Constitutionalism and Mobility: Expulsion and Escape Among Partial Constitutional Orders

Abstract

Mobility, in its many different forms – its restriction and its excesses, for individuals and for corporations – lies at the heart of many pressing challenges for contemporary constitutionalism. The legal treatment of mobility, however, is fragmented across many different specialized fields – from immigration law, to tax law, to international arbitration – to which constitutionalist concerns are rarely central. This paper aims to address this lacuna by sketching the contours of an ‘outward-facing constitutionalism’ which could provide the conceptual and normative means to scrutinize the constitutional implications of the regulation of ‘access’ and ‘exit’ for both individuals and corporate actors. In its first part, it contrasts the recognition of the legally constructed character of borders and jurisdictional boundaries in critical scholarship, with the ubiquity of unquestioning determinations of ‘inside’ and ‘outside’ in judicial practice. The second part of the paper, then, approaches the question of the character and effects of constitutional boundaries by way of a case study on mobility. Taken together, these two parts reveal the intertwined relationship between these two themes – showing how constitutionally relevant boundaries are often constituted through their effect on mobility, and how mobility can itself only be grasped in terms of legal boundary-crossings.