many artifacts of the Westphalian system.  In Kal’s terms, as legal difference subsides so should the salience of territory.

(The critique may also apply on the regulatory side of the story.  As effects-based regulation becomes more common on the part of all states – a phenomenon Kal acknowledges –, doesn’t the resulting complexity demand harmonization?  In that case, extraterritoriality will be a mere way station on the road to global regulation.)

The book mentions human rights only once, on the last page.  That may be an appropriate placement, with the story taking off from there.  Regulation at the national level will still matter, but only within the confines of something like the margin of appreciation.  That should lower the stakes on questions of geographical application, or at least push them upstairs.