Column: Living In The Constitution's Loopholes

This story was written by Michael Page, Cornell Daily Sun
Like the universe, the U.S. Constitution gets a bit wacky on the margins. Just last week, for example, the Second Circuit (Cornell's local federal appeals court) upheld the constitutionality of U.S. officials warrantless search of the home of a U.S. citizen living in Kenya by finding that the second half of the Fourth Amendment the part that requires warrants simply did not apply. Had the same search occurred in New York, all parties agree, it would have been unconstitutional. The decision itself seems quite reasonable; what authority does a U.S. judge have to issue a warrant for a search in Kenya? Surely Alexander Hamilton was not anticipating such an application of the Fourth Amendment, but neither was he anticipating criminal investigations in Africa.

A basic primer: The federal government cannot do anything unless the Constitution gives it permission. That means that whenever the president acts, whether domestically or abroad, his authority must derive from Article II of the Constitution, or from Congress, whose authority in turn must derive from Article I of the Constitution. But the analysis doesnt end there. Even if Article II tells the president he can do X, if X violates an individuals constitutionally protected right, such as the Fourth Amendments right against unreasonable searches and seizures, we have a problem.

Imagine the following situation: You, a U.S. citizen, and a friend, a noncitizen, are standing in a cornfield in Kansas. Behind you is the president, who is shooting spitballs at the back of your heads. Article II of the Constitution gives the president the power to shoot spitballs a distance of up to20 feet. The Constitution also gives both of you paddles, with which to swat away the presidents spitballs. Paddles in hand, you and your friend walk southward, all the while swatting away the presidents spitballs and trying to stay more than20 feet ahead of him. All is going well through Oklahoma and Texas, but somewhere in the middle of the Rio Grande something funny happens: Your friends paddle disappears, and your paddle, although still in your possession, doesnt look quite the same; perhaps its handle is missing. Somewhere south of Monterrey, Mexico, the president is still on your trail, still shooting spitballs up to20 feet, but only now your friend is getting creamed and even you are feeling more vulnerable.

So what happened? Somewhere over the Rio Grande, the Constitution unraveled, and the neat analytical framework described in the second paragraph which governed the power dynamic between you and president in Kansas fell apart. The shape the unraveling takes is not clear, a puzzle known as the extraterritorial reach of the Constitution. The puzzle is actually a misnomer, or at least misleading. The federal government can act anywhere on earth (hence the spitballs in Mexico) even in space. The real question is which individuals can claim the protections of the Constitution.

For the most part, everyone within the territorial United States, citizens and noncitizens, can claim the Constitutions protections. It is also clear that some people, in some situations, can claim some parts of the Constitution even outside the territorial United States. The Supreme Court first addressed this issue during American expansionism at the turn of the 20th century, finding that practical difficulties prevented it from applying the Constitutions limits on government power always and everywhere. Over the next100 years, in a series of ad hoc judgments, the Supreme Court found that the right to a trial by jury extended to a U.S. citizen in Germany, that the Fourth Amendment did not reach a noncitizen in Mexico, and, most recently, that the right to challenge the legality of ones detention (habeas corpus) extended to noncitizens at Guantanamo Bay (technically part of Cuba).

How ought courts, such as the Second Circuit, approach this puzzle? Is it fair that your friend, as a noncitizen, lost his paddle in Mexico but that you, as a citizen, retained all (or mostly all) of yours? Does it make sense that the presidents power no longer checked by your constitutionally guaranteed paddles effectively increased once across the border? Does it matter whether the presidents actions are outward focused, such as a war, or inward focused, such as the investigation of a fraud committed on a U.S. bank? If that distinction is important, does it matter whether we characterize the Kenyan search as part of the War on Terror or as part of an ordinary criminal investigation? If so, should terrorist suspects residing in the United States lose their constitutional protections?

I will not pretend to provide any answers to these questions, other than to suggest that our territory-focused conception of the Constitution is, like,so 20th century. Courts will increasingly have to address the extraterritorial reach of the Constitution and their case-by-case focus on practical considerations, although reasonable, does not always sound very constitutional.
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