DOES THE CONSTITUTION FOLLOW THE FLAG?

Vol. 20 No. 5 (May, 2010) pp.183-186

DOES THE CONSTITUTION FOLLOW THE FLAG? THE EVOLUTION OF TERRITORIALITY IN AMERICAN LAW, by Kal Raustiala. New York: Oxford University Press, 2009. 328pp. Cloth $29.95/£19.99. ISBN: 9780195304596.

Reviewed by Jeffrey L. Dunoff, Temple University Beasley School of Law. Email: jeffrey.dunoff [at] temple.edu.

What is the relationship between a country’s territorial boundaries and the reach of its laws? At one level, the answer seems intuitive and obvious: an American citizen vacationing in France would expect to be subject to French law, and geographic location often determines what legal rules are applicable. However, the congruence between territory and applicable law is hardly absolute, and is often highly contested: What legal rights, if any, do U.S. or foreign suspects detained by the U.S. in Guantánamo possess? Can suits alleging that foreign government officials engaged in torture abroad proceed in U.S. courts? Does U.S. law reach the acts of private firms the government hires to act in Iraq or Afghanistan? In short, disputes over the extraterritorial reach of U.S. law lie at the heart of many of America’s most contentious legal and political disputes.

Kal Raustiala’s DOES THE CONSTITUTION FOLLOW THE FLAG? THE EVOLUTION OF TERRITORIALITY IN AMERICAN LAW reminds us that questions over the relationship between territory and law, particularly constitutional law, have recurred throughout the nation’s history. Raustiala’s well-written volume provides a timely study of the complex relationships between geography and territory, on the one hand, and legal rules and understandings, on the other. In less than 250 pages of text, Raustiala skillfully weaves doctrinal analysis of Supreme Court opinions with arguments drawn from “second image reversed” international relations theory; economic approaches to legal developments are juxtaposed with vivid accounts of little-known historical events; and sweeping claims regarding of structural changes in the international domain illuminate intriguing legal phenomena, such as a U.S. court that sat in China. Raustiala’s wide-ranging book draws together rules and practices in numerous areas of U.S. law and policy, and argues that the concept of territoriality links issues as seemingly disparate as efforts to prosecute transnational crime and U.S. policy towards Native Americans. DOES THE CONSTITUTION FOLLOW THE FLAG? is a welcome and important contribution to the literature that explores the links between territory, sovereignty and legal authority.

Territoriality is “the organization and exercise of power over defined blocs of space” (p.5). While territoriality “lies at the core” of virtually all domestic legal systems, much of Raustiala’s book explores two specific ways that the reach of U.S. law does not always coincide with national borders. The first is the widely know phenomenon of extraterritoriality, or the use of domestic law to regulate persons or events outside national borders. As Raustiala cogently [*184] explains, extraterritoriality can take several different forms. For example, a number of U.S. laws, including prominently antitrust and securities law, purport to regulate activity that occurs abroad but that affects U.S. markets or citizens (pp.104-111). Another form of extraterritoriality involves “the fictional projection of U.S. territory abroad” (p.6). For example, during the eighteenth and nineteenth centuries, the U.S. and other Western powers entered into agreements with non-Western states that provided extraterritorial rights to Westerners. In particular, these “unequal treaties” often provided for “consular jurisdiction,” which permitted foreign diplomatic officials (consuls) to adjudicate civil and criminal matters involving their citizens abroad (pp.17, 60-72). A third type of extraterritoriality involves the extraterritorial reach of the U.S. Constitution. Although the question was not always free from doubt, it is now clear that U.S. citizens enjoy the constitutional protections against U.S. government actions even when they are abroad. Much less certain is the level of constitutional protections enjoyed by non-citizens abroad. For example, in an important 1990 decision, the U.S. Supreme Court held that the Fourth Amendment protections against unreasonable search and seizures do not apply to property owned by aliens and located abroad (pp.172-77). More recently, courts have struggled to identify which rights alien detainees in the war on terror possess.

Raustiala’s central claim is that, although extraterritoriality has taken different forms across U.S. history, the various forms “exhibit a common theme: they are efforts to manage, minimize, or sometimes capitalize on legal differences” (p.7). Consider, for example, the existence of diverse antitrust or environmental regimes around the world. This form of regulatory heterogeneity can create competitive advantages for foreign firms, and can leave U.S. consumers vulnerable to injuries caused by foreign goods. In these circumstances, the extraterritorial application of U.S. regulatory laws level the playing field; Raustiala argues that extraterritoriality can help “smooth out the bumps of a decidedly unflat world” (p.125).

The other way that domestic law is not congruent with national territory is labeled intraterritoriality, or the differential application of domestic legal norms to different areas within national jurisdiction. As Raustiala explains, the United States “comprises a complicated mix of territory, including the fifty states, federal territories such as Puerto Rico, and ‘Indian country,’” and throughout much of U.S. history, something less than the full panoply of constitutional rights have applied in certain U.S. territories (p.7). Through close examination of disputes involving, for example, the legal regime applicable to former Spanish colonies such as Cuba and the Philippines in the aftermath of the Spanish-American war, and the rules applicable to Hawaii during the six decades it was a federal territory and not a state, Raustiala provides a cogent overview of complex Supreme Court doctrine governing these anomalous territories. He demonstrates that historically the federal government “sought the freedom to colonize and control distant lands without bringing along all the complex fetters of American legal rights,” and astutely identifies the underlying – and [*185] continuing – tension between this country’s constitutional heritage and its imperial ambitions (p.61).

Raustiala’s intriguing claims seem to explain many efforts to give extraterritorial effect to U.S. law in some cases, and to limit the application of U.S. law in others. However, some of the book’s arguments may strike some as overbroad. For example, while it is true that some extraterritorial assertions of legal authority seem designed to flatten differences, other times the extraterritorial extension of U.S. legal authority seems intended to create or entrench, rather than minimize, legal difference. Consider the creation of extraterritorial U.S. courts in China and elsewhere; these efforts seem designed to entrench differences between the legal regimes of the U.S. and the host state. Similarly, the frequent use of “status of forces agreements,” which provide that U.S. forces based abroad (as well as their dependents and civilian workers) will be largely subject to U.S. law, rather than local law (pp.21-22, 138-40), also seems designed to create rather than flatten legal differences. But this critique serves mainly to underscore the ambition of the volume under review, and should not detract from Raustiala’s impressive and accessible analysis of a series of complex legal doctrines involving the links between territoriality and law.

Raustiala’s methodological approach is as interesting and notable as its substantive claims. The book’s focus and modes of argumentation cross several disciplinary divides and DOES THE CONSTITUTION FOLLOW THE FLAG? fluidly mixes history, legal analysis and international relations theory. The volume’s methodological eclecticism provides a useful lens into issues raised by cross- and inter-disciplinary approaches to legal phenomena.

Consider, for example, Raustiala’s treatment of legal materials. Although the book devotes substantial attention to the doctrinal analysis of judicial opinions, it also frequently treats legal materials as if they were the sorts of materials studied in other disciplines. Thus, DOES THE CONSTITUTION FOLLOW THE FLAG? sometimes treats judicial opinions as texts that usefully reveal important ideological assumptions and political controversies associated with particular time periods. In this way, DOES THE CONSTITUTION FOLLOW THE FLAG? reminds us that in deciding concrete legal controversies, judges are not disembodied legal philosophers, but draw on tacit assumptions drawn from the larger culture. By contextualizing constitutional controversies – i.e., by turning to history and politics – DOES THE CONSTITUTION FOLLOW THE FLAG? helps to illuminate those underlying assumptions.

No doubt, the choice of objects to explore – Supreme Court opinions – may betray the legal scholar’s typical focus upon the work of courts, but readers will benefit from observing how Raustiala uses these opinions in ways that legal scholars do not often use judicial writings. Moreover, like much interdisciplinary and cross-disciplinary work, DOES THE CONSTITUTION FOLLOW THE FLAG? attempts to explain questions central to legal thought by means of information and theories drawn from cognate disciplines. Hence, [*186] the volume invites us to reconsider the range of materials and types of logic that can be brought to bear on legal issues, and generates insights that would not be available by a methodology that remained firmly rooted within conventional legal analysis.

Finally, DOES THE CONSTITUTION FOLLOW THE FLAG’s approach differs from much interdisciplinary work by legal scholars in that it does not entail the straightforward adoption and application of methods from neighboring disciplines. Rather, the book demonstrates that good cross-disciplinary work is more creative and synthetic than it is mechanical, more art than science. Hence, the text does much more than teach us about an important feature of U.S. constitutional jurisprudence. By way of example DOES THE CONSTITUTION FOLLOW THE FLAG? can help open space for future efforts by other scholars to productively navigate across disciplinary divides. For all of these reasons, we should welcome Raustiala’s attempt to cross disciplinary boundaries and, in so doing, enrich our understanding of the important legal phenomena that are the focus of his inquiry.

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