Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa? Part 2Andrew Kent

This is the second of two posts examining whether the Constitution and Bill of Rights, in their original public meaning, provided protections extraterritorially to citizens or noncitizens.

In Part I, I argued that there are some textual hints that the Constitution has a domestic focus, but that it is not possible to definitively discern the geographic scope of constitutional rights from the bare semantic meaning of the text. It does seem clear, however, that constitutional rights are not reserved for citizens only, unless that word is specifically used to describe the rights holders—which it rarely is.

Context

When very common words are used in the constitutional text—for example, people or person discussed in my earlier post—and thus original semantic meaning cannot be derived from eighteenth century word usage alone, Randy Barnett and other public meaning originalists advise us to look at the "publicly known purpose" for which the provisions were added to the Constitution.

Nothing about the contexts in which the original Constitution or the Bill of Rights were framed and ratified suggests any purpose to protect with constitutional rights noncitizens outside the United States. Certainly many provisions of the Constitution were meant to benefit noncitizens—but when they were in the United States or, if not, under then treaties, the law of nations, statutes, or the common law. Examples include Article III diversity jurisdiction and arising under (treaty) jurisdiction.

Looking at the Bill of Rights specifically, the overriding purpose was to quiet public fears that the new federal government would overreach, harming the liberties of the American people or intruding into areas reserved for the states. And as Leonard Levy relates, James Madison—the primary author of the Bill— stated that in the proposed Bill he “had recommended only the familiar and avoided the controversial. He warned against enumerating anything except ‘simple, acknowledged principles.’" As Justice Robert Jackson wrote, "extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment [at the Founding]. Not one word can be cited."

The Allegiance-Protection Framework

In addition to the purpose and context of the Constitution, the key to understanding how the geographic or person domain of the Constitution was originally understood is a common law and political framework that underlay the document, the protection-allegiance framework. As Philip Hamburger has shown, and I have discussed at length (here, here, here),  at the Founding, protection of the laws was understood to be stand in a reciprocal relationship with allegiance to the government. Citizens or subjects owed allegiance and were protected by the courts and the law of the land, whether home or abroad. Noncitizens or non-subjects when visiting or residing in Britain or America owed a local or temporary allegiance to the government, and so they temporarily had corresponding protection. But that protection disappeared when the obligation of allegiance did—when the foreigner left the country. As Blackstone put it, “as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.” At common law, alien enemies—nationals of a country with which Britain was at war—were excluded from protection of the law even if they were within the country.

There is plenty of evidence showing that statesmen and constitution-drafters of the Founding era considered the allegiance-protection framework to be fundamental. Hamburger shows how the framework appeared in the Declaration of Independence, important resolves of the Continental Congress, and state constitutions. There is also plenty of evidence showing that this common law allegiance-protection framework was understood to qualify and limit the broad text of constitutional rights, but this evidence is found in the post-ratification period. Direct evidence from the ratification debates that the framework was implicitly understood to limit the reach of constitutional rights is slim. Madison did indicate to the Virginia convention that alien enemies would not be able to sue in federal court—notwithstanding the broad language of Article III. But other clear examples like this are lacking.

But the "simple, acknowledged" rights found in the Constitution and Bill of Rights were primarily taken from the common law—habeas corpus, the jury, the privilege against self-incrimination, due process, the rights to confront witnesses, bear arms, petition the government, etc. It would have made sense to look to the common law to understand who could claim these rights, in what places, and in what contexts. This move—looking to the common law to contextualize the scope of constitutional rights—is supported, as I have argued here, by the kind of public meaning originalism advanced by John McGinnis and Michael Rappaport. As I understand it, this method of originalism holds that readers of the Constitution would have understood that they needed to apply the appropriate interpretive rules to the document, and that those rules could have included common law allegiance-protection rules about who could claim rights.

But what about constitutional provisions framed not as individual rights, but as limitations on government power—does the allegiance-protection framework also govern the scope of these provisions? Could Congress, for example, pass a bill of attainder directed at an alien enemy? That person could not access the courts to claim the protection of the law in order to challenge the constitutionality of such a bill. But the constitutional text is framed as a flat prohibition on any bills of attainder. I think the right answer is that Congress could not pass any bills of attainder, no matter who directed at. This is in part based on the unqualified text of the provision at issue, and in part based on the horror with which the Founding generation viewed the abusive practice of such bills.

Case by case analysis like this would need to be conducted on other constitutional provisions that refer not to rights holders but to limitations on government power.

 Conclusion

Although this conclusion is not free from doubt, I believe the best understanding of the original meaning of the Constitution is that a non-U.S. citizen like Hernandez, who was injured by the U.S. government in foreign territory, would not have a constitutional right to assert. But this does not mean that such a person would have been bereft of any legal recourse at the Founding. A non-enemy alien injured in his or her person (or property) by a U.S. official could have brought a tort suit, even if this injured party was a noncitizen injured outside U.S. territory. This suit could have been brought in U.S. court and, most likely, also in the courts of the foreign country where the injury occurred. The substantive law would have been non-federal: either foreign law, common law, or the general law of nations. As I and others have discussed, however, a combination of legal developments in the courts and Congress in the twentieth century mean that today, someone like Hernandez generally must bring a tort suit under the substantive law of the Constitution. Once that occurred, tort remedies became dependent on the rules about the geographic scope of constitutional rights for noncitizens.