With the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy, I have decided to examine Judge Kavanaugh's views on the extraterritorial application of the Constitution. Because of his position on the D.C. Circuit, he has a higher than usual number of opinions in this area, largely as a result of that Circuit's role in overseeing appeals from detainees held at Guantanamo Bay, Cuba.
This is something of a mixed blessing - on the one hand, it provides a larger number of opinions to analyze; on the other, almost all of them involve questions of war, which tend to be treated differently than other areas of law. Nonetheless, an examination of Judge Kavanaugh's six opinions dealing with the extraterritorial application of the Constitution is useful.
Special thanks to dccircuitbreaker.org for compiling all of Judge Kavanaugh's opinions in one place for easy reference.Read More