Two Theories of Constitutional Rights

Today, I wish to discuss two theories of constitutional rights and what they mean for the extraterritorial application of the Constitution. There are other theories, some of which are examined in Professor Gerald Neuman’s excellent article “Whose Constitution?,” 100 Yale L.J. 909 (January 1991).

This post, however, focuses on two such theories: the social compact theory and the mutuality theory.

Social compact theory views the Constitution as a compact or contract between those who drafted it. Under this theory, based on the writings of political philosophers like Locke, Hobbes, and Rousseau, the Constitution is a compact which only applies to those members of society who have entered the compact. Under this view, the Constitution only applies to those who are members of the compact - namely citizens of the United States and those who have chosen to reside among them. This theory will be familiar to readers who have followed posts on United States v. Verdugo-Urquidez, in which Chief Justice Rehnquist relied heavily on this theory to justify his findings that aliens have no claim to the protections of the Fourth Amendment regarding searches of their property abroad.

Mutuality theory focuses on the idea that if the United States Government wishes to impose its will on individuals, it is obliged to provide the concommitment protections located in the document. Under this theory, if the U.S. wishes to bind individuals to its criminal laws, it would be required to provide all the protections that are designed to limit those laws, including, for example, the Fourth, Fifth, and Sixth Amendments. This theory animated Justice Brennan’s dissent in Verdugo-Urquidez.

Personally, I prefer mutuality theory. It only seems right that if we expect individuals to abide by our laws, we should extend them the protections that are meant to cabin government power. While it is true that aliens, particularly those living abroad, are not part of our political community, the question arises as to why they should be bound by our laws if that is the case. Under a strict reading of social compact theory, such governments were not entitled to extend their laws to cover aliens, as they were not a part of the compact.

Furthermore, there are numerous problems with social compact theory that would need to be addressed. Under a strict reading of the theory, even aliens present in the United States, but not seeking to become citizens, would not receive protections under the Constitution. Thus, the police would be entitled to conduct warrantless searches of tourists, or those here on student visas. They could deny due process to such individuals, as well as to foreign corporations who only have limited ties to the United States. Tourists and those on nonimmigrant visas could be subjected to cruel and unusual punishment, or tried for crimes absent the protections of either a grand or petit jury.

None of this is consistent with the way courts have interpreted the Constitution’s protections since the very founding. James Madison, speaking out against the Alien and Sedition Acts stated “it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection.” This is a powerful argument against social compact theory and in favor of mutuality.

The Court has only appeared to rely on the social compact theory to limit constitutional rights on two occasions. One was Verdugo-Urquidez. The other was Dred Scott v. Sanford, in which the Court held that slaves were not parties to the compact and thus could be denied constitutional rights. Given this checkered pedigree, it is not surprising that it has not come up more often.

One final note on the social compact theory - it’s not entirely clear to me that it is being violated in most extensions of the Bill of Rights to others. Because the Bill of Rights largely creates negative rights, that is, restraints on the government, the application of these rights effects U.S. citizens, who are subjects of the compact. The Fourth Amendment places limits on U.S. citizens, when it commands that searches conducted by the Government must be reasonable. The Fifth and Sixth Amendments limit what the Government may do without following certain procedures. Even the First and Second Amendment prohibit the Government from infringing on rights. Thus, the operation of the rights in question are to limit government actors, all of whom are members of the compact. Thus, even adopting the social compact theory, it is not at all clear that aliens would not be entitled to the protections, properly conceived.