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Here the Problem Arises Article Constitutional Spaces Allan Erbsen† I. The Land of the Law: The Constitution’s Ad Hoc Typology of Physical Spaces ............................................ 1175 A. The “Land” ................................................................. 1179 B. The “United States” ................................................... 1186 C. “States” ....................................................................... 1197 D. The “District” and the “Seat” .................................... 1208 E. “districts” .................................................................... 1215 F. “places” and “territories” ........................................... 1221 G. “Territory” and “Property” ......................................... 1224 H. “possessions” .............................................................. 1232 I. “Places” ....................................................................... 1234 J. The “high Seas” .......................................................... 1243 K. “admiralty and maritime Jurisdiction” .................... 1247 II. The Law of the Landless: Unenumerated Spaces .......... 1252 A. Indian Territory ......................................................... 1253 B. Adjacent Spaces: Above (the Air), Below (Underground Resources), Beside (Coastal Waters and Submerged Lands), and Between (Boundary Rivers) ........................................................................ 1258 Conclusion .............................................................................. 1266 Scholarship about the Constitution’s meaning generally fo- cuses on four core features of the document: the rights that it creates, the obligations that it imposes, the institutions that it empowers, and the relationships that it structures. These con- cepts are clearly important. But understanding how these con- cepts translate into doctrine requires considering an aspect of † Associate Professor, University of Minnesota Law School. A.B. 1994, J.D. 1997, Harvard University. Thanks to Aaron-Andrew Bruhl, Christina Duffy Burnett, Richard Freer, Jill Hasday, Brad Karkkainen, Mark Rosen, and participants in a faculty workshop at Loyola Law School Los Angeles and the Federal Courts Workshop sponsored by the University of Illinois College of Law for helpful comments. Copyright © 2011 by Allan Erbsen. 1168 2011] CONSTITUTIONAL SPACES 1169 the Constitution that scholars have not systemically analyzed. This overlooked dimension is the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Spatial precision is essential because knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. The text remains the same, but its significance varies as one travels between, for example, Maryland, the District of Columbia, Puerto Rico, Guantánamo Bay, and Afghanistan. Yet despite the importance and perva- siveness of spatial references in the Constitution, commenta- tors have not analyzed these references collectively. This Article fills that gap in the literature by considering each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s approach to delineating the physical domain in which it ap- plies. The analysis shows that many discrete problems on which scholars have focused—such as the rights of U.S. mili- tary detainees abroad and the extraterritorial reach of state law—are manifestations of a broader phenomenon that exists because of indeterminacy in the Constitution’s typology of spaces. Considering these spaces together highlights this inde- terminacy, provides new perspectives on commonly discussed problems, and exposes additional puzzles that have escaped scrutiny. The Article thus provides a foundation for future scholarship addressing a wide range of constitutional questions linked to the boundaries and status of discrete spaces. The importance of spatial distinctions emerges from three of the Constitution’s signature features: its bifurcation of sover- eignty, its recognition of fifty semi-autonomous subnational units, and its enumeration of individual rights. The fragmenta- tion of regulatory authority raises vexing allocation problems: the Constitution must allocate power vertically between the federal and state governments, and horizontally among the states.1 Compounding these problems is the fact that the allo- cation of power is sometimes exclusive and sometimes concur- rent. A conclusion that one entity (such as Congress or a state) possesses a given power does not foreclose further inquiry into whether the same power resides in another entity, and if so 1. See Allan Erbsen, Horizontal Federalism, 93 MINN. L. REV. 493, 504– 05 (2008) (explaining how vertical federalism and horizontal federalism prob- lems overlap). 1170 MINNESOTA LAW REVIEW [95:1168 how those overlapping powers operate in tandem.2 The Consti- tution’s enumeration of rights and the historical importance of territorial limits on institutional authority add further com- plexity when thinking about the text’s spatial distinctions. Each constitutionally defined space has at least one corre- sponding governing entity and governed community that may have more or less power, or more or fewer rights, when acting within or beyond a particular place. In essence, most people are citizens in some places and aliens in others, and governments are sovereign in some places and foreign in others. The permis- sibility of particular interactions between people and govern- ments can therefore vary depending on the relationship be- tween them, the territorial scope of the government’s authority, and the territorial reach of individual rights.3 Fragmented reg- ulatory authority and enumerated rights thus combine to create a central question of constitutional law: Which unit(s) of government, if any, may exercise binding power with respect to particular matters? The Constitution takes three distinct approaches to an- swering the “which unit” question by focusing, variously, on who is acting, what they are doing, and where they are doing it.4 For example, if the relevant actor is a foreign ambassador, federal courts possess adjudicative authority that might other- wise lie in state courts.5 If the actor is instead a private citizen engaging in interstate commerce, Congress possesses legisla- tive authority that it might otherwise lack.6 And if the actor’s noncommercial conduct occurs in a national forest, federal power may exist to a greater degree than if the conduct oc- curred on land belonging to a state.7 Most scholarship about the Constitution’s allocation of regulatory authority focuses on the who and what aspects by considering whether the federal or state governments should 2. See generally Mark D. Rosen, From Exclusivity to Concurrence, 94 MINN. L. REV. 1051 (2010) (analyzing evolving understandings of when powers are or should be exclusive or concurrent). 3. See infra notes 33–34 (discussing how law shapes and is shaped by notions of territory). 4. A fourth question—when conduct occurred—is relevant when consti- tutional amendments or nonretroactive changes in controlling precedent draw a temporal line between otherwise indistinguishable acts. 5. See U.S. CONST. art. III, § 2. 6. See id. art. I, § 8, cl. 3. 7. See infra Part I.G. 2011] CONSTITUTIONAL SPACES 1171 have authority to regulate various kinds of actors or activities.8 But the where question merits closer scrutiny because of the Constitution’s haphazard approach to defining physical spaces and assigning significance to those spaces. The key to understanding the where question in constitu- tional law is to recognize that spaces are important because they have boundaries, and those boundaries are important be- cause they create an inside and outside and define people as in- siders or outsiders. These inside/outside distinctions animate a broad range of constitutional doctrines. Judges must constantly consider what must and cannot happen in certain spaces, who decides what may happen in these spaces, and whether the force of particular powers and rights varies with the physical context of their assertion or the affiliation of actors and the people they affect. Opinions thus emphasize whether conduct happened in a particular space, whether a regulator is of a par- ticular space, or whether an actor is from a particular space. Of course, the empirical prominence of spatial boundaries in con- stitutional analysis does not mean that analysis based on spa- tial distinctions is normatively sound. The extent to which lines on a map should determine government prerogatives and indi- vidual entitlements is debatable.9 But for better or worse, “the People” who “ordain[ed] and establish[ed]” the Constitution or- ganized themselves within overlapping spaces marked by phys- ical borders that play at least some role in structuring relation- ships between and among political units and their constituencies.10 This Article explores that role by considering multiple permutations of the “where” question in constitutional law. Thinking about how to apply the where component of con- stitutional law (as opposed to the who and what components) 8. For examples of articles discussing aspects of the “where” question, see infra notes 33–34. One can ask similar who/what/when questions from a different perspective. Instead of focusing on how the Constitution applies to private conduct (who is acting, what are they doing, where are they doing it, and when did it happen),
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