November 3, 2009


Raustiala, Kal, Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law (Oxford & New York: Oxford U. Press, 2009) (Notwithstanding the catchy title—no doubt chosen for marketing purposes--, the focus of this book is not constitutionality but rather territoriality. That is, the title should be dropped and the subtitle elevated to full-title status. How and when does a nation’s law apply outside and within its territorial borders. “This book is 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. Do U.S. laws stop at the water’s edge? If not, do they operate differently beyond American territory? At one level, these questions are narrow and lawyerly, and there is indeed a large legal literature on these topics. At another level, however, the nature of the connection between law and land raises profoundly significant political, economic, and social questions.” ”. . . In a deep sense legal power is defined territorially, and has been since the sovereign state came into being in seventeenth-century Europe. The basic jurisprudential principles is a simple one: where you are determines what rules you are governed by.” “Yet, perhaps precisely because this principle of territoriality is so commonplace, it is rarely examined and surprisingly ill defended.” Id. at v-vi. “This book has several aims. The first is to explain why territoriality is a significant concept and why the American legal system, like other legal systems, has traditionally been presumptively territorial.” “[The] second aim is to trace, in very broad brushstrokes, the evolution of territoriality in American law from the founding era to today. Territoriality has always been an important principle, but as a practice, as well as a principle, it has a complicated past (and an even more complicated present). Id. at vi. “[The] final aim is to advance several claims about the evolution of territoriality. First, extraterritoriality has shown surprising continuity in its purpose even as its form has changed. . . . But despite dramatic changes in form, the primary function of extraterritoriality has remained much the same. That function . . . is to manage and minimize the legal differences entrenched by Westphalian sovereignty.”* “Second, extraterritoriality is paralleled by what I call intraterritoriality. Just as extraterritoriality has long been a way to conceptually redraw maps, te redefine what is inside and outside the scope of a sovereign’s law, intraterritoriality has served to delineate differences within national borders, particularly as the United Sates grew in size and power. Intraterritorial doctrines, such as the claim that some constitutional rights do not in some American territory, reflect the tension between the demands of liberal constitutionalism and the imperatives of global power politics.” Id. at vii. *See the Treaty of Westphalia in 1648.)