In my post yesterday about the al-Awlaki affair, I asked whether substantial originalist work had been done on the question whether under its original meaning the Bill of Rights applied abroad. Will Baude writes to point me to this article, which I had forgotten: J. Andrew Kent, A Textual and Historical Case Against the Global Constitution (from the 2007 Georgetown Law Journal).
Here is the abstract:
The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim – called globalism in my article – has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among the intended beneficiaries of important provisions and structures in the Constitution. But in contrast to globalism's desire to deploy a judicially enforced Bill of Rights abroad, Against a Global Constitution shows that, as a textual and historical matter, noncitizens are to be protected through diplomacy, enforcement of international law by the U.S. government, and nonconstitutional policy choices of the political branches.
Apologies to Professor Kent, an outstanding scholar whose article is both comprehensive and persuasive.
On a quick review, though, it's not clear whether Professor Kent takes an express position on the application of the Bill of Rights to U.S. citizens abroad (the situation of al-Awlaki). As the abstract suggests, his focus is mostly on noncitizens. But it appears to me that there's a strong implication that U.S. citizens abroad (unlike noncitizens) were protected.
Posted at 11:00 PM