What constitutional rights, if any, do foreign nationals have when the United States acts against them outside its own borders? Professor Gerald Neuman ’80 addressed that question in a Dec. 2 lecture marking his appointment as the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law.
"Gerry's work is immediately recognizable by its trenchant and piercing analysis," said Dean Elena Kagan '86 in her introduction of Neuman. " He brings the brilliance and precision of a mathematician to some of the most tangled questions of our time, which also happen to be some of the most important questions of our time. As a lawyer and as a scholar, he has done work of truly fundamental consequence."
In his lecture, Neuman, who joined the HLS faculty in 2006, reviewed the limited Supreme Court case law on the extraterritorial applicability of the Constitution, and he criticized the view of some jurists that “foreigners outside our borders have no rights that we are constitutionally bound to respect.” Instead, Neuman said, he favors the development of a doctrine that he refers to as “global due process.”
Neuman traced the doctrine to a concurrence by Justice John Harlan in a 1957 case, in which Harlan suggested that the proper inquiry should focus in each case on whether the application of a particular right in particular circumstances in an overseas location would be ‘impracticable and anomalous.’ If so, the right should not be extended; if not, it should apply.
While the doctrine suffers from “indeterminacy” and other problems, Neuman said, it is worth exploring further and refining.
The Armstrong professorship was established in 1996 by the Reed Foundation in honor of its director and treasurer, J. Sinclair Armstrong ’41. The Reed Foundation supports programs in the arts and education, as well as social services and civil rights, and it endowed the Armstrong chair in order to establish a professorship of international, foreign and comparative law with a preferred focus on individual rights.
Click here to watch a webcast of the lecture.