118 Yale L.J. 1660 (2009).

From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritorial” force. Despite nearly two centuries of decisions on this issue, the law remains unsettled, and no framework for analyzing these claims is clearly defined, much less well established. This Essay draws on that body of decisions to develop an approach for evaluating whether a particular constitutional provision should have overseas application in a particular case. In so doing, it considers competing theories of the Constitution—one envisioning the document as a “compact” between the government and the governed, and the other construing it as a charter from which “organically” flow both the power of the government and the limitations of that power—and how these competing theories shape views on whether constitutional provisions should have force abroad. The question of extraterritorial applicability has arisen in numerous contexts in our history, including continental expansion, colonial administration, and conventional war. In modern times, however, we see it raised most often in the context of criminal prosecutions and antiterror operations. Because the focus of this Essay is on contemporary criminal prosecutions, it examines the basis in international law for a nation to prosecute individuals residing beyond its borders. It then discusses the body of law addressing the question of extraterritorial application and, avoiding a rigid, dogmatic theory, gleans from these decisions a set of considerations that can guide future decisionmaking in this complex area of law.