“Highly recommended”: Professor Chapman on “Due Process Abroad”

Due Process Abroad is the title of the timely manuscript that Nathan S. Chapman (right), an Assistant Professor here at the University of Georgia School of Law, has just posted at SSRN. At the influential Legal Theory Blog, Georgetown Law Professor Lawrence Solum has given his “highly recommended” recognition to this study of the extraterritorial application of the Due Process Clause of the U.S. Constitution.

The manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded here.

Here’s the abstract:

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure.

Up to now, scholars have uniformly concluded that the founding generation did not understand due process to apply abroad, at least not to aliens. This Article challenges that consensus. Based on the English historical background, constitutional structure, and the early practice of federal law enforcement on the high seas, this Article argues that the founding generation understood due process to apply to any exercise of federal law enforcement, criminal or civil, against any person, anywhere in the world. Outside the context of war, no one believed that a federal officer could deprive a suspect of life, liberty, or property without due process of law — even if the capture occurred abroad or the suspect was a non-citizen.

This history has important implications. It strongly supports the extension of due process to federal criminal and civil law enforcement, regardless the suspect’s location or citizenship. This principle has immediate implications for cross-border shootings, officially sponsored kidnappings and detentions abroad, the suspension of immigration benefits, and the acquisition of foreign evidence for criminal defendants.

My family history & path to the bench

It is an honor today to publish this post by our distinguished alumna, the Honorable Carla Wong McMillian, Judge on the Georgia Court of Appeals since 2013. Born in Augusta, Georgia, she earned her Georgia Law J.D. degree summa cum laude in 1998. She is the first Asian Pacific American state appellate judge ever to be appointed in the Southeast, and, since 2014,  the first Asian American to be elected to a statewide office in Georgia. Judge McMillian also serves as President-Elect of the Georgia Asian Pacific American Bar Association (GAPABA). Reflecting on these achievements in this essay, which we reprint courtesy of and with thanks to the Georgia Asian American Times, she writes:

Carla McMillianI am proud to be an American. I am equally as proud of my Asian American heritage.

I grew up in Augusta, Georgia, where the Chinese community has had a long history. The Chinese first immigrated to the city in 1872 to help build an extension of the Augusta Canal. These Chinese men — and it was all men in those days – began sending for their wives and children, and word spread that Augusta was a good place to immigrate and to make a new life.

My father’s parents were some of those who heard from others in their villages in southern China about Augusta. They originally immigrated to San Francisco, but moved to Georgia in the 1910’s and opened a small grocery store. In those days, if you were Chinese, you had two options to make a living in the South — open a laundry or a grocery store. My father was the youngest of six children and was born in the back room of that store where the family lived.

I am sure that my grandparents never dreamed that they would have a granddaughter who is a lawyer much less a judge. And although they did not know the language or the culture, they instilled in their children a love of this country and a service mindset. I am proud that my father and uncle are veterans who did their part to protect our freedom and way of life.

That’s my father’s side of the family – the Wongs from Augusta. But I also want to talk about my mother, who emigrated from Hong Kong to marry my dad. As a result, Chinese was my first language – that is what we primarily spoke at home before my siblings and I went to school.

One of my most distinct memories as a child was going into a courtroom and watching my mother be naturalized as an American citizen. I can remember my sister and me in our best dresses, standing with my father and watching my mother take her oath of allegiance to the United States. That was a proud day for my mother and for the rest of my family.

Growing up in an Asian American family in the Deep South, there just were not too many people outside of my family who looked like me, spoke like me, or ate the same kinds of foods at home. It used to be when I was a teenager that I wanted to cover up all of those differences and blend in. But as I have grown older, I have learned to embrace those differences because that is what makes our country so great.

I want to share with you that I never aspired to be a judge. I practiced for many years with a law firm in Atlanta where I expected to be for my entire career. But some judicial positions came open in my local jurisdiction. I almost did not apply. I was comfortable with my law practice and frankly I knew that even if I got the appointment, I would then have to run for election to keep my seat. I was fearful about facing the rigors of campaigning each election cycle. So after about a week of soul-searching, I had all but decided not to apply.

But I changed my mind one night as I was looking at my young children. I thought about what I wanted to tell them twenty years from now, about seizing opportunities and about doing what I could to serve the community where they will be growing up. So I applied for the judgeship and was appointed initially to the trial court and later to the Court of Appeals.

As a judge, I have taken an oath to uphold the Constitution. The Constitution ensures that we are a nation of laws, but it begins with the simple words, “We, the people.” Therefore, we must remember that key to the concept that we are a nation of laws is the notion of equality — the belief that “all men are created equal.” No one is above the law, and no one is so low that they cannot avail themselves of the law’s protection.

We must always remind our children that the rights and privileges guaranteed by the Constitution are there for us all. Without them, I would not be in the position that I am in today. The Constitution gives everyone an opportunity to fulfill their potential, even for someone like me who came from a family of immigrants because by protecting the rights that the Declaration of Independence declares to be God-given, the Constitution provides each of us the freedom and opportunity to pursue our own destiny. I am honored to serve as the first Asian American on our Court of Appeals and as the first Asian American to be elected to statewide office in Georgia.

whole_court_2016

Learning law on both sides of Atlantic: Join Georgia Law at Oxford Spring 2017

oxford_Smith_traub2016crop

Learning in London: Georgia Law at Oxford Spring 2016 students with Professor-in-Residence James Smith and Kit Traub (JD 1988), Minister-Counselor for Political Affairs (acting), U.S. Embassy

Over the last decade, more than a hundred U.S. students have enriched their legal studies through Georgia Law’s offering of a semester-long experience the University of Oxford, one of England’s most venerable institutions. Providing 12 credits over the course of about 15 weeks, Georgia Law at Oxford is one of the few such semester-long opportunities among U.S. law schools.

According to Georgia Law Professor Joseph Miller, Director of Georgia Law at Oxford:

“The Oxford program is deeply engaging and rewarding. I remember my time there in Spring 2013 so fondly, and I continue to hear from alums of the program about how much they grew and learned in Oxford, one of the world’s ultimate university towns. It’s filled with life and living history, side by side.”

Applications are welcome for Spring 2017. Interested Georgia Law students are encouraged to attend one of 2 information sessions next week, to be held on Monday, March 14, and Wednesday, March 17; interested students from other law schools should contact Professor Miller, getmejoe[at]uga[dot]com, for information about attending as a University of Georgia visiting student.

The exciting Spring 2017 curriculum will be led by professors from both sides of the Atlantic:

Chapman_head► Georgia Law Professor Nathan Chapman (right) will be the Georgia Law professor in residence in Spring 2017. He’ll teach 2 courses, for a total of 7 units:

►► Comparative Constitutional Law: The course will survey the historical and philosophical origins of constitutionalism, with a special emphasis on the development of the liberal constitutional tradition associated with Magna Carta, the English Bill of Rights, the U.S. Constitution, and the French Declaration of the Rights of Man. The bulk of the course will explore the different structures, procedures, and rights provisions in a variety of contemporary constitutional systems (including treaty-based systems such as the European Union). A special concern will be legitimacy and methods of constitutional change.

►► The History of the Common Law: Using the excellent textbook by Langbein, Lettow Lerner, and Smith, this course will survey the development of the common law, courts, and legal profession in England and the United States, giving special emphasis to the ways that the common law and legal practice have diverged in England and American in the past 200 years. The course will conclude by comparing how the practice of law is structured and regulated in both countries today.

enchelmaierTN► Joining Professor Chapman will be Oxford Law’s Stefan Enchelmaier (left), Professor of European and Comparative Law. His 2-unit course, EU Economic Law, will examine the economic components of European Union law.

► Rounding out the curriculum will be a 3-unit Supervised Research Tutorial, modeled on the format of the renowned Oxford tutorial and taught by an array of Oxford Law faculty. Small-group meetings will be devoted to planning or revising the research paper that each student will complete during the semester, on a topic of comparative or international law.

Details and application here.