BY ANDREA SAENZ
“Where is the United States?” Professor Gerald Neuman asked the audience in Memorial Hall during Harvard University’s observance of Constitution Day. “And where do constitutional rights apply?”
Professor Neuman, the Armstrong Professor of International, Foreign, and Comparative Law and a recent addition to HLS’s all-star faculty in constitutional and international law, gave Harvard’s second annual Constitution Day lecture, entitled “The Constitution and Human Rights in the War on Terror,” on September 20th. The program is required by federal statute; in 2004, President Bush signed an appropriations bill that contained a rider by Sen. Robert Byrd (D-WV) setting up the requirement. Every educational institution receiving federal funding must have an educational program on or around September 17th, the day the U.S. Constitution was signed in 1787. Last year Professor Laurence Tribe gave the inaugural lecture.
Neuman spoke at length about the challenge of “operating under an 18th century constitution in a 21st century world,” noting that while Americans are proud that our constitution has been rarely amended, it leaves many modern questions unanswered. Reading aloud the text of the 1st and 5th Amendments, which deal with free speech and rights of the accused, Neuman noted the Bill of Rights’ central ambiguities: “Who has rights, and where do they have rights?” These issues are both timely and controversial, coming up in the question of the rights of detainees at Guantanamo Bay and the treatment of supposed terrorists generally.
The issue of who has the rights outlined in the Constitution, Neuman explained, first became an issue with the Alien and Sedition Acts, which curtailed speech criticizing the government and gave broad discretion to deport aliens. Some supporters of the acts argued that the laws could not be unconstitutional because aliens had no rights.
Although the acts were never tested in the Supreme Court, later courts generally assumed that aliens did have rights. However, courts did not extend constitutional protections to all within United States borders. Neuman pointed to the Dred Scott decision, which refused to grant full personhood to blacks. “Dred Scott is the nightmare of U.S. constitutional law,” said Neuman. “It is the exemplar of the harm judicial review can do when badly exercised.”
The Civil War produced the most fundamental constitutional revision yet, in the form of the 13th and 14th Amendments. These amendments outlawed slavery, explicitly gave constitutional protections to everyone born in the United States, and required individual states to respect constitutional rights. In more recent years, the Supreme Court has held that everyone in United States territory is covered by constitutional protections, even illegal aliens.
Originally, however, there was a robust debate about whether the Bill of Rights applied to parts of U.S. territory not defined as states, such as the Western territories and the District of Columbia. Courts eventually agreed that basic constitutional rights applied on all U.S. territory. However, this doctrine was called into question when the United States began to acquire colonies after the Spanish-American War. The status of residents of the Philippines, Guam, and Puerto Rico was unclear. Neuman outlined the questions courts had to face: Would applying the Constitution make governing these territories too difficult? Would residents get to be citizens?
In the early 20th century Insular Cases the Supreme Court voted narrowly that that “not all of the Constitution would follow the flag.” The court made a distinction between areas “incorporated and destined for statehood,” such as mainland territories, which are entitled to the full Bill of Rights, and “possessions appurtenant to the United States,” such as the Philippines, where only fundamental rights, like habeas corpus, apply. The decision, said Neuman, was “frankly racist in denying citizenship to colonial peoples. The Supreme Court wasn’t ashamed of that. It was highly fashionable.” He then noted that, as strange as it sounds, the Insular Cases are still good law and the legal framework for Puerto Rico, Guam, and other overseas possessions.
The Court also believed that the Constitution had no application outside U.S. territorial boundaries, even to follow U.S. citizens. This interpretation changed in the 1957 case of Reid v. Covert, which involved military trials of citizens’ wives. The case, which held that the Constitution protects U.S. citizens in foreign countries, was a watershed decision that rejected the idea that the Constitution stops at U.S. borders, even though Congressional powers do not. However, there were limits to the extension of rights. U.S. v. Verdugo-Urquidez held that the 4th Amendment does not protect nonresident aliens against extraterritorial searches of their property by U.S. agents. Justice Anthony Kennedy – who is still on the bench, noted Neuman – said it would be “impracticable and anomalous” for US magistrates to issue warrants in that situation.
With this thorough history concluded, Neuman turned to issues of constitutional boundaries in the current war on terror. Neuman laid out his position on human rights violations explicitly: “I can’t emphasize enough that terrorism is a terrible thing,” he said. “That it involves a horrendous violation of human rights. But terrorism is not the only terrible thing in the world. Counterterrorist operations must have some limits, especially for the sake of the innocent, and sometimes even on behalf of the guilty. And maybe some of those limits should be defined by law.”
Neuman explained that after 2001, detainees at the U.S.’s base at Guantanamo Bay were told they had no right of habeas corpus because they were outside the United States. Lawyers for the detainees argued that being subject to U.S. governing power should be enough to bring the most fundamental protections into play, regardless of whether they were in U.S. territory, and also that Guantanamo is in fact U.S. territory, since the U.S. rules it under a colonial lease from Cuba in perpetuity. This status is parallel, said Neuman, to the Panama Canal and western trust territories in Pacific Ocean, where rights were previously applied.
The recent cases of Rasul v. Bush (2004), Hamdi v. Rumsfeld (2004), and Hamdan v. Rumsfeld (2006) further strengthened the idea that detainees in the war on terror were entitled to some constitutional protections, while leaving plenty of ambiguities to be addressed in the future. In Rasul, five justices said detainees could challenge their detention in federal court, but were not explicit about what factors about their situation were sufficient to entitle them to that right. In Hamdi, the court agreed that U.S. citizens were entitled to fair procedures determining innocence, especially while on the U.S. mainland, but “fair” may depend on the circumstances. Most recently, Hamdan’s ruling that a man found to be an “enemy combatant” could bring a habeas challenge suggested that the right did not come only from being innocent or not yet proved guilty.
But many complexities remain. Neuman explained that if the detainees at Guantanamo are truly “hostile” to the U.S., courts have never found that hostile enemies have rights in a “real war between nations.” The problem, said Neuman, is figuring out “how that applies to an amorphous conflict against a loose alignment of foreign terrorists which may last forever”
Neuman acknowledged that answers to these and other questions will continue to emerge and be refined. The Constitution of 1787 , said Neuman, “began a process. It is the origin of our constitutional law, but it is not all of our constitutional law. Our constitutional system has evolved over time. It has passed through different epochs, it has made false starts and corrected them.”
Neuman concluded the address by turning some responsibility for these issues up to his audience. “The Constitution is still republican as well as liberal,” he said, “which means it leaves many question to political ac
tion. Which means you.”