Applying the U.S. Constitution Abroad, from the Era of the U.S. Founding to the Modern Age

By Veneziano, Alina | Fordham Urban Law Journal, June 2019 | Go to article overview

Applying the U.S. Constitution Abroad, from the Era of the U.S. Founding to the Modern Age


Veneziano, Alina, Fordham Urban Law Journal


TABLE OF CONTENTS  Introduction                                                        604   I. An Analysis of the Jurisprudence on the Extraterritoriality    608      of Constitutional Provisions        A. The Supreme Court's Early Jurisprudence on                610           Extraterritoriality        B. World War II and Changes in Extraterritorial              612           Jurisprudence        C. Fourth Amendment and Fifth Amendment Application in       615           Extraterritorial Jurisprudence        D. The Detainee Cases and Extraterritoriality                618        E. The Territory-Citizenship-Enemy Model                     625  II. Approaches to Extraterritorial Extensions of Constitutional    627      Protections        A. The Majority, Concurring, and Dissenting Opinions of      627           Verdugo-Urquidez        B. Matrix of Possible Situations and Corresponding Outcomes  628 III. The Propriety of, and Basis for, Extending Constitutional      629      Protections  IV. Recommendations                                                632        A. The Proposed Framework for Constitutional Protections     633        B. Reflections on the Proposed Framework and Other           635           Considerations   V. Urban Policy: Federal Inaction and the Problems Faced by       637      States and Cities Conclusion                                                          639 

INTRODUCTION

With the fixation on geographic borders and the desire to shift and  affect jurisdiction in a globalized world, "this sort of reverse forum  shopping by governments is much easier than it would have been in the  past." (1) 

One might assume that considerations of race, national origin, or citizenship are inconsequential to the application of the United States government's laws and regulations. However, the geographic reach of the Constitution, extended on the basis of these factors, has long been a debated topic. (2) This debate concerning the extraterritorial (3) reach of U.S. constitutional protections upon foreign nationals have existed throughout U.S. history, in contexts ranging from the Second World War and the Cold War to international drug cartels at the southern U.S. border to the War on Terror. (4) Foreign nationals present in the United States "have been subjected to selective interrogation, registration, detention, and deportation on the basis of their national identity." (5)

The issue for the courts has been whether such constitutional provisions apply in cases where "some of the relevant facts are located outside the territorial borders of the state." (6) While the traditional cannons of interpretation can provide some guidance, case law reveals that the Supreme Court ultimately does not rely on this approach when deciding whether to extend the reach of the Constitution beyond the United States, because of the unique nature of constitutional questions. (7) For instance, statutes can be more easily amended if the Supreme Court decides an issue contrary to congressional intent, whereas constitutional provisions are "extremely difficult to amend." (8) Therefore, the judiciary examines them differently.

U.S. courts are still struggling to answer the broader question of how far constitutional protections should extend--a question with tremendous historical significance. During the Civil War, for instance, constitutional protections did not extend to military enemies, leaving courts closed to enemy combatants during and after the war. (9) This meant that all persons residing in the enemy nations "were out of the protection of the Constitution, no matter their citizenship." (10) Thus, contrary to popular belief, citizenship was not the determining factor; rather, determinations were made based on "formal, categorical distinctions between domestic and foreign territory, war and peace, resident and nonresident, enemy fighter and not, and zone of battle and elsewhere." (11) Nor did the Constitution extend protections to non-U. …

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