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

By Kal Raustiala

(Oxford University Press, 328 pp., $29.95)

In 1898, American and Spanish officials signed the Treaty of Paris, which ended the Spanish-American War. Spain ceded Cuba, the Philippines, Puerto Rico, and other colonial possessions to the United States. The Spanish-American War had been fought in the name of Cuban freedom, and sentiment in the United States favored Cuban independence. But for most Americans, the other Spanish colonies seemed like the just fruits of conquest after a glorious war. The United States, already an economic colossus on the world stage, would take its rightful position as a great power on par with Britain, France, and Russia, with colonies to prove it.

Yet the United States was different from those countries. It had a written constitution that provided for limited government and a substantial tradition of democracy. The Constitution, as understood at the time, envisioned only two types of American territory: the states themselves, and the contiguous territories on the North American landmass that the United States controlled or was likely to acquire in the future. In 1898, it had been long established that people living in those territories have constitutional rights, and that the territories eventually become states.

For Americans who yearned for imperial glory and took the Constitution seriously, the acquisition of the Philippines and the other Spanish colonies posed a painful dilemma. If the Philippines was to be treated as any other American territory, then the inhabitants of that country—widely regarded at the time as racially and culturally inferior—would become Americans. One did not have to be a racist to believe that it would be impractical to absorb into the American polity millions of people living on islands thousands of miles from the American mainland. But if the Philippines was not to become an American territory, then it would need to be abandoned, in which case it would surely be taken back by Spain or swallowed up by some other empire. An American empire, great-power status, the chance to spread Christianity and American civilization to benighted natives, the economic and political benefits of possessing overseas territories—all this would be lost, and it would be lost to dangerous great-power rivals. Alfred Thayer Mahan, the influential theorist of naval power, commented that “any project of extending the sphere of the United States ... is met by the constitutional lion in the path.”

The constitutional mouse stepped aside. In a series of remarkable decisions known as the Insular Cases, the Supreme Court bridged the horns of the dilemma. The Court ruled that Congress and the president determine whether a territory is to be eventually granted statehood; and if not, then only “fundamental” constitutional rights would be enforced in that territory. Whatever those rights were, they did not include the right to democratic representation in the federal government. The Insular Cases opened the way for imperial rule, but their more important legacy was subtler. They established that a country based on principles of democracy and limited government could depart from those principles when exercising power abroad.

In 1902, meanwhile, Cuba had become independent. The United States did not hold this country as a colony, as it did with the Philippines, but the United States did take steps to ensure that Cuba remained in its sphere of influence. Withdrawal of American troops stationed there since the Spanish-American War was made conditional on Cuban acquiescence in various constraints on its foreign policy, including a stipulation that the United States may “intervene” in order to preserve “Cuban independence.” In 1903, the United States obtained a ninety-nine-year lease of Guantánamo Bay from the Cuban government, later made indefinite. Under the terms of the lease, Cuba retained “sovereignty” but the United States was granted exclusive control of the area.

A hundred years later, lawyers for the executive branch would argue that people detained by American forces at Guantánamo Bay—Cubans and Haitians migrating in rickety boats but captured before they reached American shores, and then members of Al Qaeda and the Taliban—were located on foreign soil and therefore had no constitutional rights. The lawyers relied on a World War II-era case that suggested that aliens held by American forces on foreign territory did not enjoy habeas rights. Guantánamo Bay was not even a colony, as the Philippines had been; it was Cuban, not American, territory. So even if inhabitants of American colonies have certain fundamental rights, such as the right to habeas corpus, the Guantánamo detainees have none at all.

This argument prevailed in the courts for decades. But in 2008, the Supreme Court rejected the argument in the Boumediene case, holding that since the United States controlled Guantánamo Bay, it was a de facto American territory, and therefore habeas rights were available. Whether the detainees have any additional rights, even those enjoyed in the territories addressed by the Insular Cases, remains undetermined.

The Spanish-American War and the conflict over the detainment camp at Guantánamo Bay have more than a fortuitous geographic connection. They both reflect controversies over the use of American power abroad. In 1898, the debate took place straightforwardly in terms of empire: should the United States have an overseas empire like those of Britain and France? In the presidential campaign of 1900, William Jennings Bryan ran on an anti-imperialism platform. “We hold that the Constitution follows the flag.... Imperialism abroad will lead quickly and inevitably to despotism at home.” Bryan lost, and so did the anti-imperial forces in American politics.Today the moral and political case for exercising power abroad—no longer imperialism in the nineteenth-century sense of gunboats and colonies, but imperialist in effect—is virtually unquestioned within the United States. What remains of the old debate is the legal controversy over the constitutional basis for the exercise of power abroad.

This controversy is the subject of a valuable new book by Kal Raustiala. For Raustiala, the master concept for understanding the evolution of the law is “territoriality.” He argues that in fact many constitutional, legal, and political battles over the years have manifested themselves as conflicts about where the Constitution and American law apply. For Raustiala, there are two starting points for understanding this story. The first is the principle of Westphalian sovereignty. This principle, which holds that governments can regulate only their territories and not the territories of foreign nations, has its origin in the Peace of Westphalia in 1648, which ended the Thirty Years’ War and established the modern state system. The second is the principle of equal citizenship, which is that the law applies equally to all citizens. This is a fundamental principle of liberal democracy.

The Westphalian principle reflected the hard-won insight that, in the long run, states do better by leaving each other alone than by trying to control each other. The principle is hardly as uncontroversial as it sounds. In the seventeenth century, leaving other states alone meant allowing the inhabitants of those foreign states to go to hell if they did not practice the true religion. Today it means allowing them to suffer a secular hell of abuse and despotism if they do not happen to live in a liberal democracy. In both eras, it has meant leaving states alone even if they are violent and unstable, and are accumulating weapons, and seem likely one day to threaten other states’ security. The Westphalian principle has therefore been hard to live up to, but it remains central to international relations.

Raustiala argues that this principle has played an important role in shaping judicial doctrine. The truth is that it has played a minor role. American courts have never compelled the American government to respect the sovereignty of foreign states. Courts have played only a limited role involving vaguely worded statutes. Consider an antitrust statute that bans conspiracies in restraint of trade: if the statute has no explicit geographic limitation, then it could conceivably be interpreted to apply to foreign cartels that have no connection with the United States. American courts developed a so-called “presumption against extraterritoriality.” This provides that when the statute does not explicitly refer to foreign activity, it will be presumed that it regulates only activity that takes place on American territory. The presumption sensibly limits the risk that Congress inadvertently offends a sovereign by enacting a general law that courts mistakenly apply to conduct on foreign territories.

All this changed in the twentieth century. As a great power with foreign interests, the United States sought to assert regulatory authority globally. Antitrust laws, drug laws, anti-terrorism laws, and many other laws now were applied to foreigners on foreign territory as long as their behavior had an effect in the United States (and sometimes not even then). These laws established a new pattern: the United States would in effect rule, or at least burden foreign populations, not as subject populations in colonies like in the Philippines, but simply by enacting extraterritorial law that penetrated the borders of the supposedly sovereign states that they inhabited.

Foreign countries, including America’s closest allies, complained bitterly about these infringements on their sovereignty, but to no avail. Their corporations had to yield to American law in order to retain access to American markets. Terrorists, drug lords, and other criminals might have thought themselves safe as long as they did not travel to the United States. The United States could not send agents to foreign countries to arrest criminal suspects without violating international law; and although the United States on occasion has done so anyway, the practice has been controversial. But where foreign countries welcome American action rather than repudiate it, they have directed their law enforcement and military agencies to form partnerships with Washington. These partnerships gave rise to new constitutional questions. Did American agents who searched the Mexican residences of a Mexican criminal suspect have to respect normal Fourth Amendment restrictions? The Supreme Court held that they did not.

Raustiala argues that the purpose of the extraterritorial doctrines is “to manage and minimize the legal differences entrenched by Westphalian sovereignty.” The courts could do this by discouraging extraterritorial legislation, which would offend foreign countries, and forcing the American government to comply with the Constitution when exercising power abroad, which would at least prevent executive overreaching and minimize the damage. Raustiala is right, to some extent. But if this is so, the courts have not tried very hard. The presumption against extraterritoriality is weak and inconsistently applied. The courts have held that the Constitution protects Americans abroad from arbitrary detention and other actions by the U.S. government (for example, on military bases), but it hardly ever protects foreigners abroad. The courts have always deferred to the government’s determinations as to whether American sovereignty extends over some area. Respecting Westphalian sovereignty, avoiding offense to foreign governments—that is the business of the American government, not the courts. Far from trying to force the government to respect the Westphalian principle, the courts have eagerly participated in America’s regulatory imperialism.

Raustiala never asks why courts have treated the Westphalian principle so lightly. Many people today believe that courts should do more to constrain the American government when it exerts power abroad. But the courts have resisted their arguments. Judges probably believe that they could not control executive conduct abroad even if they wanted to do so—the logistical challenges facing the territorially bound and decentralized judicial system are just too great; and in any event the courts depend for their legitimacy on the attitudes of Americans, not the foreigners they are asked to protect. Judges, who typically have a parochial background in law firm practice or prosecution, lack the capacity to evaluate the merits of an administration’s foreign policy, and seem well aware of this.

Boumediene and other cases involving Guantánamo Bay might portend a change of heart, but it seems unlikely. These cases reflect longstanding judicial uneasiness with unconstrained executive power, not a newfound respect for the sovereignty of foreign nations. Indeed, in other recent cases the courts have continued their tradition of deferring to the political branches’ foreign policy decisions regardless of whether those decisions might offend foreign sovereigns.

Let us turn now to Raustiala’s second theme, the connection between the principle of equal citizenship and territory. Recall that a major principle of liberal constitutionalism is that all citizens receive equal treatment under the law. But which people count as citizens? Just the people who occupy a certain territory? Raustiala coins the unfortunate word “intraterritoriality” to refer to the extent to which rights depend on the geographical location, within American territory, in which a person is located. To understand what is at stake, imagine that the federal government wishes to abuse a group of people who live on American territory. If the government simply argues that the people do not deserve rights because they are inferior, courts might say that equal citizenship forbids such a result. But the government might choose to argue that the people live in a geographic area to which constitutional rights do not extend.

This alternative argument is not very convincing, which explains why the doctrines that Raustiala discusses are marginal. Doctrines of intraterritoriality include the rules created in the Insular Cases, which provided that the populations living in newly acquired territories destined never to become part of the United States receive second-class constitutional rights. The doctrines also include more obscure rules, now mostly defunct—those giving second-class constitutional rights to populations in certain designated Indian territories, Americans living in foreign enclaves subject to American jurisdiction, and Americans, including civilians, who live on American military bases overseas. Raustiala blandly concludes that these doctrines “reflect the tension between the demands of liberal constitutionalism and the imperatives of global power politics.”

Up to a point, this is correct. Liberal constitutionalism implies that everyone ruled by the government has equal rights under the law. If the U.S. government does not want to make citizens of Filipinos, then it should not rule the Philippines. If national security and economic advantages nonetheless dictate territorial acquisition, then the demands of liberal constitutionalism must yield. And that is what happened, with the acquiescence of the courts.

But this is only a small part of the story—the great and important story of how Americans over the years decided who would belong to the American political community, and accordingly would be entitled to the protection of constitutional rights, including the right to democratic representation. Today, the answer is, very roughly: everyone born in the United States, whether or not they remain on American “territory,” and, to a large extent, their children (even if not born on American territory). Quite a number of people on American territory do not belong to the American community and receive second-class constitutional rights: these are the tens of millions of resident aliens—none of whom has the right to vote in national elections.

Raustiala’s focus on territoriality—on “intraterritoriality”—causes him to neglect this story. In the nineteenth century, the question of who belongs to the American political community was up for grabs. African Americans? Well, no. Residents of Chinese or Japanese descent? Nonwhite foreigners lacked naturalization rights until World War II. Women? They were citizens but did not obtain suffrage at the national level until 1920. Geography played a role, of course. No one thought that an Italian living in Rome was an American citizen. Some connection with the American mainland, or with people living there, was necessary. But the great battles concerned whether citizenship also depended on race, ethnicity, ancestry, and ideology. Since the United States was such a diverse place and—some Indian tribes apart—the people were geographically mixed, the great questions of citizenship at that time could not be resolved along geographical lines.

The courts mostly played an insignificant role in these disputes, but there were some exceptions. The Insular Cases were important. The Supreme Court also held that the U.S. government could not deprive Americans abroad of constitutional rights. But here it was pushing against an open door. The government had deprived certain American civilians on overseas military bases of the right to a jury and an independent judge, not because the government regarded them as less than fully American but because of logistical costs. The Supreme Court’s most consequential decision defining the American political community was the Dred Scott case, where it held that Americans of African ancestry were not American citizens. By undermining political compromises that had carefully avoided taking a position on this divisive question, the Court helped to precipitate a civil war. After cooling its heels for a century, the Court weighed in again, this time with happier results, and helped the American political community reconcile itself to full citizenship rights for African Americans. Geography, territoriality, “intraterritoriality”—none of these ideas played an important role in these decisions.

The driving force is not geography itself, but the fact that people who live together tend to agree on basic political questions—if only to be able to get on with their lives. But when members of such a community spill over the borders, they usually take their citizenship with them; and when aliens pour in, they are not permitted to become citizens as of right. Thus, one’s location on American soil, or in a particular area of American territory, is not a necessary or sufficient condition for American citizenship. The courts seem to have understood this point from the beginning, which explains why they have not made a fetish of geography.

Raustiala’s two themes address, from different angles, the relationship between the courts’ and the American government’s exercise of power abroad. The courts could (but did not) limit uses of power by compelling the government to respect the Westphalian sovereignty of other states. And the courts could (but only modestly did) limit uses of power by compelling the government to grant rights to the foreign populations it ends up controlling. Still, even the modest constraints imposed by the Insular Cases turned out to be meaningless—because of the interesting evolution of the style of American imperialism.

After the Treaty of Paris, most Americans no doubt expected that the United States would have a glorious imperial future like that of Britain. That is not what happened. Woodrow Wilson and then Franklin Delano Roosevelt took a hard line against the traditional style of imperialism that featured territorial acquisition. This view would be reflected in the principle of self-determination that was incorporated in Wilson’s Fourteen Points and then in the United Nations charter. Why the United States turned against imperialism has never been satisfactorily explained. The country’s founding was itself an anti-imperialist revolution; and its ideological commitment to self-government was inconsistent with rule of foreign populations. These sentiments may well have influenced American policy over the years—Mexicans in territory conquered during the Mexican War became Americans rather than a subject population—but they did not block the Spanish-American War and imperial rule of the Philippines. By the twentieth century, the United States also had geopolitical reasons for opposing imperialism. It sought to gain access to markets controlled by the British and French empires. Opposing empire as a matter of policy could help pry open those markets; the only alternative—seizing the colonies—was obviously unpalatable.

But imperialism was also justified on the basis of security. Gibraltar served the British well during World War II; Guam and Hawaii (then a colony) contributed to the American war effort against Japan. Yet the United States seemed to realize, long before Britain and France did, that holding a colony against the wishes of its population was extremely costly. The United States was embroiled in a long and vicious war against insurgents in the Philippines, which featured torture and other atrocities on the American side that scandalized the public. The Boer War had a similar impact in Britain, but unlike the Americans, the British had dozens of imperial successes that counterbalanced the uneasiness that this controversial war generated about empire.

As the twentieth century progressed, Americans realized that the economic benefits of colonialism could be obtained through free-trade agreements and bilateral investment treaties, and that the military benefits could be secured through base agreements and military alliances. In extremis, small countries that were tempted away from the fold by hostile powers could be undermined internally or invaded, their governments replaced by people friendlier to the Americans—a costly and unpleasant business that was nonetheless a far cry from colonial administration. By the time of the Cold War, this new system was firmly in place.

The new system created a new legal landscape, which was very different from conventional imperialism involving territorial conquest. The Insular Cases could be regarded as dead letters, as constitutional aberrations. The new type of imperialism, if that is what it was—in which the United States offered aid and security in return for bases, constructed international trade and financial institutions that served American economic interests, and otherwise propped up allies while subverting adversaries—did not require territorial acquisition and colonial administration. Exerting power in these ways was not only more effective, it was also less troubling from a constitutional perspective.

The reason for this is not that modern imperialism is more benign than the old-fashioned type. The reason is that the Constitution reflects conventional assumptions about the nation-state: that the state is a vehicle for advancing the interests of the national population, and the government serves those interests, not the interests of particular foreigners or the world as a whole. Nothing in the Constitution suggests that Afghans or Iraqis have a say in the decision to invade their countries, or, for that matter, that Mexicans or Germans or Nigerians have a say in the American trade, agricultural, and energy policy decisions that have such a significant impact on their lives. If the American government extends its power abroad by conquering territory and absorbing populations, it must confront the question of whether those people now live “in” the United States and should have the rights of citizens; but if the government extends its power by offering aid and assistance to some countries and threatening others with sanctions and invasions, so as to obtain the identical economic and security benefits, the citizenship issue does not arise. The people in the affected territories remain foreigners, and thus not entitled to participation in our government.

From a constitutional perspective, the problem of American power over foreigners simply vanished. This development fits a pattern. When courts grant rights to enemies detained on American soil, the executive keeps them in colonies. If there are restrictions in the colonies, they can be put on military bases leased from foreign sovereigns. If some military bases, such as Guantánamo, are deemed de facto territory, the detainees can be moved abroad. If courts restrict detentions abroad, enemies can be handed over to foreign allies. Or captured by proxies. Or blown up by Predator strikes. Even after Boumediene, it is unlikely that courts will chase the executive to the far corners of the earth. But even if they do, the fact remains that, under our Constitution, foreigners do not have a say in these policy decisions.

Curiously, Americans do not seem to be bothered by this violation of the principle of self-rule: we can neglect the world as long as we appease the Founders. But foreigners do not wear our constitutional blinders. For many foreign critics, the American rejection of territorial conquest as “imperialism,” while accomplishing the same ends in less visible and constitutionally awkward ways, is hypocrisy. This is the domain of The Quiet American and other literary blasts against American power—and a large new scholarly literature on American empire. But no one yearns for American isolationism, either. So is there an alternative?

A handful of philosophers and political scientists have suggested that the United States should be forced by institutional means to take into account the values and the interests of foreigners. Some imagine a kind of world government to which people around the globe send representatives. Their schemes are wildly impracticable, but their logic is impeccable. The United States is founded on an ideology that emphasizes self-government as a natural right. It was the violation of that right by the British that justified the secession of the American colonies. This logic implies that the United States must either allow foreigners affected by American policies to vote in American elections or refrain from exercising power abroad.

The problem with this argument is not just its lack of realism. It is the brute fact that if Americans gave Chinese, Indians, Indonesians, and Nigerians political rights, either in American institutions or via global government, the result would not be the expansion of human rights around the world but the contraction of human rights in the West. The world is not a liberal place, and a world run on democratic lines would not be a liberal one.

Other scholars have offered a different route. It is that Americans must stop thinking of the Constitution as the primary source of political authority. The views of the rest of the world, as embodied in human rights treaties and foreign constitutions, must serve as a constraint on American power. In its grandest formulation, this view has been called “world constitutionalism.” This idea may have influenced some justices on the Supreme Court, who have taken baby steps toward recognizing the influence of foreign and international law on the development of American law. But the most significant of these cases—in which the Court struck down the death penalty for people who committed crimes as juveniles and for mentally retarded people, and cited foreign legal materials that repudiated these practices—ignited a political firestorm in this country, suggesting that this approach to constraining American power has as little appeal to Americans as world government does.

So the problem addressed in the Insular Casesnever really went away. It is a testament to the primacy of the Constitution in American political discourse today that charges of imperialism, which could be taken seriously in 1898 and 1900, are simply not recognized—not in American public discussion and not in sophisticated books that purport to address the topic, such as Raustiala’s book. Instead the debate takes place entirely within the constitutional framework. This is illustrated by Raustiala’s curiously anodyne depiction of the controversy over the constitutionality of the Guantánamo Bay detention center—what foreigners have called a “gulag” and a “lawless zone.”

Well aware of the constitutional ambiguities, Raustiala concludes that both the Bush administration and its critics have good arguments, and he refrains from taking sides. Guantánamo Bay presented a hard case, because it fell between the two pertinent legal categories—American territory and foreign territory. Under the lease with Cuba, Cuba retained “sovereignty,” but in practice the United States exerted control. Courts had traditionally deferred to the political branches’ decision to designate territory outside the mainland as subject to American sovereignty or not. Judges feared that a test based on effective control could end up extending the judicial writ to every base, battlefield, and building where the American government had control, everywhere in the world. The opinion in Boumediene ended up emphasizing the proximity of Guantánamo Bay to the mainland and hence the undemanding logistics of regulating it, leaving to another day the question of whether detainees elsewhere in the world have habeas rights but suggesting that they do not.

Raustiala concludes that because Americans have in recent years come to see the Constitution as a “far-reaching document whose roving powers can rein in almost any malfeasance,” they are alarmed by the proposition that “the Constitution does not apply as long as the executive is careful to act only in particular offshore places.” Perhaps. If he is right, then the remedy is apparently judicial supervision of foreign policy operations long thought to lie within the discretion of the political branches—though there is still no indication that courts will try to regulate trade, diplomacy, war-making, and the other activities that really matter for millions of people living outside the United States. The irony escapes Raustiala. Constraining executive power is not the same as constraining American power. The American imperial project will continue its voyage into the heart of darkness, only now with American judges on board, their robes flapping in the breeze. For a world as weary of American litigation practices as of American foreign policy adventures, this hardly counts as progress.

Eric A. Posner is the Kirkland & Ellis Professor at the University of Chicago Law School.

For more TNR, become a fan on Facebook and follow us on Twitter.