The Volokh Conspiracy
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Jotwell, a website dedicated to reviewing important new legal scholarship, has posted my review of "Due Process Abroad," an excellent and timely new article by Prof. Nathan Chapman of the University of Georgia. Here's an excerpt from my review:
Do the rights protected by the Constitution constrain United States government actions outside our borders, especially those directed at noncitizens? The longstanding debate over this question has heated up again in recent years. It is one of the issues raised by the litigation over Donald Trump's travel ban executive order. It is also a key element of Hernandez v. Mesa, a case recently addressed by the Supreme Court that raises the question of whether the Fourth Amendment applies to a case where U.S. Border Patrol agents fatally shot a 15-year-old Mexican boy just across the border…
Nathan Chapman's important new article on the application of the Due Process Clause of the Fifth Amendment abroad, is a timely and important contribution to this debate. It compiles extensive evidence indicating that the Clause was originally understood to constrain U.S. government actions outside our territory, regardless of whether the targets are American citizens or not. If so, it may be that other constitutional rights also apply in such situations.
Some scholars have argued that the Due Process Clause applies to U.S. government actions all over the world because the text is phrased in general terms, without territorial limitation. But Chapman is the first to systematically compile originalist evidence defending this position. He considers a variety of federal government law enforcement efforts beyond U.S. borders from the 1790s to the 1820s.
Most of these involved enforcement of federal laws authorized by Congress's Article I power to "define and punish Piracies and Felonies committed on the high Seas." They included efforts to suppress piracy and the slave trade, and catch violators of U.S. tariff and embargo policies….
Pirates may seem quaint or even romantic today. But in the eighteenth and early nineteenth centuries, they were a serious threat to American and European commerce. Suppressing them was a major objective of early American foreign policy. Yet, as Chapman shows, both Congress and the executive branch consistently concluded that pirates could not be detained and punished without being afforded due process of law, including a trial in a regularly constituted federal court….
At least for constitutional originalists, Chapman's findings have substantial implications for the present day. The Due Process Clause indicates that the government may not deprive individuals of "life, liberty, or property, without due process of law." A substantial range of federal government activities abroad do just that. As Chapman explains, they include extraterritorial kidnapping and detention of criminal suspects, shootings by law enforcement officers…, and searches and seizures of property abroad for the purposes of obtaining evidence for prosecution….
Chapman's findings also have potential implications for extraterritorial application of other individual rights outlined in the Constitution. Like the Due Process Clause, most are phrased in general terms, without any territorial limitations, or constraints based on the citizenship of the individuals targeted.
If the Due Process Clause applies to U.S. actions abroad, why not the First Amendment and other parts of the Bill of Rights? If Congress's power to punish crimes on "the high seas" is constrained by individual rights, why not its power over immigration, its power to regulate international commerce, and so on?
I discussed the application of constitutional rights to federal power over immigration in greater detail here.
UPDATE: I am aware there is a problem with the link to the Jotwell website. I am trying to get Jotwell to fix it. Hopefully, they will do so soon.