Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law

A century ago the presidential race between Republican William McKinley and Democrat William Jennings Bryan was consumed by the question of whether “the Constitution follows the flag.” The United States had just acquired several overseas colonies in the wake of the Spanish-American War. The Democratic Party platform of 1900 declared that “We hold that the Constitution follows the flag, and denounce the doctrine that [the federal government] can exercise lawful authority beyond it or in violation of it.” In opposition were those who believed that normal legal rights and rules did not apply fully—or at all—to the new American possessions. For these individuals, sovereign borders did not line up with constitutional borders.

At stake in this debate was the ability of the U.S. to participate in an age of great empires. As proponents of empire knew, if the Constitution indeed followed the flag any American empire was going to remain very small. At stake as well was the self-conception of the nation as a constitutional republic. Was the U.S. like other great powers of the day, all of whom had embraced a vigorous imperialism? Or did the Constitution provide powerful limits that could not be circumvented simply by (re)drawing lines on maps and declaring some areas beyond the reach of the Bill of Rights?

Does the Constitution Follow the Flag? is a book about the way that geography shapes legal rules and understandings—and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of American law. Do some U.S. laws stop at the water’s edge? If not, do they operate differently beyond American territory? As the election of 1900 shows, these debates are not new. But nor are they a musty relic of the imperial past. Today they are central to ongoing battles over the rights of detainees held in Guantanamo and Bagram, as the landmark decision in Boumediene v. Bush made clear. They are also central to the ability of the federal government to regulate foreign cartels, protect investors, and combat air and water pollution. Each of these issues, in short, raises questions of territoriality and extraterritoriality.

Does the Constitution Follow the Flag? has several aims.

The first and most basic aim of my book is to explain why territoriality is a significant concept and why the American legal system, like other legal systems, has traditionally been presumptively territorial. The Westphalian system of sovereignty is fundamentally premised on territoriality. Yet what is less often recognized is the significance of imperialism and territorial expansion, not only to the development of the modern states system but also to the rules and principles of extraterritoriality. In short, while sovereignty has long been a central concern of international lawyers, I make the case that sovereignty’s twin, territoriality, deserves the same intense scrutiny.

My second aim is to trace, in broad brushstrokes, the evolution of territoriality in American law from the founding era to today. Parts of this fascinating history are well known, such as the extraterritorial application of American antitrust law in the modern era or the infamous decision in Dred Scott. Others, such as the U.S. District Court for China that was created in 1906, or the late 19th century “Guano Islands Act,” are much less well known. Regardless, until now these parts have not been put together and treated as an interconnected, if occasionally wide-ranging, narrative.

My third aim is to advance several more specific claims about this legal evolution. First, the central concept of extraterritoriality has shown surprising continuity in its purpose even as its form has changed dramatically. Extraterritoriality meant very different things to nineteenth-century lawyers than it does to contemporary lawyers. But the primary function of extraterritoriality has remained, at a fundamental level, the same. That function, I argue, is to manage and minimize the legal differences entrenched by Westphalian sovereignty. Second, extraterritoriality is paralleled by what I call intraterritoriality. Just as extraterritoriality has long been a way to conceptually redraw maps, to redefine what is inside and outside the scope of a sovereign’s law, intraterritoriality has served to delineate differences within national borders, particularly as the U.S. grew in size and power. Intraterritorial doctrines, such as the claim that some constitutional rights do not apply in some U.S. territory (such as Indian country or federal territories), reflect the tension between America’s constitutional traditions and its global ambitions.

Throughout this book I pay close attention to the international context, particularly to the changing global role of the U.S. In this sense the book is an example of what political scientists call “2nd image-reversed” analysis: I look carefully at how the international system shaped the content and direction of domestic law. As a weak power, the U.S. showed considerable solicitude for traditional Westphalian principles. As a superpower, it was far more willing to bend and even break established doctrine in the pursuit of its national interest. This transformation, and related shifts in international politics and economics, helped to shape the kinds of territorial claims that were made, even if the fundamental aim of these claims—to manage and sometimes manipulate legal differences—remained broadly constant.

In sum, Does the Constitution Follow the Flag? offers a framework that connects a disparate set of territorial doctrines over time and explores their purpose and function. My overarching goal is to make sense of a world in which the United States applies its law to some actors in some places while denying it to other actors in other places.

I certainly don’t view this book as the last word on territoriality, and indeed there are many subsidiary topics that I could have–and probably should have–addressed. I nonetheless hope I have written an account that brings clarity to the topic, that links its political and legal aspects in an interdisciplinary manner, and that helps to vividly and engagingly ground current debates in an historical context. I am very grateful to the Opinio Juris team for agreeing to host this session of the book club. They have put together a terrific team of commentators and I am sure we will find much to debate and dissect. I look forward to hearing from all of the participants in the days to come.