The Spatial Limits of the Constitution

Sen. Ron Wyden published an op-ed yesterday -- "Rights That Travel" -- about the need to broaden the protections of FISA to Americans living or traveling overseas. His argument is that the balance between fighting terrorism and protecting constitutional rights "should not be eliminated simply because an American leaves U.S. soil."

While the legal community constantly debates the questions of when and how Constitutional rights apply, the question of where they apply is just as important with regard to the scope of these constitutional prohibitions -- and it is far from settled. Much of the Constitution is structured as a limit on the powers of government, and it has generally been interpreted as granting negative rights (for the individual to enforce against government action) rather than positive rights (which the government would owe to the individual). So, if the Constitution is a limit on government power, does it limit:

- The government's power over U.S. citizens in the territory of the United States?

- The government's power over anyone legally in the territory of the United States?

- The government's power over anyone in the territory of the United States?

- The government's power over Americans (presumably citizens) no matter where they are? (This is what Sen. Wyden suggests when he writes that "in the digital age, it makes little sense that an individual's relationship with his or her government should depend on that individual's physical location.")

- The government's power when it exercises police or regulatory authority over someone no matter where they are?

- The government's power over anyone no matter where they are?

Where one's opinion lies on the spectrum has to do with several factors. One's beliefs about foreign policy and international relations matter -- while the Constitution wasn't drafted with foreigners in mind, in a post-Westphalian world where sovereignty is diminished and the U.S. has a global reach, perhaps the Constitution should follow government power wherever it goes. Also important are one's thoughts on whether the Constitution creates positive or negative rights; if you believe that the Constitution gives you rights, then it makes sense for them to follow you if you travel abroad.

The most important factor, though, is what one thinks the purpose of the Constitution is. If one sees the Constitution as a list of benefits given to certain people (citizens, residents, "U.S. persons", etc.), then the reach of Constitution extends only as far as those lucky beneficiaries. However, if one sees the Constitution as a system of necessary restraints on government, restraints that prevent its worst abuses and therefore give legitimacy to government action, then there is no reason why government power should ever come unshackled from its Constitutional responsibilities.