In association with the International Commission of Jurists

General

28 Jul

  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...

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28 Jul

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...

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28 Jul

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...

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28 Jul

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...

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27 Jul

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...

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27 Jul

I want to join others in congratulating Kal on the publication of his outstanding book.  I also want to thank the OJ contributors for inviting me to visit their territory. Issues of spatiality -- place, geography, and territory -- have been largely under-examined in legal scholarship.  This book is an invaluable synthesis and examination of a critical aspect of legal spatiality. One of the...

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27 Jul

Thanks to Kal for joining us to discuss his terrific new book. I’m on board with the premise that international politics goes a long way to explaining the arc of U.S. foreign relations law, including rules relating to territoriality; and Kal is absolutely correct that US law scholars pay too little heed to the global context as an explanation for doctrinal...

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27 Jul

“Does the Constitution Follow the Flag?” is a fascinating book, and one of its great strengths is that it juxtaposes a number of different examples of how law and territory do not align, some of which have been largely forgotten. When most of us think about extraterritoriality, we think of issues like the extraterritorial application of antitrust law, the applicability...

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27 Jul

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...

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26 Jul

Recently, advocates for asylum seekers fleeing severe and state-sanctioned domestic violence in their home countries appeared to score a significant victory. In the case of a woman who requested asylum based on fears she would be murdered by her common-law husband in Mexico, the Department of Homeland Security filed a brief in April (unsealed recently as reported by the...

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