Constitutional Displacement

Abstract:     
This Article examines the intersection between territory and constitutional liberty. Territoriality, as defined by Robert Sack, is the attempt to affect, influence, or control people, phenomena, and relationships by delimiting and asserting control over a geographic area. Territoriality affects constitutional liberty in profound ways. These effects have been apparent in certain infamous historical episodes, including the territoriality of racial segregation, the geographic exclusion and internment of Japanese-Americans during World War II, early state migratory exclusions, and isolation of the sick and mentally ill. Today, governments are resorting to territorial restrictions in an increasing number of circumstances, including detention of enemy combatants at Guantanamo Bay, attempted expulsion of illegal immigrants from local communities, banishment of convicted sex offenders from vast geographic areas, exclusion of homeless persons from public spaces, and proposed isolation and quarantine of victims of pandemics and bio-terrorist attacks. These and other measures have produced what the Article refers to as Geographies of Justice, Membership, Punishment, Purification, and Contagion. Within these geographies, persons and groups are subject to constitutional displacement - the territorial restriction or denial of fundamental liberties. The displacements examined in the Article substantially restrict or deny basic liberties including access to justice, migration, movement, communal and political membership, and the ability to be present in places of one's own choosing. The Article demonstrates that the Constitution provides less than robust protection from certain forms of territorial displacement. Analyzing the Constitution itself as a spatial framework, one that relies upon place, geography, and territory for various purposes, the Article shows that displacement arises from extra-territorial and intra-territorial "spatial gaps" in text and structure. The Article proposes that these spatial gaps be narrowed or closed.

Keywords: territory, liberty, displacement, spatiality

JEL Classifications: K10

Accepted Paper Series