In holding that the reach of the Constitution is to be measured functionally, not formally, a majority in Boumediene resolves a question previously muddled by plurality opinions.
Whether U.S. agents must adhere to the U.S. Constitution when acting outside U.S. territory is a question various courts have answered in different ways. As I'd outlined here when Rasul was pending (Pages 295-99), a line of splintered decisions that I've called "maximalist" indicated that the Constitution always constrained agents abroad. A "minimalist" line indicated the opposite, and neither expressly overruled the other.
A close reader of Justice Anthony M. Kennedy's concurrence in one of the latter cases, United States v. Verdugo-Urquidez (1990), might have expected that when give the chance, he would reconcile the two lines with a midway approach; that is, by taking the lead of Justice John Marshall Harlan in Reid v. Covert (1956) (concurrence) and hold that whether the Constitution applied in a particular extraterritorial instance required careful reviews of all the circumstances.
And today, that is exactly what Kennedy did as he wrote for the court that "practical considerations" compelled extension of the constitutional privilege of habeas corpus to noncitizens detainees held at Guantanamo.
TODAY IN SLATE
The Democrats’ War at Home
How can the president’s party defend itself from the president’s foreign policy blunders?
The Democrats’ War at Home How can the president’s party defend itself from the president’s foreign policy blunders?
Congress’ Public Shaming of the Secret Service Was Political Grandstanding at Its Best
Congress’ Public Shaming of the Secret Service Was Political Grandstanding at Its Best Darrell Issa’s public shaming of the head of the Secret Service was congressional grandstanding at its best.
Michigan’s Tradition of Football “Toughness” Needs to Go—Starting With Coach Hoke
A Plentiful, Renewable Resource That America Keeps Overlooking
Windows 8 Was So Bad That Microsoft Will Skip Straight to Windows 10
Cringing. Ducking. Mumbling.
How GOP candidates react whenever someone brings up reproductive rights or gay marriage.
Building a Better Workplace
You Deserve a Pre-cation
The smartest job perk you’ve never heard of.
Hasbro Is Cracking Down on Scrabble Players Who Turn Its Official Word List Into Popular Apps
Florida State’s New President Is Underqualified and Mistrusted. He Just Might Save the University.
Political Theater With a Purpose Darrell Issa’s public shaming of the head of the Secret Service was congressional grandstanding at its best.
Who Owns Scrabble’s Word List? Hasbro says the list of playable words belongs to the company. Players beg to differ.
Behind the Scenes
Meet Jordan Weissmann Five questions with Slate’s senior business and economics correspondent.
Should You Freeze Your Eggs? An egg freezing party is not a great place to find answers to this or other questions.
Goodbye, Tough Guy It’s time for Michigan to fire its toughness-obsessed coach, Brady Hoke.