Injustice At The Border: Application Of The Constitution Abroad Through The Conflict Of Laws

Deciding whether the U.S. Constitution applies abroad is a complicated question and one that is not easily answered by looking at Supreme Court precedent. The problems of the current approach have been highlighted in recent years by the cases of Hernandez v. Mesa and Rodriguez v. Swartz, two cross‐border shooting cases where courts were unsure as to how or why different Amendments could protect noncitizen children killed in Mexico by U.S. government agents shooting from within the United States. This Comment surveys the precedents as well as the leading theories in extraterritorial application of the Constitution and shows why the landscape as we face it is unsatisfactory for dealing with cases like Hernandez and Rodriguez. Interest analysis, within the conflict of laws, asks courts to look at the purpose of a law domestically and to extend that law abroad if its domestic purpose would be served by doing so. I argue that under this approach, the Due Process Clause of the Fifth Amendment should be extended abroad because its domestic purpose in restraining arbitrary executive action is served by restraining that Executive no matter where it acts.

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