Preliminary thoughts on the posts

by Kal Raustiala

I’m glad (though by no means surprised) to see so many thoughtful comments about Does the Constitution Follow the Flag? In this post I will respond briefly to a few of the points made in the hopes of clarifying the issues at stake. Let me take them in reverse order.

David Golove makes a very interesting argument about how contempories understood territorial questions in the 18th and 19th centuries. He claims that territory was not actually the key feature, and instead that there were two forms of jurisdiction at play, international and municipal. When the former was operative, the Constitution necessarily had no applicability. At one level I do not challenge David’s position. Indeed, my book often supports exactly this view. In discussing the Supreme Court’s decision regarding the Civil War era occupation of New Orleans, for example, I write that:

The Supreme Court contended that…Southern states were in fact conquered territory and therefore subject to the laws of war and the international law of occupation, not American law. International law displaced constitutional law.

Yet I do not think this is the primary, or in David’s words, “fundamental” approach that courts of the time took. Indeed, to me, reading the caselaw illustrates that there is far more discussion of territoriality than of municipal vs. international jurisdiction. Take the U.S. District Court for China. In U.S. v. Furbush, an early and influential decision, the court stated clearly that Furbush’s claim that the Sixth Amendment applied to his trial in China was mistaken because of a “fundamental fallacy.” What was this fallacy? His assumption that “the Federal Constitution has been extended to China.” If the core issues was one of differing conceptions of jurisdiction, the language of extending—which echoes that of incorporation in the Insular Cases (as well as the entire “does the Constitution follow the flag?” frame of the era), and directly references the Supreme Court’s earlier and very important decision in In Re Ross, would be very odd. The opinion as a whole resonates with a territorial vision—and there are many other opinions like it.

Now, at one level, this may be a matter of nomenclature. Perhaps David is right that these two fundamental jurisdictional conceptions were at play in this era, and were the key to understanding the jurisprudence, but for some reason they were shrouded and manifested in language like “the Constitution can have no operation in another country.” This language is somewhat ambiguous, but perhaps could be read to have a hidden addendum (“because the Federal Government in this case is exercising international, not municipal, jurisdiction.”) But that is not what the courts actually said. Instead, they tended much more to speak in terms of territoriality. In short, I think David identifies something important, but I am not persuaded that territoriality was not the master concept at play.

That said, I completely agree with David that the displacing role of international law was important, and moreover sometimes that displacing role was critical, as the occupation of the postbellum South revealed. I also completely agree that a proper reading of history shows that international law was a crucial part of early American jurisprudence. And I agree that both of these features point toward a central role for international law in filling gaps when American law was deemed to not apply extraterritorially, as in Guantanamo or Bagram.

In his post Tim Zick stresses the racial, and often avowedly racist, element in many seemingly territorial doctrines. He is certainly right to highlight the “dark side of territoriality,” and there is no question that territorial principles were often used to deny rights to those who were weak and different. I don’t think I portray these episodes as benign, but nonetheless I take his comment as a friendly reminder to all of us that this is a central part of American history. The Democratic Party platform I cited in my opening post, for example, stated emphatically that “the Filipinos cannot be citizens without endangering our civilization.” The Filipinos were routinely derided by McKinley and others as ignorant, simple, and superstitious: simply incapable of self-government.

In fact, the same was said a century earlier about Louisiana. The revered Thomas Jefferson thought that the local Creoles were such a childlike people “that our principles of popular government are utterly beyond their comprehension.” (This did not stop him from buying Louisian, obviously). These attitudes were endemic to the time, and seem shocking to our ears, but of course were central to the imperial era. Imperialists in the US and Europe gave many reasons for empire, but a recurrent (if self-serving) theme was the felt need to civilize those deemed savage. Along the way, the savage would almost always be ruled as subjects, not citizens.

Peter Spiro asks if my book has much to say to the future, now that international law has filled so much jurisprudential space. “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. “ I’d be very interested in a side debate between David and Peter on this issue of the role of international law in the 19th century. David sees it as central, and legal black hole thinking as a perversion of the past. Peter seems to see such thinking as instead a throwback to more nakedly lawless era, one we have increasingly escaped.

Finally, Bill Dodge makes two core points in his introductory post. His first, that there are really 3 phenomena at play in the book, is largely right in my view. In the introduction, I distinguish between “policing,” “protecting,” and “projecting” as three ways American can operate extraterritoriality. I probably should have emphasized this trope more throughout the book. That said, at heart I am a lumper rather than a splitter, and I see the same features at play in each, at least at the most abstract level. The problem with my view, as Bill insightfully points out, is that it is necessarily true in a world of diverse states and legal systems. But since that is our world, I thought it important to highlight something that may seem obvious in retrospect but, by my lights, had not really been emphasized enough in prior scholarship: that extraterritoriality was not a violation of sovereignty as much as a necessary feature of sovereignty—something inherent in the Westphalian system.

Bill’s second point builds on his own expertise on statutory extraterritoriality, and I certainly defer to him on the particulars here. He thinks I overstate the motivating role of leveling the playing field for American firms, and slight both the role of consumers and the ways that extraterritorial application sometimes harmed American firms, as in the Foreign Corrupt Practices Act. I agree that leveling was not the only factor. I also agree that the FCPA is one of the things I should have, but did not, discuss. Perhaps if I had I would have emphasized things differently.

That said, I still think my basic claim that leveling was central and even dominant is probably right. Nonetheless, I recognize that there is more work to be done in this area on the motivations behind not only the actions of federal courts but also of federal agencies. My former classmate Tonya Putnam, now teaching political science at Columbia, has a major project on postwar extraterritorial cases and is trying to unlock the keys to when courts choose to apply US law extraterritoriality and when they do not. Others, such as Bill himself, have done the same. My focus in Does the Constitution Follow the Flag? was more on the origins of the practice–why did the US embrace and dramatically extend extraterritorial application when it did?—and its connections to earlier but forgotten practices, such as consular jurisdiction.

Again, these are all excellent comments and I very much appreciate the food for thought. I certainly glossed over many things in my effort to compress so much into one not-very-long book. That said, I’m not planning a second volume, but it seems quite clear to me that there is much more to be debated and dissected here. Were I a law review comment writer or aspiring professor, I’d see opportunity.

(I see now that Bill has another posting, but I will take that up next time).

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