APPLYING THE U.S. CONSTITUTION ABROAD, FROM THE ERA OF THE U.S. FOUNDING TO THE MODERN AGE.

• Author: Veneziano, Alina

TABLE OF CONTENTS Introduction 604 I. An Analysis of the Jurisprudence on the Extraterritoriality 608 of Constitutional Provisions A. The Supreme Court's Early Jurisprudence on 610 Extraterritoriality B. World War II and Changes in Extraterritorial 612 Jurisprudence C. Fourth Amendment and Fifth Amendment Application in 615 Extraterritorial Jurisprudence D. The Detainee Cases and Extraterritoriality 618 E. The Territory-Citizenship-Enemy Model 625 II. Approaches to Extraterritorial Extensions of Constitutional 627 Protections A. The Majority, Concurring, and Dissenting Opinions of 627 Verdugo-Urquidez B. Matrix of Possible Situations and Corresponding Outcomes 628 III. The Propriety of, and Basis for, Extending Constitutional 629 Protections IV. Recommendations 632 A. The Proposed Framework for Constitutional Protections 633 B. Reflections on the Proposed Framework and Other 635 Considerations V. Urban Policy: Federal Inaction and the Problems Faced by 637 States and Cities Conclusion 639 INTRODUCTION

With the fixation on geographic borders and the desire to shift and affect jurisdiction in a globalized world, "this sort of reverse forum shopping by governments is much easier than it would have been in the past." (1) One might assume that considerations of race, national origin, or citizenship are inconsequential to the application of the United States government's laws and regulations. However, the geographic reach of the Constitution, extended on the basis of these factors, has long been a debated topic. (2) This debate concerning the extraterritorial (3) reach of U.S. constitutional protections upon foreign nationals have existed throughout U.S. history, in contexts ranging from the Second World War and the Cold War to international drug cartels at the southern U.S. border to the War on Terror. (4) Foreign nationals present in the United States "have been subjected to selective interrogation, registration, detention, and deportation on the basis of their national identity." (5)

The issue for the courts has been whether such constitutional provisions apply in cases where "some of the relevant facts are located outside the territorial borders of the state." (6) While the traditional cannons of interpretation can provide some guidance, case law reveals that the Supreme Court ultimately does not rely on this approach when deciding whether to extend the reach of the Constitution beyond the United States, because of the unique nature of constitutional questions. (7) For instance, statutes can be more easily amended if the Supreme Court decides an issue contrary to congressional intent, whereas constitutional provisions are "extremely difficult to amend." (8) Therefore, the judiciary examines them differently.

U.S. courts are still struggling to answer the broader question of how far constitutional protections should extend--a question with tremendous historical significance. During the Civil War, for instance, constitutional protections did not extend to military enemies, leaving courts closed to enemy combatants during and after the war. (9) This meant that all persons residing in the enemy nations "were out of the protection of the Constitution, no matter their citizenship." (10) Thus, contrary to popular belief, citizenship was not the determining factor; rather, determinations were made based on "formal, categorical distinctions between domestic and foreign territory, war and peace, resident and nonresident, enemy fighter and not, and zone of battle and elsewhere." (11) Nor did the Constitution extend protections to non-U.S. nationals outside the sovereignty of the United States during the nineteenth century. (12) Specifically, during the nineteenth century, the United States embraced an approach of strict territoriality. (13) Courts treated "[t]erritorial location and domicile" as more determinative than citizenship when extending protections. (14) This notion, however, was slowly abandoned and is now markedly different in the twenty-first century.

Today, U.S. nationals within the United States--citizens at home--enjoy the full protections of the Constitution. (15) Outside the United States, however, U.S. nationals in foreign territories--citizens abroad--enjoy limited constitutional protections due to certain exigencies or limited government power. (16) More complex is the stance concerning foreign nationals situated domestically or abroad. Within the United States, foreign nationals--aliens within the United States--the Constitution provides certain protections, such as the Fourteenth Amendment guarantee of equal protection. (17) Outside the United States, however, U.S. law generally does not protect foreign nationals in a foreign state--aliens outside the United States--from U.S. conduct abroad. (18) Common justifications for this distinction are based on assertions that foreign nationals "do not deserve the same rights as American citizens," "that citizenship makes a difference," and the "deeply ambivalent approach of the Supreme Court, an ambivalence matched only by the alternately xenophobic and xenophilic attitude of the American public toward immigrants." (19)

While it is clear that those physically present within the United States are protected, the protections afforded to those with little or no contact with U.S. territory are less clear, particularly where situations involve regulating U.S. government actions, or protecting foreign nationals outside the United States. (20) It is not surprising that the general public presumes that non-citizens do not share the same rights as citizens. (21) After 9/11, such concerns became even more pressing, since the national security of the United States was at stake, and detention schemes and Guantanamo took center stage in national discourse. (22)

If foreign nationals seeking admission to the United States are subject to the complete and plenary power of congressional authority, (23) the critical and complex concern is this: Whether foreigners can be regulated by or assert the protections of the U.S. Constitution when they are not on U.S. soil, but continue to be affected by U.S. conduct or policies abroad. (24) As discussed below, the Supreme Court no longer strictly adheres to the doctrine of territoriality and instead embraces a due process, or functional, approach. (25) Furthermore, increasing U.S. interests in "foreign involvements" and the development of "international protection for human rights" have tipped the scale in favor of providing extended constitutional protections to foreign nationals from U.S. conduct abroad. (26)

This Essay traces case law on the extraterritorial applicability of the U.S. Constitution and criticizes the Supreme Court's failure in the Hernandez decision to dispel inconsistencies and loopholes. In doing so, this Essay sets forth a modified approach that would accomplish the following goals: create a clear standard for lower courts and ensure consistent application; recognize the Executive's legitimate foreign policy and national security objectives; reduce the likelihood of infringing on the sovereignty of foreign governments; and provide fair administration of certain constitutional guarantees to foreigners.

The Essay proceeds in the following manner: Part I analyzes seminal Supreme Court cases adjudicating the scope and extent of the Constitution's protections. This Part also explores trends based on strict territorialism, partial territorialism, citizenship, domestic principles, and national security. Part II summarizes three main approaches that the Supreme Court adopted in these situations and offers a matrix of possible situations considering particular attendant circumstances, such as territoriality and nationality of the claimant. Part III examines how Supreme Court decisions have shaped the position of the United States when deciding the extent of constitutional guarantees. This Part also evaluates the different ways the Supreme Court has prioritized the prongs of territoriality, citizenship, and enemy status in various contexts, and tracks how the law has evolved with respect to the extension of constitutional rights abroad. Part IV recommends that the United States adopt an approach that reconciles the underlying approaches of Verdugo-Urquide's formalism with Boumediend's functionalism. This combined scheme would recognize the distinction between foreign territory and controlled territory, while placing a somewhat lesser emphasis on citizenship and even lesser focus on enemy status. Finally, Part V elaborates upon the urban implications of the Constitution's scope, as well as the problems faced by states when attempting to remedy such inconsistencies.

1. AN ANALYSIS OF THE JURISPRUDENCE ON THE EXTRATERRITORIALITY OF CONSTITUTIONAL PROVISIONS

   This Part examines the different shifts in extraterritoriality jurisprudence and analyzes the changes in the Supreme Court's considerations when determining the allocation of constitutional protections. As will be demonstrated in this Part, Supreme Court jurisprudence has shifted away from a focus on territorialism--basing the extension of rights on the physical location of the non-citizen in relation to the U.S. border--to an approach that foregrounds citizenship and national security concerns.

   Historically, the Supreme Court has used the rationale of presence within geographic localities--such as differences in physicality (high seas), social, or governmental structures--to determine whether to extend provisions of the Constitution to individuals from abroad. (27) Indeed, the Constitution was drafted under the attendant circumstance that it would apply primarily to "territorial nation-states" within the United States. (28) Therefore, the "distinction between being inside and outside the borders of the United States is not a constitutional irrelevancy." (29) The U.S. government has also expressed a heightened interest in regulating the conduct of those...