Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2009 A Convenient Constitution? Extraterritoriality After Boumediene Christina Duffy Ponsa-Kraus
[email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, Fourteenth Amendment Commons, and the Legal History Commons Recommended Citation Christina D. Ponsa-Kraus, A Convenient Constitution? Extraterritoriality After Boumediene, 109 COLUM. L. REV. 973 (2009). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2239 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact
[email protected]. A CONVENIENT CONSTITUTION? EXTRATERRITORIALITY AFTER BOUMEDIENE ChristinaDuffy Burnett* Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the "war on terror." In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantdnamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the "impracticableand anomalous" test, also known as the 'functional"approach because of its relianceon prag- matic or consequentialist considerations. The test first appeared in a concur- ring opinion overfifty years ago; in Boumediene, it garnered the votes of a majority. This Article argues that the Boumediene Court was right to hold habeas rights applicable in Guantdnamo, but wrong to endorse the "imprac- ticable and anomalous" test. The test rests on a view of the Constitution abroad that overemphasizes the difference between the foreign and the domes- tic, improperly relegatingconstitutional guarantees abroad to afar more un- certain status than they have at home.