In a sense, passing this amendment against flag-burning would desecrate the Constitution … The uneven erosion of territoriality Nevertheless, some of the language in Reid is so sweeping that it strongly suggests an extension to non-citizens. The Odah decision discussed above - denying the writ of habeas corpus to those on Guantanamo - continues this line of thought. The book includes the vivid keynote address delivered by Judge Juan R. Torruella of the United States Court of Appeals for the First Circuit, as well as other chapters based on presentations from the conference. FBI agents interrogate suspects in Africa; U.S. drug officers collaborate with colleagues in Mexico; and antitrust officials prosecute cartels in Europe. } This meant that, when a new Congress was elected in November, it did not come into office until the following March, with a "lame duck" Congress convening in the interim. For incorporated territories, the Bill of Rights and other constitutional limitations would apply in the usual way. Older precedents suggest that the Constitution itself would not limit the actions of the U.S.. var query = window.location.search.substring(1); The Constitution is silent on the American flag. These ar… In particular, the notion that the U.S.--which prides itself on the rule of law--can act unfettered by any constitutional consideration simply because it acts extraterritorially is in tension with the core principles of limited government that our nation was founded upon. |, The Harvard University Press Blog brings you books, ideas, and news from, Reconsidering the Insular Cases: The Past and Future of the American Empire, Harvard Law School’s Human Rights Program, Abbott Lawrence Lowell in an article in the, Q&A with T. H. Breen, author of The Will of the People: The Revolutionary Birth of America, “Everything I Wanted”: Black Women Listeners and the High Fidelity Culture of Taste-Making, On the Bicentennial of the Greek Revolution, International Women’s Day 2021: Women You Should Know About, Q&A with Jacqueline Mitton, coauthor of Vera Rubin: A Life, News from the University of Georgia Press, North Philly Notes (Temple University Press), There’s a Hole in the Bucket (University of Alberta Press). Its manufacturing standards are detailed in Executive Order 10834 If the Constitution does not specifically give a power to the federal government, the power is left to the states. Yet one thing is clear: in a globalizing and dangerous world, we will be forced to consider the connection between law and geography again and again. The ruling was pithily summed up by then-Secretary of War Elihu Root: "the Constitution indeed follows the flag, but it doesn't quite catch up." Moreover, the question of the Constitution's extraterritorial reach itself is perhaps misleading. At the time, no one thought Puerto Rico or the Philippines could ever become a state–they were too different racially, socially, economically. She said publicly to push back all Trump administration officials that were "seen in a public space" Spotted can mean seen or found when in context. The War on Terror: Do Combatants Have Any Constitutional Rights? I am not sure what you mean by "follow the flag" . Nonetheless, German and Japanese law, with some exceptions, continued to remain in force, and the U.S. Constitution was not generally considered relevant to the occupation. Does the Constitution follow the flag? One hopes such questions will not be put to the test. Circuit faced the question of whether citizens of Australia, Kuwait, and Britain captured in Afghanistan and detained at the U.S. base in Guantanamo, Cuba have a legal right to challenge their detention. When legal rules have imposed injustice, it becomes necessary to contemplate both how the rules could be reformed and what additional measures should be taken in response to the injustice. | | The fact that the detainees are non-citizens was not crucial to the decision: non-citizens in the U.S. enjoy many of the same constitutional rights that citizens do. The ruling was pithily summed up by then-Secretary of War Elihu Root: "the Constitution indeed follows the flag, but it doesn't quite catch up." It is also a highly compelling work of intellectual … Does the Constitution Follow the Flag? Yes, the flag … Does the Constitution Follow the Flag? It is also a highly compelling work of intellectual … 26 of 26 April, 2001, the administration of this Act has been assigned to the Minister for Justice and Constitutional Development. Put simply, Odah and similar precedents holding the base on Guantanamo to be the equivalent of a foreign country ought to be overruled. Does the Constitution Follow the Flag? Why does geography make a difference for what legal rules apply? Just how weak are the constraints with respect to issues that have arisen in the war on terror? The Upshot of Mixed Precedents on the Constitution's Reach. A war paradigm rather than a criminal justice paradigm provides a very different set of legal rules. Does the Constitution Follow the Flag? is a book about the way that geography shapes legal rules and understandings—and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of American law. determining that the US Constitution does not apply fully to territories acquired through conquest after the Spanish-American War and Does the Constitution Follow Flag: The Evolution of Territoriality in American Law: Raustiala: Amazon.com.au: Books As the war on terror makes clear, the U.S. will act abroad--even rule abroad--when necessary. It continues to provide the foundation for governing inhabited territories and small islands without permanent populations. Importantly, these prohibitions apply whether the occupation is deemed "civil" or "military"--a distinction that is currently being debated within the U.S. government. And thus Does the Constitution Follow the Flag? A doctrine that produces such effects must be continually reexamined, and that is why the Human Rights Program at Harvard Law School is publishing this volume. What about other actions of the U.S. in postwar Iraq, however? First, international law itself - through the Geneva Conventions and the earlier Hague Conventions, as well as customary law, prohibits a range of actions by "belligerent occupiers" against civilians. In a globalizing world, the U.S. frequently acts abroad. While the government argued that the obligation to provide such warnings would hobble law enforcement, the court found otherwise. Originally, the Constitution provided that the annual meeting was to be on the first Monday in December unless otherwise provided by law. The Evolution of Territoriality in American Law Kal Raustiala. The proposed amendment is: Yes, because the constitution is the foundation for a country and the rights and freedoms of its citizens, whereas the flag is only a symbol of that country. Second, as a matter of domestic law, including the U.S. Constitution, it is clearly constitutional for the U.S. to establish an interim government and courts in Iraq, such as military commissions. If not, do they operate differently … It is my hope and plan to cover developments in both the law and academia, by reviewing cases and interesting pieces of scholarship that shed light on this question, while also providing my own thoughts and insights, … In neither case did the U.S. purport to annex the territories concerned. The constitution declared Norway to be an independent kingdom in an attempt to avoid being ceded to Sweden after Denmark–Norway 's devastating defeat in the Napoleonic Wars . Each alternative has disadvantages and advantages in relation to the others and to the current status quo. Intraterritoriality is in a sense a mirror of extraterritoriality. Cuban sovereignty over Guantanamo is formal at best. Does the Constitution Follow the Flag? The Constitution should apply fully and completely wherever the U.S. is sovereign. By moving the beginning of the president's new term from March 4 to … | The hardest questions of all are raised by the possible long-term occupation of Iraq. Microsoft Edge. In short, the role of territory in our legal system is unclear, or at least inconsistent. Google Chrome, Circuit's decision vindicates the Administration's policy of detaining suspected Al Qaeda members outside U.S. borders - in the sense that it proves that, as the Administration thought, it has gained a legal advantage from doing so. 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. The Constitution of Norway was signed at Eidsvoll on 17 May 1814. The Allies did claim, however, that German sovereignty had been extinguished in the war. For most of our history, the prevailing belief was that U.S. law did not have any force outside the U.S.. The doctrine is peripheral to the interests of most constitutional law scholars, but highly consequential for the four million people who live in Puerto Rico, the US Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands. Border Games: A Decision Explores Rights at Guantanamo. While this is an evolving area of the law, it is plain that U.S. agents are even less restrained when they act against enemy combatants outside U.S. territory. While it’s less used in the Patriot, Constitutionalist and Second Amendment movements than other flags like the the Gadsden Flag, or the Gonzales Flag, it’s much easier to find at a store due to its resemblance to the United States flag. Kal Raustiala is a Visiting Professor at Princeton University and teaches international law at UCLA Law School, Begin typing to search, use arrow keys to navigate, use enter to select. moves inexorably to the controversial questions at the heart of America’s policies in the war on terror. Ex: "When I was driving I spotted a puppy among the trash cans"|it means "seen in a public area or location" Internet Explorer 11 is no longer supported. Most people intuitively understand that location affects constitutional … The Supreme Court majority gave a new answer: not entirely. "Does the Constitution Follow the Flag? As several authors observe, the Commonwealth of Puerto Rico has suffered severe economic distress in recent years, and its recovery efforts have been hindered by the limits on its political power. The Supreme Court ruled, in 1990, that laws against desecrating flag are unconstitutional. As is true with respect to many questions of foreign relations law, the leading precedents here are old, and they reflect often outdated conceptions of law and politics. The Bennington Flag is a pre-Constitutional flag with a great resemblance to the national flag we have today. Firefox, or The year 1957 marked a watershed in our conception of legal geography. What was crucial was the fact that Guantanamo is technically Cuban, rather than U.S., soil. Its general design is codified in law under Title 4 of the United States Code, which governs the official symbols of the United States and the government. The flag does not have the Union badge of Norway and Sweden, the so-called sildesalaten (Herring salad). The federal government has taken steps to reform territorial relations on a noncolonial basis, but relics of colonialism remain. ", Technically, the Court's holding was limited to citizens alone. Our nation's founders declared their independence on July 4, 1776, to break free of the tyranny of a nation that denied them the civil liberties that they believed all people were … Until 1943, the U.S. even had a special District Court for China, which answered to the U.S. Court of Appeals for the Ninth Circuit. According to this logic, non-citizens abroad lack any constitutional rights, even when they confront the U.S. government there. : The Evolution of Territoriality in American Law: Raustiala, Professor of Law and Director of the Ronald W Burkle Center for International Relations Kal: Amazon.com.mx: Libros is a brilliant, wide-ranging and timely book. The D.C. The Constitution is silent on the American flag. The first flag was designed by Francis Hopkins for the Navy in 1775. Given the realities of Guantanamo, U.S. courts ought to treat Guantanamo as if it were U.S. soil. The Ohio state flag, in the shape of a burgee, is the only one that is not a rectangle in all of the United States According to John Eisenmann, who designed the flag in … For instance, would it constrain the U.S. if we occupy Iraq after the war ends? Could it subject Iraqi civilians to arbitrary punishments, without giving them the benefits of notice and a hearing so that they could present their own version of events? Courts started to enforce domestic statutes extraterritorially, especially in regulatory areas such as antitrust. Indeed, in 1891 the Supreme Court held that the Bill of Rights did not apply at all when the U.S. government acted against citizens abroad. All rights reserved. For instance, could the U.S. occupation administration constitutionally treat some races or religions in Iraq differently than others - for instance, privileging Shiites when distributing food or shelter? The Constitution certainly applies globally. Within the states constitutional rights apply fully, but throughout much of American history only a limited set of rights have applied in other U.S. territories. } else if ( query != "pintix=1" ) { In his Introduction to the book, excerpted below, Harvard Law School professor Gerald L. Neuman further elaborates on the need to continually question a doctrine that raises crucial issues of both constitutional law and human rights. Article I, Section 1 also requires that Congress be bicameral, that is, it should be divided into two houses, the Senate and the House of Representatives. The flag is a symbol, used very rarely in an act of political expression when it is burned or damaged. Whether you think the flag is sacred or not, freedom of expression is more sacred. The four dissenters protested in vain that the majority’s ruling departed from prior practice and constitutional values. Law enforcement presents harder questions. However, they continue to enjoy constitutional rights within U.S. borders, even when here illegally. In the wake of the Spanish-American War and the transfer of several of Spain’s imperial possessions, the metaphorically expressed question “Does the Constitution follow the flag?” became newly urgent. These strategies are admission to statehood, full independence, and the less widely known alternative of independence accompanied by a compact (i.e., a treaty) of free association. They, too, are protected by the Constitution when they confront the U.S. government within the U.S.; why should its protections be stripped away when they confront the U.S. government abroad, just because they "happen to be in another land?". The path forward is complicated, however, by disagreements over the direction that reform should take and by the need to secure federal approval. Surely the Constitution provides some minimal restraint in these situations, which implicate fundamental rights. The term “Insular Cases” may refer either to the original set of decisions from 1901 or to the entire series of decisions from Downes v. Bidwell (1901) to Balzac v. Porto Rico (1922) that solidified this jurisprudence. | Last month, in Odah v. U.S. the U.S. Court of Appeals for the D.C. Its general design is codified in law under Title 4 of the United States Code, which governs the official symbols of the United States and the government. The Geneva Conventions also grant various rights to occupied civilians, including the right to an attorney if charged with a crime. Accordingly, the court in Odah acknowledged that the relief sought - a writ of habeas corpus - was indeed available to non-citizens. As Juan R. Torruella, Puerto Rico-born Judge of the US Court of Appeals for the First Circuit expressed in his conference keynote—included in the printed volume—“the Insular Cases represent classic Plessy v. Ferguson legal doctrine and thought that should be eradicated from present-day constitutional reasoning.”. "Does the Constitution Follow the Flag? Thus, residents of Puerto Rico, though U.S. citizens, are not as a constitutional matter protected by the full Bill of Rights. Courts of this period also ruled that U.S. statutes did not apply outside our borders. The Fundamental Duties were incorporated in Part IV-A of the Constitution by the Constitution 42nd Amendment Act, 1976, during Emergency under Indira Gandhi’s government. Do some U.S. laws stop at the water’s edge? Many statutes are routinely applied to conduct abroad. That year, the Supreme Court's decision in Reid v. Covert expressly overturned the rule that the Bill of Rights did not apply abroad, calling it a relic from another era. (0) The Bush administration relied on precedents of extraterritoriality, including Eisentrager, to curtail the rights of noncitizens. Does the Constitution Follow the Flag? Display or use of flags, guidons, and streamers or replicas thereof, … : The Evolution of Territoriality in American Law (English Edition) eBook: Raustiala, Kal: Amazon.de: Kindle-Shop The doctrine of the Insular Cases has never been overruled, despite the tectonic shifts in constitutional law, international law, and human rights conceptions that have intervened since 1901. But where does the reach of that law end? This is the quintessential question this blog seeks to answer. Existing precedents suggest that they are. There are no simple answers to this question. ACT To introduce a new Constitution for the Republic of South Africa and to provide for matters incidental thereto. The Flag Desecration Amendment (often referred to as the Flag-burning Amendment) is an American proposed law, in the form of constitutional amendment, that would allow the U.S. Congress to prohibit by statute and provide punishment for the physical "desecration" of the flag of the United States.The concept of flag desecration continues to provoke a heated debate … White thereby adopted a distinction that had been suggested by the political scientist Abbott Lawrence Lowell in an article in the Harvard Law Review, although White added some elements of his own in elaborating the consequences. Some commentators, as well as some courts, have suggested that the answer is that basic constitutional protections are completely inapplicable to non-citizens abroad. While the Constitution cannot shackle U.S. forces in a war, if the U.S. does occupy and govern Iraq, are there any legal restrictions on what the U.S. may do? The applicability of a constitutional limitation to a particular territory would depend on the situation of the territory and its relations to the United States. The increasing prevalence of these situations ought to make us rethink the constitutional significance of territory. Yet it seems difficult to believe today that there are no constitutional restraints on U.S. actions abroad in a country it is occupying and essentially governing. The connection between geography and the law is something few of us think about, though our legal system is replete with implicit assumptions about territory. : The Evolution of Territoriality in American Law (English Edition) eBook: Raustiala, Kal: Amazon.nl: Kindle Store During the Twentieth Century, the view that U.S. law stopped at the water's edge eroded. Recently, in the case of U.S. v. Bin Laden, a federal court said it must. In retrospect, the crucial opinion was the concurrence of Justice Edward Douglass White. But that legal advantage is misguided - in reality, Guantanamo is U.S. territory for all relevant purposes. What if, however, the U.S. pursues suspected terrorists abroad not as criminals. Is it appropriate for the government to act unfettered by the Bill of Rights simply because it chooses to place detainees 90 miles off Florida, rather than in Florida itself? Reid declared that "when the Government reaches out to punish a citizen who is abroad, the shield [of] the Bill of Rights...should not be stripped away just because he happens to be in another land. The current war magnifies the stakes, both for our security and for our constitutional tradition. Rethinking the role of territory in the law is not easy, but a few considerations are germane. In the years that followed, White’s concurring analysis gained the support of a majority and then, after the death of the steadfast dissenter John Marshall Harlan, unanimity. var e=document.createElement('script');e.setAttribute('type','text/javascript');e.setAttribute('charset','UTF-8');e.setAttribute('src','https://static.typepad.com/.shared//js/pinmarklet.js?r='+Math.random()*99999999);document.body.appendChild(e); Constitutional Amendendment Issue. And it concluded that the detainees could not invoke the writ. Does the Constitution Follow the Flag? (The defendants involved in the ruling did not include Osama Bin Laden, as the case name might suggest; rather, they were two alleged participants in bombings of U.S. embassies in Kenya and East Africa.). For this reason, the court could not "see why, or how, the writ may be made available to aliens abroad when basic constitutional protections are not." These prohibitions are rough equivalents to the U.S. Constitution's Ex Post Facto Clauses, Takings Clause, and Free Exercise Clause. The Court held that Puerto Rico was "foreign in a domestic sense" and thus only some constitutional provisions applied. Should the FBI provide Miranda warnings when it interrogates criminal suspects abroad? } else { is a brilliant, wide-ranging and timely book. On Thursday May 25th, 1995, a proposed constitutional amendment that would make it illegal to burn the American flag passed its first test. The U.S. leases Guantanamo from Cuba, but does so pursuant to an agreement that Cuba cannot terminate without US consent. June 06, 2018 / Alan Mygatt-Tauber. On the one hand, the basic powers granted by the Constitution are unaffected by geography. The book results from a conference that Tomiko Brown-Nagin and I organized at the initiative of Dean Martha Minow, which took place on February 19, 2014. If the United States acquired a new territory and did not admit it as a state, then Congress could choose whether to “incorporate” the territory into the United States as an integral part or to treat it merely as a territory appurtenant to the United States. It does not impose any penalties, ... You are under military law and not constitutional law, or common law, or civil law, or statute law. Its ruling, in my view, was reasonable. And citizens are clearly protected by the Bill of Rights wherever they go in the world. The Constitution at 231: What does ‘We the People’ really mean? Our Constitution has what might be called a sacred purpose, to protect freedom of expression. (In the U.S. Constitution, this right is contained in the Sixth Amendment.). The US Supreme Court’s decisions in the Insular Cases of 1901 provided the legal framework for the governance of a colonial empire in the Atlantic and the Pacific, loosening the constraints of constitutional principle in order to facilitate rule over the subjected areas and their inhabitants. It affects their civil rights directly, and it affects all their rights by limiting their political rights, which in turn reduces their ability to influence the laws that regulate them. We recommend using Perhaps the most important cases relating to the territorial reach of the law emerged from the Spanish-American War. Constitution Seventeenth Amendment Act of 2012 In terms of Proclamation No. Does the Constitution Follow the Flag? But where do rules about territorial legal limits such as this one come from? But that answer is clearly at odds with the best spirit of our constitutional tradition. For unincorporated territories, only “fundamental” restrictions on government power would apply. In general, and where practicable, foreign citizens whom we subject to the coercive force of our criminal law ought to receive the basic protection of our constitution, with respect to the rights of criminal suspects and defendants, as well. A very different set of legal geography holding the base on Guantanamo continues... Territories, the view that U.S. law was limited to citizens alone that would not limit the actions the. To curtail the rights of noncitizens where do rules about territorial legal limits such as one! Few considerations are germane Justice paradigm provides a very different set of rules. Have arisen in the U.S. if we occupy Iraq after the war rarely in an act political. Would hobble law enforcement, the Court found otherwise easy, but a few are! 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