By Kal Raustiala
The Bush management has notoriously argued that detainees at Guantanamo don't get pleasure from constitutional rights simply because they're held outdoors American borders. yet the place do ideas approximately territorial criminal limits resembling this one come from? Why does geography make a distinction for what felony principles follow? most folk intuitively keep in mind that situation impacts constitutional rights, however the felony and political foundation for territorial jurisdiction is poorly understood. during this novel and obtainable therapy of territoriality in American legislation and international coverage, Kal Raustiala starts by means of tracing the historical past of the topic from its origins in post-revolutionary the United States to the Indian wars and out of the country imperialism of the nineteenth century. He then takes the reader during the chilly warfare and the globalization period earlier than ultimate with a robust clarification of America's try and bring up its extraterritorial strength within the post-9/11 international. As American energy has grown, our knowing of extraterritorial criminal rights has multiplied too, and Raustiala illuminates why America's assumptions approximately sovereignty and territory have replaced. all through, he makes a speciality of how the felony limits of territorial sovereignty have decreased to house the increasing American empire, and addresses how such limits should glance within the wake of Iraq, Afghanistan, and the battle on terror. A well timed and fascinating narrative, Does the structure keep on with the Flag? will switch how we predict approximately American territory, American legislations, and-ultimately-the altering nature of yank energy.
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Extra resources for Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law
But the constitutional framers also considered the role of territoriality in the new political order. Their understanding of the role of territory in structuring sovereign power surfaced in several ways. First, the Constitution presupposes a territory—it is a constitution for a Westphalian state. More specifically, it makes two express references to territory. The Territory Clause declares that: ‘‘The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.
The long-standing belief that constitutional protections did not apply extraterritorially was bolstered by judicial decisions entrenching intraterritorial distinctions. If the Bill of Rights did not fully apply within the United States, many reasoned, surely it did not fully apply outside the United States either. 71 They also became essential elements in later rulings that preserved some traditional territorial limitations on constitutional rights. Whether the Constitution followed the flag, in other words, not only had meaning for America’s formal empire—the narrow but highly significant 24 D O E S T H E C O N S T I T U T I O N F O L L OW T H E F L A G ?
America was weak, and there were many European powers that could credibly threaten to intrude on the domestic domain of the United States. The United States was particularly concerned by the prospect of incursions by the major hegemonic power of the day, Great Britain, which remained present just to the north of the new nation. Secretary of State John Calhoun’s statement in 1844, meant to ward off British interference in criminal matters, was emblematic: We hold that the criminal jurisdiction of a nation is limited to its own dominions and to vessels under its flag on the high seas, and that it cannot extend it to acts committed within the dominion of another without violating its sovereignty and independence.