OUR EXTRATERRITORIAL CONSTITUTION: A THEORY PROPOSED

Abstract

For over a century, courts have struggled to determine whether, and to what extent, the Constitution applies outside our borders. To date, they have not come up with a single test, instead taking an ad hoc, clause-by-clause approach that has left nothing but questions for lower courts to grapple with. Scholars have suggested various tests, based on differing theories of extraterritorial application, but so far, none has caught on. After examining the conventional discussion of the extraterritorial application of the Constitution, additional cases that get left out of this history, as well as contributions from the lower courts, this article provides a new test for courts to use to determine when to apply the Constitution to a claim. This proposed test draws on various prior court cases to distill the inquiry down to a straightforward application of a three-part test.

First, courts should determine whether the Government has the power to act at all. If the court determines that the Constitution forbids the action in question, then the court should enforce that prohibition and the test is over, for the Government may not exercise power it lacks anywhere in the world. Second, if the Government does have the power, the court should next ascertain where the alleged constitutional violation takes place. Courts far too often skip this step, just assuming that if the plaintiff is outside the United States, the violation must have occurred there. But this is not always so. While the effects of unconstitutional action may be felt outside the United States, the action itself often occurs domestically. In such a case, the court would apply the Constitution normally. Only if the action alleged to have violated the Constitution occurred abroad should the court turn to the final inquiry—does the Constitution apply and if so, to what extent?

This final step is itself composed of three parts. First, because the Constitution will never provide more rights outside the territory of the United States than within, the court should determine if there are constitutional or prudential doctrines, such as standing, ripeness, mootness, etc. that interpose and prevent a decision. If the court can reach the merits, it then must ask itself, consistent with Supreme Court precedent, if applying the constitutional provision at issue abroad would be “impracticable or anomalous.” Is the court dealing with a right that can be applied abroad? Are there practical obstacles that would require tailoring the right, such that its application abroad may not precisely mirror its application at home? As a backstop, I suggest that such tailoring can never violate a ratified treaty or non-derogable jus cogens norm. Finally, does there exist, or can the court create, an equally effective alternative to safeguard the interests protected by the constitutional provision at issue?

The article concludes by running several fact patterns through this test, to demonstrate how it would work in the real world, where judges are called upon to make these difficult decisions.

Keywords: constitution, constitutional law, constitutional theory, extraterritorial, extraterritoriality