The Geography of Justice
56 Pages Posted: 9 Apr 2005
Recent litigation over Guantanamo has turned on whether the detainees there have any constitutional rights cognizable by American courts. Why is geographic location thought to be determinative of the rights of aliens abroad? The supposition that law and legal remedies are connected to, or limited by, territorial location - a concept I term legal spatiality - is commonplace and intuitive. The concept is suffused throughout the law. Yet, perhaps precisely because it so commonplace, the assumptions embedded in legal spatiality are rarely examined and surprisingly ill-defended. This article explores legal spatiality and its contemporary implications. As I will show, there are persuasive reasons to take spatial location into account when interpreting legal rules. Current doctrine, however, does a poor job of accounting for these reasons and provides no coherent and consistent theory of the role of spatiality within our legal order. The last century has witnessed a progressive relaxing of legal spatiality. Yet with regard to noncitizens, the federal courts continue to cling to the notion that American law is tethered to territory - that simply by moving an individual around in space, the rights that individual enjoys wax and wane. This article argues that this strictly territorial approach ought to be rejected. Instead, the spatial reach of legal rules ought to be evaluated functionally and flexibly, with a rebuttable presumption that when legal power is brought to bear, so too are legal protections. This is not to suggest that territorial borders do not matter: they clearly do. Rather, my claim is that a narrow fixation on sovereignty and territoriality is at odds with contemporary concepts of jurisdiction, with the intensifying trend of globalization, and with our most cherished principles of constitutionalism.
The article proceeds as follows. After briefly describing the roots of legal spatiality in the deep structure of the international legal system, I analyze the evolution of legal spatiality across a number of doctrinal areas. These areas are rarely considered together, but all implicate legal spatiality in one way or another. They also demonstrate that legal spatiality has been substantially transformed in the last century. I then look at the particularities of the connection between Guantanamo and the United States and critique the position that conceptions of territoriality and sovereignty or the Guantanamo lease agreement, somehow bar the application of those legal rights noncitizens possess when held within the fifty states. Finally, I consider some alternative conceptualizations of legal spatiality, and argue that spatial location ought not woodenly foreclose the existence of constitutional rights for noncitizens subject to American power outside the boundaries of the United States.
Keywords: Guantanamo, extraterritoriality, constitution
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