Christina Duffy Ponsa

Columbia Law Review, 2009


Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the “war on terror.” In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantanamo have the right to challenge their detention in federal court. To ́reach this conclusion, the Court used the “impracticable and anomalous” test, also known as the “functional” approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority.

This article argues that the Boumediene Court was right to hold habeas rights applicable in Guantanamo, but wrong to endorse the “impracticable and anomalous” test. The test rests on a view of the Constitution abroad that overemphasizes the difference between the foreign and the domestic, improperly relegating constitutional guarantees abroad to a far more uncertain status than they have at home. Although the opinions developing the test pay lip service to the idea that the Constitution has force outside the United States, they undermine that proposition by determining whether constitutional guarantees apply extraterritorially based on pragmatic grounds alone—that is, by asking whether it would be “impracticable” and/or “anomalous” to apply them. In response, this Article argues that courts deal-
ing with questions of constitutional extraterritoriality should distinguish between two questions: that of whether a constitutional guarantee applies in a given circumstance, and that of how an applicable guarantee may be enforced.n Pragmatic factors come into play at the second stage.

Illustrating the point by comparing the cases on constitutional extraterritoriality to those on Fourteenth Amendment incorporation, this Article argues that courts addressing questions of constitutional extraterritoriality should look to the Fourteenth Amendment cases for guidance on the distinction between the “whether” and “how” questions. Only when consequentialist concerns enter the analysis at the proper stage will governmental action abroad be adequately restrained.

View the paper hereA Convenient Constitution? Extraterritoriality After Boumediene