Cross-posted at Balkinization UPDATE: Thanks to "Anon" in comments for sending along a link to the engrossed text of the military commissions bill passed by the Senate last week. I really hate to interrupt this great discussion about Kal's even greater book, and hope to get into it myself before week's out. In the meantime, I thought it worth noting that...
Although it is mentioned briefly, Kal's book does not address cyber-territoriality in detail. I take Kal at his word that there will be no sequel. But I think the history and framework Kal provides may be useful in assesssing efforts to manage cyber-territoriality. I should note that I generally agree with Kal that exceptionalist claims that cyberspace has "flattened" the world and undermined...
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...
Picking up on the thread that Tim began and that Peter and David have advanced, I wonder if we might gain some insight by looking at the other incorporation debate that occurred during the twentieth century—the debate over which provisions of the Bill of Rights should be applied to the states through the Fourteenth Amendment. I claim no particular expertise on...
I'd like to pick up on the thread begun by Tim and Peter. Kal's discussion of the Insular Cases follows the traditional understanding that places them in a normatively negative light, as important constitutional facilitators of colonialism and as reflecting the era's racism. Clearly, it was both of those things, though it is worth noting (depressingly) that the anti-imperialism movement...
I want to pick up on Tim Zick's post touching on the normative implications of territoriality. It's clear that intraterritoriality (a nice tag coined by Kal to describe internal territorial variability in law) facilitated exploitation and imperial abuses. Guantanamo amounts to a failed intraterritorial strategy. Those are the obvious cases. I'd be curious where Kal comes out on the closer ones,...
Roger raises an important issue with regard to the landmark 2008 decision in Boumediene v. Bush . Is that case in effect limited to its facts because of the unique qualities of Guantanamo? Or does the logic extend elsewhere? The obvious focus going forward is Bagram Air Base in Afghanistan. Bagram holds many more detainees than does GTMO and, given...
In reading Kal's description of territoriality's ebb and flow, I was particularly interested in the evolution in judicial thinking with regard to constitutional scope or domain. His description of the path from In re Ross, which stated emphatically that the Constitution does not follow the flag, to Reid and Boumediene, which give some extra-territorial force to the Bill of Rights and other constitutional guarantees, is excellent. The evolution has obviously been gradual, even...
Randy Barnett at Volokh Conspiracy mentioned today a new paper, "Anarchy and Development: An Application of the Theory of the Second Best," 2 Law and Development 1, article 4 (2009), by Peter T. Leeson and Claudia R. Wilson. Professor Barnett says he hasn't yet read it, but the abstract looks interesting. It intrigued me enough to download it (it's a...
Great book Kal. Kudos and adulations. I have a question of clarification. One of the interesting things about Raustiala's discussion of the modern application of territoriality is the uniqueness of Guantanamo. He writes, "Guantanamo's unusual legal status is reflect in [its] history, and is underscored by two factors. One is the lack of any status...
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...
Most of the discussion so far has been about the constitutional parts of Kal’s book, which is appropriate given its title. But the part I found most fascinating has nothing to do with the Constitution. In Chapter 4, Kal tries to explain why the United States began aggressively to apply its regulatory statutes extraterritorially after World War II and not...
