Alan Mygatt-Tauber has posted Determining Constitutional Extraterritoriality on SSRN. Here is the abstract:
For over a century, courts have struggled to define the reach of the Constitution outside U.S. borders. The federal reporter is filled with hundreds of cases addressing the question. Courts seem to have settled on an equilibrium where U.S. citizens can claim the protections of the Constitution abroad, while non-citizens may not. Thus, courts typically begin by inquiring into the citizenship of the party before them. But there is an antecedent questions courts should be asking.
For almost as long as the courts have wrestled with the question of the Constitution’s application outside the United States, they have been clear that it applies to all within the country, regardless of citizenship. Therefore, courts’ first question should be whether the proposed application of the Constitution is extraterritorial at all, because the answer to that question can often be dispositive, at least for non-citizens. Surprisingly, only a few courts have ever started with this question. Just as surprisingly, the question has rarely been raised by academics. This article aims to address this gap.
The article argues that the question comes down to this: where does a constitutional violation occur? If it occurs overseas, then the citizenship question is the appropriate next step. But in a number of cases, the answer will be that the violation, if it occurred, happened within the United States. Thus, while the effects may be felt abroad, the proper analysis is to treat the violation as domestic and apply the Constitution. Focusing on the location of the violation is most consistent with the structure of the Constitution, current caselaw, and the original understanding of the document.