The Origins of the Non-Extraterritoriality of the Bill of Rights

Kal deserves a hearty congratulations on the publication of Does the Constitution Follow the Flag. The book is really a tour de force. Kal offers a sweeping treatment of over two centuries of legal thought respecting territoriality in its multiple manifestations; situates his discussion in wider political, economic, and intellectual developments during this same period; brings out the subtle internal linkages between the various legal doctrines he traces; and offers a larger framework for thinking about the issues going forward. Despite its technical subject matter, moreover, the book is highly readable. Nevertheless, because praising a book quickly becomes boring (for everyone other than the author!), I will try to bring out some differences in our assessments of at least part of the historical materials he discusses – in particular, those which concern the question of the extraterritorial application of the Bill of Rights.

One of Kal’s core claims is about the fundamentality of territoriality in the development of U.S. law, including with respect to the application of the Bill of Rights to aliens overseas. The importance and topicality of this question will obviously not be lost on anyone. Kal follows conventional contemporary jurisprudence in thinking that territoriality provides the key to understanding historical ideas about the scope of application of the Bill of Rights. Because under the Westphalian model of sovereignty, accepted from the Founding through the 19th Century, law was strictly territorial, it followed, in Kal’s account, that the Constitution, like the laws of the United States more generally, applied only in the sovereign territory of the United States.

Here is where I part company with Kal. I do not believe that in the 18th and 19th centuries territoriality was the fundamental concept at play. It is true that the Bill of Rights (at least with respect to aliens) was understood not to apply outside U.S. territory. In my view, however, the explanation for this understanding is found in more basic ideas about the appropriate division of labor between international law (the law of nations) and constitutional law, the two principal forms of public law. During that period, states were understood to exercise two different types of jurisdiction, municipal jurisdiction and what was then called “national” jurisdiction (but which today would better be called international law jurisdiction). When the United States government was exercising its municipal jurisdiction, it was required to act in accordance with all of the restrictions found in the Constitution, including, in particular, the Bill of Rights, which was part of the municipal law of the United States. When it was exercising its law of nations jurisdiction, however, the municipal law, including the Bill of Rights, was irrelevant. Its actions were to be guided and restrained only by the applicable principles of international law.

Now, this understanding was not based, at least in theory, on a desire to permit the United States to disregard fundamental moral constraints on its conduct, although by the end of the 19th Century when the Ross and Insular Cases, which Kal discusses, were decided, it may have appeared that way. Rather, it was based on the view that the law of nations supplied the appropriate constraints and that the Bill of Rights, which was not conceived or designed to deal with the kinds of situations that were governed by the law of nations, did not. Perhaps, this is most evident in the context of war. The Bill of Rights did not apply to the treatment of enemies, whether they were found inside or outside the territory of the United States. This was not because the United States rejected the application of fundamental constraints to war measures, but because war measures were exercises of law of nations jurisdiction. It was therefore the laws of war, not the Bill of Rights, that supplied the appropriate limiting principles. Here is where the non-extraterritoriality of the Bill of Rights re-enters the picture. The underlying legal theory did not endow territory with some mystical significance. Instead, when the U.S. government exercised jurisdiction outside the territory of the United States, it was necessarily exercising its international law jurisdiction, not its municipal jurisdiction. Hence, the law of nations, not the Bill of Rights, governed.

Now, there are several reasons why this historical exegesis may be important. Let me suggest three.

First, it helps dissolve many of the puzzles and apparent inconsistencies in the development of the law that Kal wrestles with in the first few chapters in the book. If territory was not the fundamental category, it is not surprising that territory did not always provide an adequate explanation for developing doctrine.

Second, it reveals the fundamental, and principled role, that international law played in U.S. constitutional jurisprudence during the first century and more of U.S. constitutional history.

Third, it provides a helpful alternative account for why historically the Bill of Rights was not understood to apply extraterritorially. It was not, as is often assumed today, that exercises of foreign affairs powers were simply not subject to legal restraint in favor of fundamental rights. Instead, it was that those restraints were properly found in a related body of public law principles designed to fit the contexts in which foreign affairs powers were exercised. If, in view of contemporary developments, international law no longer plausibly plays this role for the United States, then it certainly makes sense to revisit the extraterritoriality of the Bill of Rights question. Indeed, such an approach arguably would be compelled by fidelity to our constitutional origins and history. I suspect that something like this intuition underlies Boumediene’s (still tentative) openness, despite the relevant doctrinal history that Kal traces, to applying some constitutional rights to non-citizens outside of the United States.