In this book, Kal Raustiala addresses a seemingly simple question that has defied simple answers for two centuries: how to define the borders of the United States. The border of American law, he argues, is less a line than a zone, and that zone is both smaller and larger than the nation's territorial borders. Provoked by the Bush administration's “war on terror,” Raustiala focuses new attention on the concept of territoriality in American constitutional law. In doing so, he identifies a heretofore unappreciated thread that runs through the fabric of American legal doctrine and political development.
In lively and engaging prose, often told through the very human cases that challenged the courts, the author demonstrates that from its inception the United States has been perplexed by where, when, and over whom its laws apply. In its so-called Indian country, continental territories on their way to statehood, and overseas possessions, the country has wrestled with what Raustiala calls “intraterritoriality,” the question of what laws apply to individuals and territories “outside” the United States but clearly subject to its sovereignty or control. Resolving this issue was central to America's overseas expansion. If the Constitution fully followed the flag everywhere it went, Washington could rule a global empire of noncitizens only with great difficulty. Culminating in the so-called Insular Cases, the Supreme Court eventually established doctrine that treated such territories as “foreign in a domestic sense”—the incoherence of which is evident in the very obtuseness of the phrase. Rejecting an earlier doctrine of strict territoriality, the Supreme Court found that “aside from certain fundamental rights that always applied within American territory, Congress possessed the power to determine what rights applied to what territory within the borders of the United States” (p. 24).
As its international power grew, the United States also extended its zone of law far beyond its borders. Extraterritoriality was first imposed only on weaker states, most strikingly in the U.S. District Court for China (1906–43). Fearful of exposing Americans to exotic law in foreign lands, extraterritoriality bound citizens to American law and provided for trial in American courts for crimes they committed overseas. At the same time, however, strict territoriality denied Americans abroad the rights supposedly guaranteed by the Constitution.
After 1945, traditional extraterritoriality was overturned in favor of a new form in three variants. Explicating this new form is, in my view, one of Raustiala's most important contributions. In the military sphere, the United States created a network of bases around the globe, nearly all of which included a Status of Forces Agreement (SOFA) granting it jurisdiction over military forces and families living abroad. Importantly, however, as the presence of American citizens expanded in foreign countries, new doctrine established for the first time that citizens had not checked their constitutional rights at the border but retained them wherever they might interact with their government. In the economic arena, a new effects-based doctrine asserted that “acts that had tangible impacts within its borders could be regulated by the United States, wherever they might have originated” (p. 95).This new doctrine was first evident in the extraterritorial application of American antitrust law, but as the domestic regulatory state grew, so did the range of foreign practices that came under its purview. Growing rapidly from the 1960s, criminal behavior by foreign nationals brought the assertion of new authority by the United States, which continued to deny them full constitutional protections. All three forms of extraterritoriality, Raustiala concludes, “demonstrate an often overlooked face of postwar American hegemony: a marked willingness to project power and law, sometimes unilaterally, within the territorial borders of other sovereign states in an effort to better control and deter transboundary threats” (p. 180).
All this sets the stage for Raustiala's penultimate chapter examining the war on terror. After 9/11, the United States dramatically extended its extraterritorial reach once again, and employed new tactics such as extraordinary rendition and new “black sites” to detain and interrogate suspected terrorists. Guantanamo Bay, in turn, was selected as the principal prison site for terrorists, regardless of nationality, because it is the only American military base on the sovereign territory of another state—Cuba—without a SOFA. Relying on earlier conceptions of strict territoriality, as well as established precedent, the Bush administration considered Guantanamo to be beyond the reach of American law, thus providing the executive branch with considerable flexibility in dealing with detainees. Yet, in Boumediene v. Bush, decided in 2008, the Supreme Court reacted to this end run around the Constitution and found that “detainees [at Guantanamo] had a constitutionally protected right to challenge their detention before a federal court” (p. 215). Although this right would likely not apply to facilities outside of direct U.S. control, for the first time, as Raustiala shows, the Supreme Court discovered that a “constitutional right applied to an alien held outside the United States” (p. 218).
Written for lawyers and a general audience, Does the Constitution Follow the Flag? will be of interest to at least three groups of political scientists. Constitutional law scholars will find Raustiala's focus on territoriality helpful in organizing debates over the extent of American law and in revealing shifts in legal doctrine. Scholars concerned with the meaning of citizenship will also benefit from the author's fresh insights into what it means to be an American. In a country bound together only by respect for the Constitution, to understand that the protections of that venerated document vary not only by who a person is but by where he or she is renders more problematic that already fraught concept. Finally, Raustiala contributes to the growing revisionist literature on sovereignty and, thus, his book is important to scholars of international relations. The notion of territoriality is central to the principle of Westphalian sovereignty, which takes as its foundation that a nation's laws and borders coincide. Others have shown that international practice is often inconsistent with the principle of sovereignty. Breaking new ground, Raustiala demonstrates here that even basic laws do not conform with Westphalia sovereignty.
This wonderful book is not, however, without its limitations. Even as an analysis of legal doctrine, it lacks a theory of judicial decision making. Raustiala insightfully places judicial decisions in the context of the evolving international position of the United States, the rise of the regulatory state at home, and larger Supreme Court debates. But the key decisions that determine the zone of law seem to come from “nowhere.” At most, judicial decision making is portrayed as responsive to political pressures, pragmatic and flexible, and generally directed toward the enhancement of “American power and interests on the world stage” (p. 224). But how and why individual cases are decided as they are remains unexplained. His analysis of intra- and extraterritoriality also cries out for comparative analysis. Some tentative comparisons are posed in the conclusion, but possible American “exceptionalism” needs more detailed examination.
Finally, it would have been useful for the book to look to the future and the relationship between extraterritoriality and international law. If extraterritoriality is an attempt to harmonize American and foreign laws, as Raustiala argues, how will this play out as the United States declines, China rises, and globalization continues? Will national legal systems clash as they are projected onto the world, or will fears of conflict provoke new efforts to unify law at the international level? Again, the author makes reference to these questions, and is explicit throughout in showing how international law shaped the meaning of intra- and extraterritoriality, but by limiting his analysis to the United States he cannot really engage these issues.
No one can do everything in one book, and Raustiala wisely does not overreach. These limitations, like the subject matter itself, open the door through which I hope that others will walk to a broader and more international research agenda on territoriality in the modern world.
