Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law

The Bush Administration has notoriously argued that detainees at Guantanamo do not enjoy constitutional rights because they are held outside American borders. But where do rules about territorial legal limits such as this one come from? Why does geography make a difference for what legal rules apply? Most people intuitively understand that location affects constitutional rights, but the legal and political basis for territorial jurisdiction is poorly understood. In this novel and accessible treatment of territoriality in American law and foreign policy, Kal Raustiala begins by tracing the history of the subject from its origins in post-revolutionary America to the Indian wars and overseas imperialism of the 19th century. He then takes the reader through the Cold War and the globalization era before closing with a powerful explanation of America's attempt to increase its extraterritorial power in the post-9/11 world. As American power has grown, our understanding of extraterritorial legal rights has expanded too, and Raustiala illuminates why America's assumptions about sovereignty and territory have changed. Throughout, he focuses on how the legal limits of territorial sovereignty have diminished to accommodate the expanding American empire, and addresses how such limits ought to look in the wake of Iraq, Afghanistan, and the war on terror. A timely and engaging narrative, Does the Constitution Follow the Flag? will change how we think about American territory, American law, and-ultimately-the changing nature of American power.

"Raustiala has written a masterful account of the Untied States' centuries-long legal and political struggle over extraterritoriality..The book follows the many waves of debate over territory and law from the American Revolution to the post-World War II decades...Raustiala wonderfully illuminates the history and politics behind these controversies."--Foreign Affairs

"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...Raustiala skillfully weaves doctrinal analysis of Supreme Court opinions with arguments drawn from "second image reversed" international relations theory...a welcome and important contribution to the literature that explores the links between territory, sovereignty and legal authority."--Law and Politics Book Review

"Raustiala has produced an insightful, wonderfully written account of the recent history of one of our important legal institutions: the territorial state. If we are lucky, his first-rate book will touch off further scholarship on the history of the territorial state."--Law and History Review

"Valuable."--The New Republic

"Kal Raustiala's 'Does the Constitution Follow the Flag?' turns some of the crucial debates of the Bush years into a guide to a new era in law and foreign policy. He examines the old fashioned notions of borders and boundaries in the context of a changed and changing world, and asks all the right questions about what they will mean in the future."--Jeffrey Toobin, author of The Nine

"As Kal Raustiala shows in his marvelous new book, Elihu Root was correct a century ago when he quipped that 'the Constitution indeed follows the flag, but it doesn't quite catch up.' Does the Constitution Follow the Flag? shows in fascinating detail how politics and law interact in shaping legal constraints on the conduct of American foreign policy."--Robert O. Keohane, Professor of International Affairs, Princeton University

"This book ties together many different historical strands of our extraterritorial Constitution in a compelling, remarkably accessible, and genuinely illuminating narrative."--Jack Goldsmith, author of The Terror Presidency

"As an act both of dispassionate scholarship and passionate citizenship, Does the Constitution Follow the Flag? compels attention. Its rich account of the outsized reach of American law is informed by a deep understanding of history, jurisprudence, and global affairs. Illuminating and incisive, the book's riveting account of territoriality and law in American political development could not be more timely."--Ira Katznelson, author of When Affirmative Action Was White

"Does the Constitution Follow the Flag? is a brilliant, wide-ranging and timely book. In a world where supra-national forces, from global markets and mass migration, to international terrorist organizations, present an ever-increasingly challenge to the limits of the law, it shows just what territorial sovereignty is, and why it matters. It is also a highly compelling work of intellectual and political history."--Anthony Pagden, author of Worlds at War

Kal Raustiala writes and teaches in the areas of international law and international relations. He holds a joint appointment between the UCLA Law School and the UCLA International Institute, where he teaches in the Program on Global Studies. He is also director of the UCLA Ronald W. Burkle Center for International Relations.

Preface

1. Territoriality in American Law

2. Territory and the Republic

3. The Imperial Constitution

4. The Fall and Rise of Extraterritoriality

5. America Abroad

6. The Long Arm of the Law

7. Offshoring the War on Terror

8. Territoriality's Evolution