West Law Report

The Extraterritorial Constitution and the Interpretive Relevance of International Law

A note in Harvard Law Review (May 2008) (.pdf) (22 pages):

For over a century, courts have wrestled with the question of whether, and to what extent, the Constitution applies outside of the United States. While this question first surged to prominence when the enterprise of American expansionism went to the Supreme Court in the Insular Cases, it has begun to receive renewed attention in recent years as the post-9/11 war on terrorism has brought extraterritoriality issues to the fore. Though the precise legal framework that will govern this question is unclear at the moment, there are indications the Constitution may apply when the result would not be “impracticable and anomalous.” Given the significance of this matter, it is striking that the “impracticable and anomalous” standard “has not yet acquired an academic theorist who would elaborate and defend it as the best interpretation of U.S. constitutionalism.” Indeed, the standard has been criticized for giving courts too much discretion on sensitive matters.

Part I discusses the state of the law following United States v. Verdugo-Urquidez (1990) and the contemporary significance of the question of extraterritorial application of the Constitution. Part II situates the “impracticable and anomalous” standard in historical context, drawing on the nineteenth-century use of international law to identify “powers inherent in sovereignty,” and lays out a justification for the contemporary use of international law in fleshing out the Constitution’s extraterritorial applicability.

Part III argues that in the context of the war on terrorism, it is sensible to look to IHL to guide the inquiry into when certain rights apply extraterritorially. By reference to the differences between battlefield targeting law and detention law — vestiges of the traditional “Hague Law”-“Geneva Law” distinction in IHL — this Note demonstrates how, under the “impracticable and anomalous”standard, Fourth Amendment protections do not apply to house-tohouse counterterrorist sweeps abroad, but Fifth Amendment procedural due process protections apply to war on terrorism detainees held extraterritorially. These examples prove nothing conclusively, but they do illustrate the promise the international law–based approach offers in clarifying this murky area of the law. Finally, Part IV concludes with some discussion — and some potential caveats — regarding the broader usefulness of this framework beyond IHL and the war on terrorism.