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

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

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

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

Synopsis

The Bush Administration has notoriously argued that detainees at Guantanamo do not enjoy constitutional rights because they are held outside American borders. But where do rules about territorial legal limits such as this one come from? Why does geography make a difference for what legal rules apply? Most people intuitively understand that location affects constitutional rights, but the legal and political basis for territorial jurisdiction is poorly understood. In this novel and accessible treatment of territoriality in American law and foreign policy, Kal Raustiala begins by tracing the history of the subject from its origins in post-revolutionary America to the Indian wars and overseas imperialism of the 19th century. He then takes the reader through the Cold War and the globalization era before closing with a powerful explanation of America's attempt to increase its extraterritorial power in the post-9/11 world. As American power has grown, our understanding of extraterritorial legal rights has expanded too, and Raustiala illuminates why America's assumptions about sovereignty and territory have changed. Throughout, he focuses on how the legal limits of territorial sovereignty have diminished to accommodate the expanding American empire, and addresses how such limits ought to look in the wake of Iraq, Afghanistan, and the war on terror. A timely and engaging narrative, Does the Constitution Follow the Flag? will change how we think about American territory, American law, and-ultimately-the changing nature of American power.

Excerpt

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 . . .

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.