Constitutional displacement.

Author:Zick, Timothy

This Article examines the intersection between territory and constitutional liberty. Territoriality, as defined by Robert Sack, is the attempt to affect, influence, or control people, phenomena, and relationships by delimiting and asserting control over a geographic area. Territoriality affects constitutional liberty in profound ways. These effects have been apparent in certain infamous historical episodes, including the territoriality of racial segregation, the geographic exclusion and internment of Japanese--Americans during World War II, early state migratory exclusions, and isolation of the sick and mentally ill. Today, governments are resorting to territorial restrictions in an increasing number of circumstances, including detention of enemy combatants at Guantanamo Bay, attempted expulsion of illegal immigrants from local communities, banishment of convicted sex offenders from vast geographic areas, exclusion of homeless persons from public spaces, and proposed isolation and quarantine of victims of pandemics and bio--terrorist attacks. These and other measures have produced what the Article refers to as Geographies of Justice, Membership, Punishment, Purification, and Contagion. Within these geographies, persons and groups are subject to constitutional displacement--the territorial restriction or denial of fundamental liberties. The displacements examined in the Article substantially restrict or deny basic liberties including access to justice, migration, movement, communal and political membership, and the ability to be present in places of one's own choosing. The Article demonstrates that the Constitution provides less than robust protection from certain forms of territorial displacement. Analyzing the Constitution itself as a spatial framework, one that relies upon place, geography, and territory for various purposes, the Article shows that displacement arises from extraterritorial and intra--territorial "spatial gaps" in text and structure. The Article proposes that these spatial gaps be narrowed or closed.

TABLE OF CONTENTS I. INTRODUCTION II. TERRITORIALITY, CONSTITUTION, AND GOVERNANCE A. Place, Geography, and Territory B. Territoriality's Primary Constitutive Functions 1. Territory, Sovereignty, and Governance 2. Territory and Constitutional Domain 3. Territoriality and Political Community 4. Territoriality, Presence, and Privileges 5. Territoriality and Police Powers III. GEOGRAPHIES OF DISPLACEMENT A. Some Antecedent Territorial Measures 1. Racial Segregation and "Hyper--Territoriality" 2. Territory, Security and Loyalty 3. Migration and Membership 4. Early Urban Purification Measures 5. Controlling Contagion Territorially B. Five Contemporary Geographies of Displacement 1. The Geography of Justice 2. The Geography of Membership 3. The Geography of Punishment 4. The Geography of Purification 5. The Geography of Contagion IV. CONSTITUTIONAL DISPLACEMENT AND SPATIAL GAPS A. Constitutional Displacement B. External and Internal Spatial Gaps C. Narrowing or Closing Constitutional Gaps 1. De--Spatializing Justice 2. The Spatialization of Domestic Liberty V. CONCLUSION I. INTRODUCTION

In ways not always fully appreciated, constitutional liberty and spatiality are inextricably linked. The geography of cyberspace does not currently permit much in the way of official spatial regulation. (1) On firmer ground, however, spatiality remains a powerful regulatory tool. Geographic and territorial borders determine membership in polities, such that mere physical presence within a territory gives rise to certain rights and privileges. Expulsion or removal extinguishes these claims. Spatial restrictions on ingress or egress affect locomotion, mobility, and migration. Restrictions on the places or territories in which a person may reside, work, or recreate affect fundamental interests in choice of community, pursuit of livelihood, and the basic dignity associated with freedom of movement. Spatial restrictions also affect liberties we do not routinely associate with place or geography, including access to judicial process, equality, and rights of association and expression. (2) In many respects, there is no more fundamental liberty than the freedom to choose one's own place. (3) The loss of that freedom can result in severe forms of not only personal, but constitutional, displacement.

Spatiality is a useful, necessary, and often legitimate organizing and constituting principle. Governments rely upon borders and boundaries in carrying out a host of ordinary functions, including defense of sovereignty, distribution of privileges and benefits, and maintenance of public order. (4) But as we shall see, governmental control over and manipulation of place, geography, and territory can be very dangerous to individual liberty. (5)

The geographer Robert Sack refers to the strategic use of space as territoriality, which he defines as "the attempt by an individual or group to affect, influence, or control people, phenomena, and relationships, by delimiting and asserting control over a geographic area." (6) Working from that basic definition, this Article examines the intersection of territoriality and liberty, and the effect of that intersection on certain persons and groups--namely, war on terrorism detainees, undocumented and other immigrants, released sex offenders, the destitute and homeless, and those who are either afflicted with a contagious disease or believed to be so. These illustrative examples will show how governments use territory to map and enforce distinct legal geographies, both within and outside the territorial boundaries of the United States. They will demonstrate how the combination of laws, customs, and physical borders creates and shapes what the Article describes as distinct "Geographies of Displacement," which in turn affect the exercise of fundamental personal liberties. (7)

By manipulating territory and moving enemy detainees just outside the geographic boundaries of the United States, the United States has been able for some time to effectively suspend the rule of law with regard to a class of detainees who have been designated "enemy combatants." (8) The Supreme Court partially closed this particular territorial gap, at least as a matter of constitutional interpretation, in the recent decisions in Boumediene v. Bush and Al Odah v. United States. (9) There the Court held that aliens detained in Guantanamo Bay, Cuba, a territory over which the United States exercises complete jurisdiction and control but not legal sovereignty, are entitled to the protections of the writ of habeas corpus. (10) Although some of the majority opinion's statements are open to broad interpretations, the Court did not directly address the extraterritorial reach of the Constitution in other territories or contexts. (11) Guantanamo Bay, while certainly the most visible territorial manipulation, is not the only "legal black hole" (12) the government has sought to create by manipulating territory. "Black sites" and destinations of "extraordinary rendition" have also been used to situate detainees outside the protection of legal processes. (13) Primarily as a result of the war on terrorism, a new Geography of Justice has taken shape. (14)

Immigration policies are by their very nature territorial; among other things, they determine rightful presence within a particular territory. Here, too, territorial tactics are increasingly prevalent. Congress has appropriated funds to supplement existing federal immigration laws with a massive steel fence along the Mexican border. (15) This grand architecture of exclusion will physically and territorially separate America from its southern neighbors. As well, federal immigration officials have been redefining the very notion of the "border," in some cases moving the legal border into areas within the United States. (16) Meanwhile, numerous states and localities have enacted their own territorial exclusions, ostensibly to combat unlawful immigration. (17) Some have threatened to enforce trespassing laws against illegal immigrants, thus criminalizing their mere presence in a territory. (18) Other localities have sought to expel day laborers from public areas like street corners and parking lots, through anti--loitering laws and official harassment. (19) A host of local immigration measures--supplemented or in some cases supplanted by recent aggressive federal enforcement raids--have sought to prohibit illegal immigrants from working or living in certain territories and communities. (20) These laws impose fines on landlords who rent to undocumented aliens, and penalize businesses that employ workers without proper proof of immigration status. (21) Through such measures, municipalities seek to create undocumented--immigrant--free zones. Owing to their breadth, however, some of these measures may operate to displace legal resident aliens as well as those unlawfully present. Across the United States and at its fortified borders, a new Geography of Membership has taken shape.

Among the recently displaced, no group of persons is more reviled than convicted sex offenders. Once released into the community, they face an intricate system of territorial restrictions designed to exclude them from entire communities--sometimes great portions of entire states. (22) State and local laws forbidding convicted sex offenders from living within a specified distance of schools, churches, bus stops, and other "anchor points" effectively preclude them from living in many of a state's most populous areas. (23) The effect of such measures on individual liberty and human dignity can be profound. (24) Banishment--by--exclusion, or "internal exile," prevents convicted offenders (regardless, in many cases, of the specific nature of their offenses) from living with their families, attending their churches, taking part in public recreation, or maintaining their livelihoods. (25) Other, less systematic...

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