Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. By Kal Raustiala

Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. By Kal Raustiala. Oxford and New York: Oxford University Press, 2009. 328 pp. $29.95 cloth. In the aftermath of 9/11, the Bush administration opened the nowinfamous detention center at Guantanamo Bay. The detention center's location in an offshore military baseFa territory not formally a part of the United States, yet under U.S. jurisdiction and controlFhas raised an important legal question: Do the detainees have constitutional rights, such as the right to file a habeas petition? Recent Supreme Court decisions notwithstanding (Boumediene v. Bush 2008), as Kal Raustiala writes in Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law, the answer to this question is far from straightforward. Raustiala states in his acknowledgments that the inspiration to write Does the Constitution Follow the Flag? first emerged from a student's question about the constitutional and jurisdictional status of Puerto Rico as an American territory, and then blossomed during the post-9/11 debates over the Guantanamo detainees and the rights of those being held in the United States's ''black site'' prisons scattered across Europe and Asia. In this compelling and well-researched book, Raustiala explores ''whether, and if so how, the law of the United States is [or has been] congruent with its sovereign territory'' (p. 5). Raustiala approaches his subject matter from an analytical, not normative, perspective. He is not arguing whether the Constitution should follow the flag. Rather, he is interested in tracing the evolution of territoriality in American law; in delineating the instances in which the Constitution did, and did not, follow the flag. Specifically, his approach is to historically trace, via contextualization and analysis of relevant court cases, the development of what is commonly called ''extraterritoriality'' and what he calls ''intraterritoriality.'' By ''intraterritoriality,'' Raustiala is referring to cases in which different regions within the sovereign, territorial borders of the United States, or in other instances, regions outside of the United States but under American imperial control, have been held to different (typically lesser) legal standards. He interprets intraterritoriality as a strategy to exploit legal difference for strategic ends and explores the concept in the context of nineteenth-century ''manifest destiny,'' American westward territorial expansion, and American imperial expansion overseas. During these times, it was clear to legal authorities that the Constitution protected those in the States, but did constitutional norms apply to the Western territories? To ''Indian country?'' To Hawaii and the Philippines? To Puerto Rico? It was hard to argue that these territories were not under American power, but did legal rights follow this power? Raustiala's primary source material for this book is prominent legal cases, and in this instance he details the intraterritorial implications of, for example, the infamous Dred Scott case (1857, in which the Supreme Court determined that constitutional rightsFin this case, protection of private propertyFdid extend into Federal territories) and Downes v. Bidwell (1901, one of the ''Insular Cases''), decided some half a century later, which veered away from the logic of Dred Scott and facilitated the expansion of the United States's overseas empire by declaring Puerto Rico as American territory but beyond full constitutional protection (as the Court awkwardly wrote, Puerto Rico was ''foreign in a domestic sense'' [p. …