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.
I’m pleased to announce that on Monday, December 5, 2016, I’ll be speaking on a panel about Fidel Castro’s legacy. It will take place from 2:00-3:30 p.m. in the Zell Miller Learning Center, Room 213.
Convened by the Latin American and Caribbean Studies Institute and co-sponsored by the Dean Rusk International Law Center, the panel will also feature professors from several departments at the University of Georgia, including: Reinaldo Román from History (left), Susan Thomas from Musicology (left), and Tim Samples from the Terry College of Business (right).
We’ll discuss the legacy, both positive and negative, that Castro leaves behind: universal healthcare, employment, and education, but also international sanctions, and human and civil rights abuses (about which I’ve written, here). In particular, I’ll talk about the legacy of U.S.-Cuban relations as seen through the U.S. naval base at Guantanamo, one of my current topics of research.
Hope to see you there!
Issues of foreign policy and national security remain foremost in many voters’ minds as the 2016 U.S. Presidential election has entered its final, post-Labor Day lap. We’re thus delighted to be welcoming an expert in this areas to our Athens campus next week:
Fresh from recent lectures in Oxford, Auckland, and Berlin, Ambassador Derek Shearer will deliver a public talk entitled “The Whole World Is Watching: Foreign Policy & the U.S. Presidential Election” at 12:30 p.m. this Tuesday, September 13, at the University of Georgia School of Law. Sponsoring the talk is Georgia Law’s Dean Rusk International Law Center; cosponsors are the World Affairs Council of Atlanta and the University of Georgia School of Public & International Affairs.
Shearer, whom I’ve long been privileged to call a colleague, is Chevalier Professor of Diplomacy and World Affairs at Occidental College in Los Angeles who served as an economics official in the U.S. Department of Commerce, and then as U.S. Ambassador to Finland from 1994 to 1997. He’s the author of several books and a frequent writer on and contributor to public policy discussions; his articles have appeared in The New York Times, Wall Street Journal, and International Herald Tribune.
In addition to the talk, Shearer will speak to students in Election Law and Strategic Intelligence courses.
We’re also very pleased to welcome Sue Toigo (left), Chairman of Fitzgibbon Toigo Associates and Shearer’s wife. She’ll discuss corporate responsibility with Georgia Law Business Ethics students.
For additional details, e-mail firstname.lastname@example.org.
(Cross-posted from Diane Marie Amann)