Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law

By Kal Raustiala | Go to book overview

PREFACE

This book is about the way that geography shapes legal rules and understandings—and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of American law. Do U.S. laws stop at the water's edge? If not, do they operate differently beyond American territory? At one level, these questions are narrow and lawyerly, and there is indeed a large legal literature on these topics. At another level, however, the nature of the connection between law and land raises profoundly significant political, economic, and social questions.

Many of us have watched footage of Cuban refugees swimming ashore in Florida, desperately trying to reach land before American officials can grasp them. Under what is known as the “wet foot-dry foot” policy, touching the territory of the United States—the dry soil itself—is critical to the legal determination of their status: the difference between a new life in the United States and a forced return to Cuba. This is a dramatic example of the power of territory, but not an unusual one. The laws of Japan differ from those of the United States, and hence even in a supposedly “flat” and globalizing world Americans in Japan expect to be subject to Japanese law. The spatial dimension of law exists even within the United States: Nevada permits acts banned in Utah, and thus crossing the state line alters what is and is not legal. In a deep sense legal power is defined territorially, and has been since the sovereign state came into being in seventeenth-century Europe. The basic jurisdictional principle is a simple one: where you are determines what rules you are governed by.

Yet, perhaps precisely because this principle of territoriality is so commonplace, it is rarely examined and surprisingly ill defended. Unlike sovereignty—the subject of yards of shelf space in any good library—territoriality

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