New Article on Reid v. Covert, and My Question re Extraterritoriality and the Constitution

by Kenneth Anderson

Over at Lawfare, I’ve flagged a fine new article in the Military Law Review, “The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial,” by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to jagcnet.army.mil.) The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to “camp followers.”  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law.

Let me add a comment that goes far afield of Captain Warren’s article, but one raised in my mind by the detailed discussion she offers of the “murdering wives case” in its own context and time.  (I don’t want to suggest that my discussion reflects her views in that article, so I’ve decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context – one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ – answer, yes. But, if that’s Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group – is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can’t be lethally targeted in the way that a non-citizen lawful target could be? (more…)

Thanks to all the Book Club participants

by Kal Raustiala

I want to give my sincere thanks to all the participants in the symposium on Does the Constitution Follow the Flag? Many terrific points, questions, and critiques were raised (made?) this week, and I certainly found it a fascinating discussion. My book is an attempt to synthesize and reframe a wide range of issues related to territoriality, and in so doing I necessarily skimmed over, or ignored outright, numerous subsidiary topics of importance. Luckily many of these arose in our discussion this week. Sovereignty, as I note in the book, is the subject of yards of shelf space in any good law library. The literature on territoriality is tiny in comparison, but as this week showed there is so much more to be studied and debated.

Thanks again to the OJ team for inviting me to do this, and to the guest bloggers–David Golove, Tim Zick, and Bill Dodge–for their time and insight.

Structuralism and Constitutional Limits on the Extraterritorial Exercise of Power

by Roger Alford

Raustiala’s book is about the scope of constitutional protections applied abroad. I did not find much in the book addressing whether the Constitution imposes limits on the extraterritorial exercise of federal power. Why is that?

We have a robust and well-developed Interstate Commerce Clause jurisprudence, but we have precious little guidance as to the scope or even theory of the Foreign Commerce Clause. Can we say that there are constitutional limitations on the exercise of legislative authority outside of our borders based on the Foreign Commerce Clause? I would think that just as the Interstate Commerce Clause has limitations based on the traditional powers of the several states, that the Foreign Commerce Clause imposes limitations on the power of the federal government to act abroad out of respect for the traditional powers of other nations to regulate conduct within their borders.

The same goes for executive power. If one of the core theories of executive power–as articulated in Curtiss-Wright–is that executive power inheres in fundamental notions of national sovereignty, then wouldn’t that theory also incorporate an understanding of limitations on executive power exercised abroad based on the relationship of our sovereignty and the sovereignty of other nations?

Put simply, why are questions of constitutional structuralism always treated as vertical questions vis-à-vis the several states, or as horizontal questions vis-à-vis the federal branches, but rarely if ever as horizontal questions vis-à-vis other nations? I don’t have a theory as to how this would play out, I’m just surprised that it is never really discussed.

Cyber-Territoriality

by Tim Zick

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 territorial sovereignty are overstated (pp. 8-9).  In their book, Who Controls the Internet?, Jack Goldsmith and Tim Wu present a compelling argument that geography and territory remain potent organizational and regulatory markers, even in the digital era. 

It was recently reported that the U.S. is creating a new cybercommand within the Pentagon to protect against cyberattacks and perhaps to plan offensive operations abroad.  Officials have encountered some early complications relating to privacy and defense.  As Duncan Hollis has observed, the initiative raises a host of legal and regulatory issues.  But the territorial concerns are more germane to the subject of Kal’s book.  As reported in the New York Times

The Pentagon is increasingly worried about the diplomatic ramifications of being forced to use the computer networks of many other nations while carrying out digital missions — the computer equivalent of the Vietnam War’s spilling over the Cambodian border in the 1960s. To battle Russian hackers, for example, it might be necessary to act through the virtual cyberterritory of Britain or Germany or any country where the attack was routed.

Officials are concerned that they may need to request and receive permission to access foreign computer networks in “cyberterritories” abroad.  General James E. Cartwright, the vice chairman of the Joint Chiefs of Staff, is quoted as saying:  “How do you understand sovereignty in the cyberdomain? It doesn’t tend to pay a lot of attention to geographic boundaries.”

Putting aside what may be the fundamental territorial misunderstanding in the quote, I wonder what the evolution of territoriality suggests with regard to this national security initiative.  Kal’s book details the various extraterritorial options.  Conquering and controlling “cyberterritories” is obviously out of the question.  But assuming soverign borders are still operative in this context, Kal’s book suggests several other options.  Will or should the U.S. (a) simply assert extra-territorial authority, on the trans-boundary effects rationale; (b) negotiate in advance to establish new international rules regarding cyber-entry and search; or (c) pursue more informal channels of resolving these territorial difficulties?  Does the study of territoriality suggest a likely or perhaps a preferable solution? 

Officials involved in this activity would remain on U.S.soil, and would thus not need the sort of protective bubble SOFAs provide.  But in the event agents might travel to any of the territories searched, I wonder if some comparable protections might be needed.      

In terms of Fourth Amendment and other constitutional rights that might be implicated by the cybercommand’s actions abroad, I assume Verdugo precludes granting any constitutional relief to foreign nationals (at least those with no connection to the U.S.).  Contrary, perhaps, to my prior post, which was critical of the Court’s halting development of the doctrine of constitutional scope, perhaps this example suggests that Justice Kennedy’s functionalism is forward-looking and appropriate.  It seems highly impracticable to provide warrant or other Fourth Amendment protections in this context.

Perhaps, though, the old territorial models and frameworks will need to be revised or supplanted to account for the unique problems associated with “cyber-territories.”

Ought the Constitution Follow the Flag?

by Kal Raustiala

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.

Extraterritoriality and the Other Incorporation Debate

by William S. Dodge

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 that subject, but my recollection is that Justice Black thought the whole package should be applied wholesale, while Justice Harlan would have proceed provision by provision and applied only those that were most fundamental. If one compares Black’s and Harlan’s opinions in Reid, the parallels are obvious.

Justice Kennedy picked up Harlan’s position in Verdugo and essentially repeats it in Boumediene. Under this approach, certain rights like due process may apply everywhere the government acts (though I suppose what process is due might well vary, just as it does domestically), while others that are seen more as particularities of American law (e.g. the warrant requirement) are not.

In the domestic incorporation debate, the Supreme Court did proceed provision by provision (Harlan’s approach), but ended up incorporating almost all of the Bill of Rights (Black’s result). My memory is that only indictment by a grand jury and the right to a civil jury trial have not been applied to the states. I am not suggesting that the result will be or should be the same in the international context. Differences in legal culture may mean that what would be considered fundamental within the United States (a jury in criminal cases) might not be considered fundamental outside it (in Puerto Rico). But the basic question—is the right sufficient fundamental—may be the same.

But by what metric do we judge that question? Do we look to the legal traditions of other nations to find common ground, or is it up to the intuitions of the justices of the Supreme Court? Judging from Boumediene, the answer would seem to be the latter. There is perhaps no right more fundamental in Anglo-American law than habeas corpus (it was one of the few written into the original Constitution), but I believe it is largely unknown outside legal systems descended from England’s.

More on Normative Puzzles

by David Golove

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 was itself, to a considerable extent, infused with (and indeed propelled by) racism. At least since Eisentrager and Reid, however, much of the focus of criticism has been on the Court’s willingness to apply the Bill of Rights only partially (on a kind of natural law theory) to the insular territories. Why should non-white persons be entitled only to a lesser bundle of constitutional rights? Yet, as Peter points out, the main impact, at least as I understand it, of the Court’s ruling about the Bill of Rights was that the jury trial right did not apply in Puerto Rico and the other insular possessions, and that ruling seems at least plausible, and perhaps justified normatively, in view of the different (civil law) traditions that predated the U.S. conquests. So, my question is, did the Court’s failure to find the Bill of Rights applicable in full actually facilitate violations of basic rights in the territories, and would overruling <em>Downes </em>and its progeny in this respect be a significant improvement from a human rights perspective? My intuition is that the Bill of Rights ruling was not the normatively most problematic aspect of <em>Downes</em>. One might point, alternatively, to the (constitutional) economic implications of “non-incorporation” as more crucial, but, here again, it is not clear, at least to me, whether non-incorporation was more a privilege than a burden on the citizens of the territories. A final possibility is that what was really crucial was the understanding that the insular possessions were not on even the slow track to statehood and that their citizens, therefore, had no expectation of exercising political rights in the United States. In this respect, the decisions marked a great divergence from prior understandings during the westward expansion, and it opened the possibility that the United States could hold these territories as colonies in perpetuity. That sounds pretty bad, but even here, one might point out that incorporation might have been worse. Consider the fact that Puerto Rico still has not opted for statehood, and the Philippines presumably prefers the fact that it achieved independence rather than unbreakable membership in the U.S. political system. In any case, my point is that I’m really puzzled by the normative issue. I’m hoping Kal can enlighten us on this point? . . . .

Normative Puzzles of Intra- and Extraterritoriality

by Peter Spiro

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, historical and contemporary, and what the metrics might be.  Were the consular courts a bad thing, associated as they were with power projection and not affording defendants full constitutional protections?  What would have been the alternative?  Are SOFAs normatively problematic?  Kal notes that the Non-Aligned Movement has condemned SOFAs, and there are obvious pathologies to the arrangements in Iraq.  But with NATO partners and Japan?

I wonder if they might be defended on a self-determination rationale.  If an American commits a crime against another American on foreign soil, why necessarily should the territorial sovereign be concerned, and why shouldn’t the US be allowed to resolve the matter according to its own customs?  A contemporary twist on this is the debate over the application of shari’a law within Muslim communities in Europe; there are shari’a courts now operating in the UK, for example.  I’m not sure where I come out on that question, but the analogy puts the question in another perspective.

(As an aside, one explanation for the shift from Ross to Reid is simple expediency.  In the 1890s, it would have been tough to bring everyone home to trial at the same time that it would have been pretty tough to rouse a jury of peers in Japan.  By the late 1950s, either would have been practical.)

With respect to intraterritoriality there may also be some close questions.  Not applying the jury trial right to Puerto Rico has itself been justified on a self-determination basis, by way of insulating the territory’s civil law traditions.  The Bill of Rights does not apply in the context of tribal governance on the same rationale (and I think with the concurrence of the tribes themselves — that is, they don’t want it to apply.)  When framed in terms of community autonomy, the non-application of US law looks more benign even when it comes at the expense of individual rights.  (There can also be clear advantages to variable legal geographies, as with Puerto Rico’s exemption from federal income tax.)

In short, how can we determine which departures from territoriality are justified and which are not?

Is Bagram the New Guantanamo? And why did the US adopt effects-based extraterritorial jurisdiction when our partners did not?

by Kal Raustiala

 

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 the continuing war against al Qaeda and the planned closure of GTMO, is likely to have new inmates arriving in the future.

The issue of Boumediene’s applicability to Bagram recently arose (as my book was going to print) in the case of Maqaleh v. Gates. (Those wanting a longer discussion of the case can see my short essay in the ASIL Insights series, at http://www.asil.org/insights090618.cfm). The bottom line is that at least one federal judge has applied the Boumediene framework to Bagram and found that the constitutional right to habeas does apply to at least some, non-Afghani, detainees held there. Animating the decision was the concern raised by the majority in Boumediene that the executive not be given the ability (and incentive) to evade constitutional strictures simply by choosing the location of detention. This, of course, was Hugo Black’s prescient concern in his dissent in Johnson v. Eisentrager, the 1950 case that was relied upon so heavily by the Bush Administration in the years after 9/11.

Let me also briefly note Bill Dodge’s argument about the rise of effects-based extraterritoriality. The presence of foreign assets in the US is definitely a key factor in the success of this approach, and that presence is in turn a function of the huge American market. So I think Bill is right to highlight this, and probably I should have underscored it even more. However, foreign assets have been present in the US for a long time, so (as Bill is aware) this is not really a primary motivator behind the creation of effects jurisdiction; it is instead a permissive cause. 

Does this factor explain why other nations, like the UK, trailed the US in adopting this approach to extraterritoriality? The answer would require more empirical work, but it was certainly true that there was substantial foreign investment in places like Britain and France. To be sure, the US was a major player in the global economy in the postwar era. Yet within a few years time the devastated economies of Europe were producing again and they recovered their footing fairly quickly. So I have some doubts about whether this factor was really significant.

 

Constitutional Domain and the Court

by Tim Zick

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 glacial.  Within this narrative, there are some fascinating examples of courts dramatically pushing constitutional boundaries outward, including the United States Court for Berlin’s (post-Reid but pre-Verdugo) application of the right to jury trial to an alien outside U.S. borders (a story engagingly told on pp. 151-53).  There have also been some relatively recent lower court decisions that expanded the territorial scope of constitutional rights.  But in the Supreme Court, there has been very little expansion of the Constitution’s domain over time.  This is so despite the fact that the evolutionary path cuts across some periods associated with an active and rights-enforcing judiciary, and despite the fact that American power has expanded dramatically in geographic terms. 

Even more remarkable than the lack of expansion has been the lack of constitutional clarity.  Although the scope of extraterritoriality in the statutory context seems now to be well settled, a great deal of confusion and uncertainty remains in the constitutional context.  As Kal correctly states, “[t]he courts of the United States rarely give a big answer when a smaller answer will suffice.”  (243)  Judicial minimalism is certainly a partial explanation.  But I wonder why, in more specific terms, the Court has had such a devil of a time historically with questions of constitutional domain.  Try explaining the Constitution’s extraterritorial scope to a relative, or a student, and you will quickly find yourself hedging and qualifying.  Verdugo offers multiple approaches.  Boumediene actually may leave more questions unanswered than it answers, and may ultimately tell us next to nothing about the Constitution’s domain.  If so, this will essentially leave us with Reid and Verdugo (and the puzzles of the Insular Cases).  Are territorial domain issues simply more difficult and sensitive than other constitutional questions?  Are the stakes simply higher?  Is the Court uncertain of its expertise, or its competence to fashion some workable rule?  Has it been waiting for some political judgment or settlement? 

Whatever becomes of detainees in both ongoing and future wars, the issue of constitutional domain will not go away.  Do you expect that a reader who picks up the book in 10 or even 20 years will learn all there is to know about the subject of constitutional domain?  Or do you think the Court will revisit this issue and attempt some clarification?

The Uniqueness of Gitmo and the Practical Irrelevance of Boumediene

by Roger Alford

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 of forces agreement for American troops at the base…. [T]he hundreds of thousands of U.S. troops stationed in bases around the world are … the subject of dozens of status of forces agreements…. Guantanamo is the only major American overseas base without a SOFA. The second, closely related, factor is the unique lease arrangement with Cuba. The lease was signed by the newly independent Cuba and the United States in 1903 is effectively perpetual: it requires the assent of both parties to terminate it.” (p. 191).

My question is whether the uniqueness of Guantanamo renders Boumediene‘s discussion of territoriality largely irrelevant, or at least confined to a class of one military base. Later in the book, Raustiala writes,

“there was little in Boumediene that truly stopped the executive branch from switching the Constitution on or off at will. The Bush Administration could have held the same detainees in Iraq, or Afghanistan, or a military base elsewhere in the world…. Indeed, the detainees could be moved to such places now…. [I]n its careful attention to practicality, and to function rather than form, [the Court] suggested that there was something quite special, even unique, about Guantanamo. No other American based could be said to be formally within another sovereign state but ‘in every practical sense…not abroad.’” (p. 216).

So my question is whether Boumediene has any practical relevance once Guantanamo is closed down. It seems that the United States does not have “de facto” sovereignty where the United States has entered into SOFAs with the host state, and therefore I wonder whether you think the Constitution follows the flag to protect alien detainees held in overseas military bases besides Gitmo. And if your answer to that question is yes, does it also apply when the United States has even lesser control, such as detention by international, coalition, or foreign forces at our request and encouragement. Is the fundamental difference that Gitmo is essentially “territorial”, while all the other detention arrangements are “extraterritorial”?

I know you hint at an answer in the book, but I would appreciate it if you could clarify what you think the answer would be in these other scenarios.

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).