Ought the Constitution Follow the Flag?

Ought the Constitution Follow the Flag?

Reading over the last few posts, it seems very clear that there is an array of extremely interesting angles to the question of whether the Constitution ought to follow the flag in all instances. Tim, Peter, David, and Bill all have raised great questions about the normative dimensions of extraterritoriality and intraterritoriality. In my book I generally eschewed this dimension, though in the conclusion I discuss it a tiny bit. (I have also written about the GTMO context in “The Geography of Justice,” Fordham Law Review 2005). But I can’t say I have given this topic nearly enough thought. Nonetheless, this is a good opportunity to ponder some of these questions.

As to the connection between 14th Amendment and the Insular Cases, Christina Burnett  has written what I think is a pretty definitive treatment in the current issue of the Columbia Law Review. She sees many parallels, and also takes issue along the way with the conventional understanding of the Insular Cases. Since Christina is probably the world’s leading expert on the Insular Cases, I think her views are worth careful attention.

The second broad issue raised in the posts concerns whether it is perhaps wrong to view the denial of incorporation—that is, the denial of the full Bill of Rights—as a wholly bad thing. Perhaps solicitude for local custom and differing norms requires that we sometimes not extend the Bill of Rights to all American territory. There are cases concerning US possessions in the Pacific that to some degree consider this issue. In King v. Andrus, for example, the district court carefully considered indigenous cultural practices in Samoa in deciding whether it would be impractical to apply the right to a jury trial. (It was not impractical, the court decided).

Putting aside the details of King, at first blush I see some merit to the multiculturalist view. But, I think much turns on how the particular territory was acquired. If a territory is conquered, or acquired from another conqueror (e.g., occupied Berlin, the Philippines) then it seems more appropriate to weigh local norms and practices. The people in question did not consent to be governed. But if a territory willingly joins the union (Texas), less so. It is arguably part of the bargain of membership (this is basically the EU practice, for example). This logic, applied for example to Indian country, would suggest substantial deference to local custom or preference, and indeed that is what we see in, say, the 1st Amendment context. That said, deference to local custom can quickly morph into paternalistic and self-serving denial of justice. It is not obvious how we police this.

Status of Forces Agreements raise different issues. Off the top of my head I don’t find SOFAs to be problematic in the abstract, though in extreme cases (where foreign troops are completely outside any local control whatsoever, as was the case in Iraq) they look like naked exercises of power. At the same time, though, I don’t think acceptance of SOFAs supports a more general norm, as Peter alludes to, of a separate legal system for foreigner-on-foreigner crime. I think if one Nigerian assaults another on the streets of New York it is entirely appropriate to arrest and try him/her via the normal rules of American law.

Why then is the same scenario, with two American soldiers, different? Only because it is a necessary part of the security bargain in places like Japan or Germany, and arguably in the interests of both nations, as well as neighbor nations. This is maybe pure foreign affairs exceptionalism, but I think the reality is absent SOFAs we would see a much smaller American military presence abroad, and that in turn would, in many parts of the world, have seriously detrimental effects on regional security. I don’t see that countervailing factor in ordinary crimes by aliens against aliens. (Also, foreign stationed troops live far more separate lives than do ordinary migrants, so the spillover effects of such a rule are smaller too).

As these sketchy comments suggest, there is a lot more thinking to do here.

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Marko Milanovic
Marko Milanovic

Prof. Raustiala, If I may interject into the discussion with two brief comments: First, have you considered in your book the parallels between the questions surrounding the extraterritorial application of the US Constitution, and the Bill of Rights specifically, and those surrounding the extraterritorial application of human rights treaties, e.g. the ECHR. Though the case law on the latter is itself quite convoluted and contradictory, and some basic concepts are contested, there is still a trend there towards applying HR treaties in extraterritorial situations, particularly when a state exercises effective overall control of a area outside its territory (see, e.g. Loizidou re Turkey and Northern Cyprus before the European Court, and the Wall AO and Congo v. Uganda before the ICJ). In this line of cases, which is in my view fundamentally correct, it is the state’s control over a territory and its inhabitants as a matter of fact, irrespective of legal entitlement, that warrants the extraterritorial application of HR treaties. Wouldn’t you say that Boumediene and its notion of de facto sovereignty have taken US constitutional law in the same direction? Second, I wonder whether you’d have some comments on the relevance of citizenship on the extraterritorial application of… Read more »

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Marko Milanovic
Marko Milanovic

Kal, Thanks for the response. Yes, citizenship most certainly does play a central part in US jurisprudence and thinking generally about the extraterritorial applicability of the Constitution – the best example is probably Justice Jackson’s opinion for the Court in Eisentrager, with the references to Paul, the Romans and what have you. But, of course, just saying that citizenship mattered a great deal at some point in history doesn’t entail that it should matter today. So, purely as a normative matter – do you personally think that citizenship should matter or not, e.g. in regard of extending habeas corpus to overseas detainees? Anyway, as for your reference to personal jurisdiction – assuming (perhaps wrongly) that you referring to international law notions, I am personally not sure that the extraterritorial applicability of the Constitution did ever depend in reality, or should so depend, on the international legal doctrine of state (prescriptive and enforcement) jurisdiction, which delimits the municipal legal orders of states. It is certainly true, for example, that a state has the right to legislate for its nationals, i.e. to specify what their constitutional rights are. But it has the equal right to legislate for its nationals when they are… Read more »

Howard Gilbert
Howard Gilbert

During WWII, if an American GI in England committed a crime, he was subject to US Court Martial and not local British law. More to the point, if members of the armed forces get into trouble inside the US, they are subject to military justice rather than State civilian justice. If an enemy solider commits a war crime like rape, he is also tried in a military court and not the local civilian system. SOFA is not the naked exercise of power. It is simply a formal recognition that wherever military forces are deployed, they are subject to military justice and not local civilian jurisdiction. Marko: Munaf does not assert that US citizens held overseas by US military forces have a constitutional right to habeas. Read the first sentence of the holding: “The habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command.” This is a ruling about the scope of the statutory language and not about any constitutional issue. Boumediene never uses the term “right” to refer to an individual’s access to habeas. The decision consistently refers to the term used in the Constitution, “privilege”. The key holding is: “Petitioners have… Read more »

Aurel Sari
Aurel Sari

At the risk of slightly hijacking the post, I would like to come in with a comment on SOFAs. Peter Spiro earlier posed the question whether SOFAs are “normatively problematic”, noting that “there are obvious pathologies to the arrangements in Iraq”. These are interesting questions, but they need to be considered in context. The jurisdictional arrangements found in SOFAs are the product of past practice and present political bargaining. Several distinct jurisdictional regimes have emerged since the end of the Second World War to govern the legal position of foreign armed forces present at the invitation of the territorial sovereign in different operational contexts. The two most famous and well-established of these regimes are based on the relevant provisions of the NATO SOFA of 1951 and the UN Model SOFA of 1991. Other regimes can be identified as well, such as the frequent conferral of immunities equivalent to those granted to technical and administrative staff under the Vienna Convention on Diplomatic Relations. There is sufficient evidence to characterise some of these regimes as reflecting or codifying (as the case may be) rules of customary international law. For instance, there is little difficulty in showing that the right of sending States… Read more »