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

[Editor's note:  For this guest post we welcome Professor Andrew Kent, Professor of Law at Fordham Law School, one of the nation's leading scholars on the extraterritorial Constitution.  This is part 1 of a two-part discussion.]

Thanks to Michael Ramsey, Mike Rappaport, and the University of San Diego School of Law's Center for the Study of Constitutional Originalism for inviting me to talk earlier this month about whether the Constitution, in its original public meaning, provided extraterritorial protections to either U.S. citizens or noncitizens.

This is highly salient now, both because the United States government conducts a wide array of activities outside U.S. borders that might affect constitutional rights, if such rights exist—e.g., surveillance, drone strikes, detentions and interrogations— and because the Supreme Court is hearing this term an important case about the issue.

As I have written previously, based on a review of case law, political branch practice, and commentary over the course of U.S. history:

"[T]erritorial location has historically been a crucial determinant of protection from the Constitution and the courts. Generally speaking, both citizens and noncitizens within the United States were protected by the Constitution and could access the courts to claim protection. But, before the twenty-first century, noncitizens outside the sovereign territory of the United States were held to lack any constitutional rights. On the other hand, U.S. citizenship or lawful permanent residence in the United States did at times provide some extraterritorial rights protection."

The dispute currently at the Supreme Court, Hernandez v. Mesa, concerns a Fourth Amendment damages claim brought by the family of a teenaged Mexican national killed by a U.S. border patrol agent. The U.S. official was standing in the United States when he fired his weapon; the teen was in Mexico when he was hit. The primary dispute is whether the fact that the injury occurred outside the borders of the United States means that Hernandez, as a non-U.S. citizen, lacks Fourth Amendment rights to be free from an unreasonable use of deadly force.

The parties' briefing is doctrinal and precedent-based, not originalist. One of the important precedents is a 1990 decision, United States v. Verdugo-Urquidez, in which the Supreme Court held—consistent with the traditional view—that the Fourth Amendment did not apply to the search in Mexico by U.S. law enforcement of a Mexican national's house. But Hernandez's family argues that the categorical rule of Verdugo, basing constitutional protection on citizenship and territorial location, was undermined by Boumediene v. Bush in 2008, which famously applied a flexible, totality-of-the-circumstances kind of approach to deciding that the Constitution protected habeas corpus for noncitizen detainees at the U.S. naval base in Guantanamo Bay, Cuba.

Unlike the parties, in this post I want to put aside post-1789 case law to focus instead on the original public meaning of the Constitution's text.

The Text

With very few exceptions (such as the Thirteenth Amendment), the Constitution does not overtly specify the places where rights apply. But some hints about scope can be found in the Preamble and Supremacy Clause, the provisions Akhil Amar has called " the Constitution’s most sustained meditation upon itself." As I noted in an article about extraterritorial constitutional rights, the Preamble states the goal of securing liberty "to ourselves and our posterity," and notes that "this Constitution" is ordained and established "for the United States of America." The Supremacy Clause describes the Constitution as "the supreme law of the land." The law of the land was a term of art in eighteenth century English and colonial law, referring to domestic as opposed to international law—the common law and legislation.  (See Michael McConnell and Nathan Chapman on due process and the law of the land.) Together the Preamble and Supremacy Clause suggests a domestically-focused document, protective of the people of the United States in the United States via fundamental domestic law. 

The People, Persons, and Citizens

Cutting against a domestic-only reading is the fact that almost all rights and limitations in the Constitution are written in broad and open-ended terms. For example, most rights in the Fifth Amendment are held by "person[s]," with the one exception—the Takings Clause—being phrased a  simple limitation on power. Sixth Amendment rights are for "the accused." Bills of attainder and ex post facto laws may not be enacted by Congress, full stop.

This open-ended language seems like it must be meaningful. A provision such as the Article IV Privileges and Immunities Clause shows that the drafters knew how to limit rights to U.S. citizens only, if they had wanted to.

What about the rights holders specified by the text of the Fourth Amendment, the provision at issue in Hernandez? The Supreme Court in Verdugo and some scholars such as Amar read the phrase "the People" in the Fourth Amendment as a term of art, referring to a collective, domestic group, the same "We the People of the United States" referenced in the Preamble, in Article I section 2's provision that "the People of the Several States" shall elect House members, and in the First, Second, Ninth, and Tenth Amendments. According to Amar, the core meaning of "the People" referred to "First Class Citizens," the group who were voters, jurors, and militia members. Somewhat similarly, in Verdugo, the  Court read the People" in its original meaning to be the "class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." The Court contrasted "the People" with the broader and more encompassing term "person" in the Due Process Clause.

If this is right, Fourth Amendment rights would seem to be available to "the People" (including paradigmatically U.S. citizens) everywhere, but to non-members of the People nowhere. As I have argued, however, I am quite skeptical reading the term "the People" (or the allegedly broader term "person") to have this kind of significance. Examining key precedents for the Bill of Rights—U.S. state constitutions and proposed amendments to the Constitution offered by state ratifying conventions—one sees an array of terms used to describe rights holders: people, person, man, subject, individual, freeman, resident, inhabitant, member. The use of these different terms seems to have been indiscriminate in almost all cases, rather than intended to convey important information about the scope of rights holders.

[to be continued -- ed.]