In the aftermath of 9/11, the Bush administration opened the now-infamous detention center at Guantánamo Bay. The detention center's location in an offshore military base—a territory not formally a part of the United States, yet under U.S. jurisdiction and control—has raised an important legal question: Do the detainees have constitutional rights, such as the right to file a habeas petition? Recent Supreme Court decisions notwithstanding (Boumediene v. Bush 2008), as Kal Raustiala writes in Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law, the answer to this question is far from straightforward.
Raustiala states in his acknowledgments that the inspiration to write Does the Constitution Follow the Flag? first emerged from a student's question about the constitutional and jurisdictional status of Puerto Rico as an American territory, and then blossomed during the post-9/11 debates over the Guantánamo detainees and the rights of those being held in the United States's “black site” prisons scattered across Europe and Asia. In this compelling and well-researched book, Raustiala explores “whether, and if so how, the law of the United States is [or has been] congruent with its sovereign territory” (p. 5). Raustiala approaches his subject matter from an analytical, not normative, perspective. He is not arguing whether the Constitution should follow the flag. Rather, he is interested in tracing the evolution of territoriality in American law; in delineating the instances in which the Constitution did, and did not, follow the flag. Specifically, his approach is to historically trace, via contextualization and analysis of relevant court cases, the development of what is commonly called “extraterritoriality” and what he calls “intraterritoriality.”
By “intraterritoriality,” Raustiala is referring to cases in which different regions within the sovereign, territorial borders of the United States, or in other instances, regions outside of the United States but under American imperial control, have been held to different (typically lesser) legal standards. He interprets intraterritoriality as a strategy to exploit legal difference for strategic ends and explores the concept in the context of nineteenth-century “manifest destiny,” American westward territorial expansion, and American imperial expansion overseas. During these times, it was clear to legal authorities that the Constitution protected those in the States, but did constitutional norms apply to the Western territories? To “Indian country?” To Hawaii and the Philippines? To Puerto Rico? It was hard to argue that these territories were not under American power, but did legal rights follow this power? Raustiala's primary source material for this book is prominent legal cases, and in this instance he details the intraterritorial implications of, for example, the infamous Dred Scott case (1857, in which the Supreme Court determined that constitutional rights—in this case, protection of private property—did extend into Federal territories) and Downes v. Bidwell (1901, one of the “Insular Cases”), decided some half a century later, which veered away from the logic of Dred Scott and facilitated the expansion of the United States's overseas empire by declaring Puerto Rico as American territory but beyond full constitutional protection (as the Court awkwardly wrote, Puerto Rico was “foreign in a domestic sense” [p. 82]).
The majority of Does the Constitution Follow the Flag? engages with the more widely known concept of “extraterritoriality,” which Raustiala explains as those instances in which the Constitution and domestic law reach beyond the sovereign, territorial borders of the United States in an effort to “smooth over,” or mitigate legal difference (again, to strategic ends). As with intraterritoriality, Raustiala explores extraterritoriality from the founding of the United States to the present via a discussion of prominent Supreme Court cases, placed into social and political context. His exploration is far-ranging and includes discussion of cases such as American Banana (1909), which upheld a strict interpretation of territorial constitutionality, to Alcoa (1945) and the post–World War II development of “effects-based territoriality,” in which actions that took place overseas but caused harm at home were declared subject to domestic law, and more recent cases in which the Court has grappled with the appropriate foreign reach of domestic law, such as Verdugo (1990), which determined that foreigners overseas were not constitutionally protected against search and seizure by federal agents.
A central contribution of this volume, in addition to its detailed historical research, is Raustiala's desire to discern a pattern of extra- and intraterritoriality in American law. He ultimately concludes that “there is no simple path from older, territorial concepts of jurisdiction to a contemporary globalized world of extraterritoriality” (p. 241), but he does argue that in general, extraterritoriality in American law has waxed and waned over time, most often for strategic reasons. In the early years of the republic, with the United States a relatively weak actor on the global stage, it is understandable that the Supreme Court would uphold a strict interpretation of constitutional territoriality: In arguing that American legal norms should not extend overseas, the justices were arguing implicitly against the encroachment of other sovereign powers into the territory of the fledgling United States. However, as the United States became more powerful—and ultimately the world's hegemon—the Court began to defend extraterritoriality to the nation's advantage. And most recently is yet another example of strategic territoriality: placing the 9/11 detainees at Guantánamo in an attempt to disavow the connection between the law and the land, and to further the goals of the “War on Terror.”
This volume is carefully written, thoroughly researched, and compellingly argued. It will appeal to readers curious about some of the thorniest constitutional questions of the day. So, does the Constitution follow the flag? Raustiala does not provide a definitive answer to this question, but he provides the reader with the assurance that the answer to this question is still evolving, frequently in lockstep with American strategic interests.
