Beyond de jure and de facto boundaries: tracing the imperial geographies of US law

Centering jurisdiction

IR scholars and international lawyers tend to think and talk about jurisdiction—the authority to speak or enunciate the law—primarily in terms of territorial sovereignty. Territorial sovereignty is generally seen as coming before jurisdiction, in two ways. First, territorial sovereignty is seen as giving rise to jurisdiction, as providing grounds for the authority to speak the law. Second, territory—already-formed territory—is seen as setting the spatial extent of jurisdiction: a state’s jurisdictional boundaries are seen as normally limited by its existing territorial bounds. Such an approach has crucial implications for the study of jurisdiction: as Sundhya Pahuja (2013: 70) writes, it casts jurisdiction as “a technical question concerned with whether a particular sovereign state, or any judicial or quasi-judicial body constituted according to [. . .] law, can exercise legal authority over a territory, dispute, person or issue.”

Recent writings on jurisdiction by critical legal scholars (Dorsett and McVeigh, 2012; Kaushal, 2015; Pahuja, 2013) have called into question this view of territorial sovereignty as anterior to jurisdiction. These writings have instead stressed the “inaugural” quality of jurisdiction, the ways in which jurisdictional practices, rather than being carried out by already-constituted political communities, serve as important sites for the constitution and reconstitution of such community (with all the violent inclusions, displacements, and expulsions that such processes often involve) (Kaushal, 2015: 781–782). ³ In this article, I draw on this flipped characterization of legal authority, but I add an emphasis on practice. In my account, legal assertions not only form, border, and construct “the state”: they are the state. The state is instantiated in its jurisdictional assertions: it is “the ever-changing snapshot emerging from [multiple] jurisdictional assertions, the very pattern of assertions of jurisdiction, not an entity that ponders whether to assert jurisdiction or not” (Malley et al., 1990: 1296). Changing jurisdictional assertions do not simply change what “the state” does: they further change what the state is, who and what it includes and excludes, and crucially, where it is located.

Approaching the state as both constituted by and instantiated in its jurisdictional assertions effects a transformation in our understandings of the geographies of states and their borders. In particular, it enables us to better capture the imperial geographies of some states and their borders. Rather than entities that exert legal authority uniformly within, and only within, fixed lines-on-maps, states come to have multiple boundaries, formed in particular moments, through particular assertions. Territorial borders become only one among many legalized boundaries of state authority; territory becomes only one way of organizing and limiting state law. This opens up space to think about other (non- or less-territorial) legalized boundaries of state authority, other (non- or less-territorial) ways of organizing and limiting state law, ways that—far from being superseded at Westphalia or overcome with decolonization and the supposed universalization of the state form—actually exist in the contemporary world.

In IR scholarship, the primary place these other ways of organizing and limiting jurisdiction make an appearance is in the historical scholarship on territory (Elden, 2013; Ruggie, 1993). Such scholarship generally describes a shift in the organization of legal authority, variously identified as taking place sometime between the 14th century and the Peace of Westphalia: while prior to this period, multiple legal authorities had coexisted in given spaces, during this time period, governments for the first time began to claim exclusive authority over bordered spaces and the people they “contained.” I draw from this work a recognition of the historical situatedness and specificity of the territorial organization of jurisdiction, a recognition which opens up space to both consider multiple ways of organizing jurisdiction and investigate their techniques and micro-politics—as I do below. But I diverge from this work in emphasizing that such multiple ways of organizing jurisdiction are contemporaneous and contemporary, rather than successive or primarily of historical interest. ⁴

To capture the existence of multiple contemporaneous and contemporary ways of organizing jurisdiction, I employ the concept of jurisdictional rationalities, or modes of jurisdictional thought and action (Dorsett and McVeigh, 2012: 32). Much like political rationalities, different jurisdictional rationalities can be understood as different “conceptions of the proper ends and means of government” and law (Miller and Rose, 1990: 5). These rationalities can be distinguished by the particular “concept or category” around which jurisdiction is “centered” (for example, “territory” or the “national economy”) (Dorsett and McVeigh, 2012: 48). Different jurisdictional rationalities “engage” law differently: they are associated with different kinds of legal subjects, spaces, and institutions (Dorsett and McVeigh, 2012: 42, 48). For example, while “territory” (as a mode of jurisdictional thought and action) is associated with “sovereign-subject (or citizen) relations distributed in territorial terms” (Dorsett and McVeigh, 2012: 41), the “national economy” is associated with—and brings into being—other kinds of subjects and relations (for example, relations between the “United States” and corporations located abroad whose actions are understood as affecting prices within the United States). Conversely, as I show below, thinking about legal authority in terms of a national economy can erase sovereign-citizen relations, when such relations are understood as unimportant to the economy of the United States.

In subsequent sections, I examine the jurisdictional rationalities, the modes of jurisdictional thought, underlying US judges’ decisions about whether or not to extend US antitrust and labor laws to govern conduct “abroad.” I show that, while territory remains important as an organizing principle for legal authority, there emerged, in the postwar period, a new mode of thinking and talking about legal authority, which centered on the national economy. I show that, in decisions in this period in which judges considered whether or not to extend US laws abroad, they increasingly represented people, corporations, and activities in terms of their relationships to “US commerce” or “the US economy,” rather than solely in terms of where they were located, incorporated, or born. It is these relationships that served—and continue to serve—to make possible, or to preclude, the extension of US law.

These relationships—between various people, corporations, and activities and the “US economy”—are not ones that pre-exist the decisions in which they are invoked, although they are portrayed by judges as such. Such relationships are not found or noticed by judges: judges create them. For instance, as I will show below, judges draw on general economic “laws” to make connections between extraterritorial agreements to restrain production of a particular commodity and prices of that commodity within the United States. In so doing, they characterize the parties to such agreements as affecting the US economy, and so as subject to the legal authority of the US government. Of course, in defining particular people and activities as “part of” or as “affecting” the US economy, judges delineate the US economy itself. It is, in part, in and through particular legal decisions that the national economy is given form and limits, and is modified, over and over again. What this means is that the national economy is constructed in and through the decisions for which it serves as jurisdictional grounds. ⁵

I discuss this process of construction in subsequent sections. In doing so, I focus on judges’ reasoning, on the texts of their decisions. However, it bears mentioning that these decisions have material effects, in part because they are enforced. Enforcement is a complicated legal question in an international context: legal scholars generally agree that, while states may sometimes declare their laws applicable to particular kinds of conduct taking place anywhere in the world (a form of jurisdiction known as “prescriptive jurisdiction”), they may rarely legally “enforce” these laws or judgments in another state’s territory without permission (a form of jurisdiction known as “enforcement jurisdiction”) (Lowe, 2003: 338). Nonetheless, this general rule obscures the US government’s frequent use of “indirect territorial means” of enforcement (for example, the seizure of assets located within the United States, a ban on travel to the United States) to enforce the judgments of US courts (Ryngaert, 2008: 24–25).

Crucially, “indirect territorial means” for enforcement are differently available to different states. Enforcement, in particular, depends on the material capabilities and economic positioning of states. In theory, any government can employ the economic effects doctrine to apply its domestic law to conduct taking place abroad. In practice, however, it is the “presence of assets” within the territorial boundaries of a state that “giv[es] these expansive jurisdictional claims bite,” because it is against such assets that a legal judgment can most easily be enforced (Raustiala, 2009: 113). As such, the centrality of the United States to global economic activity is absolutely crucial in enabling the effective exercise of extraterritorial jurisdiction by US courts. This point is obscured by US governmental officials who have defended the extraterritorial extension of US laws by suggesting that other states could similarly extend their laws to govern conduct taking place abroad (Bell, 1978). But it is crucial in understanding the practices described in this article, and specifically, in understanding the uniquely-broad scope of US extraterritoriality, the relative ease with which the United States is able to extend its laws to govern conduct taking place anywhere in the world. ⁶

The emergence of effects-based extraterritoriality

In the next two sections, I show that, in the postwar period, the legal authority of the US government has come to be organized around the notion of the national economy. In this section, I demonstrate the importance of this notion in enabling the emergence of (economic) effects-based extraterritoriality in the 1945 Alcoa case. In the next section, I show the ways in which US judges have constructed the national economy in the decades following Alcoa—specifically, in ways that include US consumers and importers, but exclude US workers located abroad.

Prior to 1945, the United States and numerous European states routinely applied their laws to certain conduct taking place in much of the “non-European” world, for example, in China and Japan. However, with some exceptions, in relations between the former states, principles of international law and comity were understood to limit states’ legal authority to acts seen as taking place within their territorial boundaries. Within US law, the quintessential statement of this understanding could be found in American Banana Company v. United Fruit Company (“American Banana”), a 1909 US Supreme Court decision which—ignoring and obscuring the routine nature of US extraterritoriality outside of Europe—is sometimes described as marking the high point of strict territoriality in US law (Slaughter and Zaring, 1997: 3).

American Banana was an action to recover damages, brought by the American Banana Company against the United Fruit Company for the latter’s alleged violations of the Sherman Act of 1890 (15 U.S.C.A. §§ 1–2), which, among other things, bans certain contracts or combinations in restraint of trade, as well as the monopolization or attempted monopolization of trade and commerce. The plaintiff, American Banana, alleged that the defendant, United Fruit, had violated the Act primarily through its anticompetitive conduct in what was considered, at various historical moments and by different parties, to be Colombian, Panamanian, and Costa Rican territory. American Banana accused United Fruit of entering into quantity- and price-fixing agreements, and of instigating the Costa Rican government to seize goods and materials destined for American Banana’s plantation (American Banana, US Supreme Court, 1909: 354).

Justice Holmes, writing for the Supreme Court, dismissed American Banana’s complaint, holding that since the Sherman Act did not apply in Colombian/Panamanian/Costa Rican territory, the plaintiff had no legal basis on which to sue. The Court characterized its decision as dictated by “[t]he general and almost universal rule” “that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done” (American Banana, US Supreme Court, 1909: 356). Given this rule, the Court stated that “[f]or another jurisdiction, if it should happen to lay hold of the actor, to treat him according to its own notions rather than those of the place where he did the acts, not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent” (American Banana, US Supreme Court, 1909: 356).

For three decades after American Banana, Justice Holmes’ declaration—that “the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done”—remained dominant in US relations with European states. In the 1945 Alcoa case, however, the Second Circuit Court of Appeals, acting as a court of final appeal because of the Supreme Court’s inability to muster a quorum, reversed course. Specifically, Judge Learned Hand held that the US Justice Department could use the Sherman Act as a basis for the prosecution of a Canadian corporation, Aluminum Limited, for its acts in Switzerland (and specifically, for its entry into a cartel agreement that aimed at limiting production of aluminum). Justifying his decision, Judge Hand pointed to the effects that this agreement could be presumed to have on quantities of aluminum imported into, and on prices of aluminum within, the United States. Judge Hand contended that these effects brought into play the general rule that “any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends” (Alcoa, Second Circuit, 1945: 443, citations removed). ⁷

How are we to understand the Alcoa decision in light of the earlier American Banana one? When one engages in a close reading of the two judgments, what quickly becomes apparent is the very different rationalities, the very different conceptualizations of the proper means and ends of federal government and federal law underlying each decision: these rationalities render different courses of action legitimate and desirable in each case.

For Justice Holmes, the author of the earlier American Banana decision, federal government is about controlling and managing a bordered physical space. This understanding of the proper end of federal government is manifest in Justice Holmes’ concern with the locations of acts, his categorization of such acts as inside or outside particular lines-on-maps, and the fact that such categorization is determinative of whether or not he thinks US law is to apply (American Banana, US Supreme Court, 1909: 355). Justice Holmes writes: “In the first place the acts causing the damage were done, so far as appears, outside the jurisdiction of the United States and within that of other states. It is surprising to hear it argued that they were governed by the act of Congress” (American Banana, US Supreme Court, 1909: 355, italics added). And, as mentioned above, after listing certain limited exceptions, Holmes continues: “[t]he general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done” (American Banana, US Supreme Court, 1909: 356, italics added).

Justice Holmes’ understanding of the proper end of federal government (that is, the control and management of a bordered physical space) is particularly visible in what he does not discuss, and in particular, in his lack of attention to factors other than location. For instance, in American Banana, there is no discussion of the economic implications of the dispute at hand “in” or “for” the United States. There is no discussion of the possible effects of the defendant’s foreign anticompetitive activities on US banana prices or on the overseas opportunities of other US-incorporated companies. Even the injuries to American Banana, itself a US-incorporated corporation, are only mentioned when Justice Holmes summarizes the plaintiff’s claims (that is, not when he discusses the jurisdictional question) (American Banana, US Supreme Court, 1909: 355). Such effects are not yet seen as relevant to the question of legal authority, or, at least, are not the terms in which legal authority can yet be explicitly discussed.

In contrast, 35 years later, economic effects are central to Judge Hand’s decision in Alcoa: Judge Hand grounds the application of federal law in the presence of such effects within US borders. Yet, he does not identify any particular individuals or groups located within the United States who might be affected by Aluminum Limited’s agreement to limit production of aluminum. Instead, Judge Hand speaks in general terms about the effects of the aluminum cartel on imports and prices of aluminum, characterizing these effects as “consequences within [the United States’] borders which the state reprehends” (Alcoa, Second Circuit, 1945: 443–444). Implicit in the suggestion that the United States, as an entity, “reprehends” particular economic consequences is the notion of a single national economic unit with a single national economic interest: reduced imports and raised prices are bad for the United States itself, rather than for particular people or classes or even component US states.

Although he never actually uses the term, we can see the centrality of what we might today call a “national economy” to Judge Hand’s decision. This economy is made up of components like imports, exports and prices, which need not be identified with any particular individuals, classes, or component states, but can simply be identified with the United States These components are linked: Judge Hand feels comfortable setting up a presumption that reduced imports into the United States will lead to uniformly higher prices throughout US territory (Alcoa, Second Circuit, 1945: 444–445). These components are all cast as located within the United States, since effects on these components are described as consequences “within [the United States’] borders” that the United States reprehends (Alcoa, Second Circuit, 1945: 443–444). Yet they are also cast as vulnerable to economic activities, such as agreements to limit production, taking place abroad: for example, Judge Hand declares that “a depressant upon production which applies generally may be assumed, ceteris paribus, to distribute its effect evenly upon all markets” (Alcoa, Second Circuit, 1945: 444–445).

From Judge Hand’s discussion of effects in Alcoa, we can both extract, and see the implications of, a jurisdictional rationality that differs from the one at play in American Banana. In the American Banana decision, federal government is about governing a bordered physical space: as such, US law can be extended to govern, and only to govern, acts taking place within that bordered physical space. In contrast, in the Alcoa decision, federal government is not only about managing a bordered physical space (although it certainly is that). Rather, because that bordered physical space is cast as coterminous with a national economy, protecting that space involves protecting that national economy (including its components like imports, exports, and prices) as well. And given the ease with which economic effects are seen to travel across borders, a necessary means to the end of economic protection is the extraterritorial extension of US law.

The centrality of the national economy to Judge Hand’s 1945 decision, and its absence in Justice Holmes’ 1909 decision, is not surprising: at the time of Justice Holmes’ decision, no such construct was imagined to exist. As Timothy Mitchell (2005a; 2005b) and Hugo Radice (1984) have shown, in the United States, it was not until in the 1920s and 1930s that new practices of accounting, measuring, and calculating “formed. . .the economy as a new object of professional knowledge and political practice” (Mitchell, 2005b: 126). ⁸ The discipline of Economics was a particularly important site in this process: in this field, innovations (like the practice of national income accounting) and publications (like Keynes’ General Theory of Employment, Interest and Money) enabled the economy to, for the first time, be imagined as the “self-contained structure or totality of relations of production, distribution and consumption of goods in a given geographic space” (Mitchell, 2008, p. 1116; see also Radice, 1984: 121). ⁹ Developments outside the discipline, including in the legal field, also played a role in enabling this imagining of the national economy. For example, in domestic “Commerce Clause” decisions in the first half of the 20th century, federal judges began to link and draw together transactions and processes (like production, distribution, and sales) that they had previously represented as separate. ¹⁰ In addition, they began to consider the effects of previously “local” transactions on “national” economic indicators. These decisions paved the way for the Supreme Court, by 1942, to explicitly speak in terms of a national economy, which, in a series of later New Deal cases, it assigned to the federal government (rather than the United States’ component states) for protection and promotion (Wickard v. Filburn, US Supreme Court, 1942a: 125–126; A.B. Kirschbaum Co. v. Walling, US Supreme Court, 1942b: 520–521).

Judge Holmes was unlikely to suggest that the federal government had the authority to extend US law abroad to manage the US economy because he was unlikely to think in terms of such an economy at all. And, as Miller and Rose (1990: 6) write: “Before one can seek to manage a domain such as the economy it is first necessary to conceptualize a set of processes and relations as an economy which is amendable to management.” By the time of Alcoa, however, “[t]he birth of a language of national economy as a domain with its own characteristics, laws and processes that could be spoken about and about which knowledge could be gained” had enabled that national economy to “become an element in programmes which could seek to evaluate and increase the power of nations by governing and managing ‘the economy’.” (Miller and Rose, 1990: 6) ¹¹ As such, in Alcoa, Judge Hand was able to allude to a national economy as grounds for his extraterritorial extension of US law.

Delineating the US economy

In the previous section, I identified a jurisdictional rationality centered on a national economy and demonstrated its importance in enabling the extraterritorial extension of US law in a particular, and particularly-important, case. In this section, I move from identifying a jurisdictional rationality centered on a national economy, to demonstrating that the legal authority of the federal government of the United States has come to be organized partly in terms of that national economy. By this, I mean that people, entities, and conduct are often represented in extraterritoriality decisions in terms of their relationships to a national economy (rather than in terms of their citizenships or locations): it is these posited relationships that justify their subjections to particular US laws. These relationships are not self-evident or pre-existing, although they are often represented as such by judges, lawyers, and rationalist scholars of extraterritoriality (Putnam, 2009). ¹² Rather, judges construct these relationships in their decisions, articulating some to and disarticulating others from, the US economy: these articulations enable their extensions of, or refusals to extend, US law. In this way, in deciding against and for whom to bring into play the very material force of US law, judges draw the jurisdictional boundaries of the United States.

To clarify my argument, it is useful to return to Asha Kaushal’s (2015) discussion of the “inaugural” function of jurisdiction. To recap, Kaushal (2015: 782) describes the “second order manifestation of inaugural jurisdiction” as the “attachment of an individual, place, or event to a legal and political order”. This is not simply the attachment of an individual, place, or event to an unchanging order: rather, the very act of attachment transforms the order itself, modifying what it contains, where it begins and ends. Below, I show how judges, through their decisions, engage in the work of attaching some, and not others, to the United States: I further identify the shifting coordinates of the political and legal orders that emerge from these attachments and detachments. I do this through a comparison of two legal contexts: antitrust and employment/labor law. Several authors have pointed to a disparity in these contexts: US judges have frequently extended US antitrust laws to govern extraterritorial conduct, but have generally refused to do the same for US employment or labor laws (Putnam, 2009: 460; Turley, 1990: 601–602). I show how this disparity has been enabled by judges’ different articulations, in these two contexts, of particular people and conduct to the United States. ¹³

In decisions in which they invoke the effects doctrine, judges have articulated people and conduct to the US economy in two ways. First, judges have represented certain kinds of actors, activities, indicators, and goods as themselves part of the US economy. They have usually done so implicitly, without defending their decisions about membership but simply casting such membership as fact. Second, judges have represented people and conduct “outside” the US economy as affecting those actors, activities, indicators, and goods that they have already decided are “part of” the US economy. Again, they have usually done so without much explanation, often simply characterizing certain kinds of activities as the causes or consequences of others. Occasionally, however, judges have supported their causal assertions by citing basic and commonplace notions about economic tendencies and rules, making repeated references to, for example, the “laws” of supply and demand (Alcoa, Second Circuit, 1945: 44–45). Although they “may or may not be empirically valid on their own terms” (Weldes, 1999: 13), these causal relationships are important: they work to relate the allegedly causal actors or activities abroad to components of the US economy, and so to trigger Congress’ authority to protect that economy from externally-originating harm. As such, these relationships serve as “warranting conditions” (Weldes, 1999: 13), enabling extensions of US laws abroad.

Taking each of these moments of articulation in turn. First, judges have cast very different kinds of actors as themselves part of the US economy in the antitrust and labor contexts, that is, they have represented the composition of the US economy very differently in these two contexts. In antitrust cases, judges have represented US consumers as part of the US economy, so that their losses can be seen as national losses, their gains national gains. So, for example, as previously discussed, in Alcoa, Judge Hand described the higher prices of aluminum to be paid by US consumers as “consequences within [US] borders which the state reprehends” (Alcoa, Second Circuit, 1945: 443, citations removed). In addition, judges have represented US importers, searching for commodities abroad, as part of the US economy, so that interference with their business would amount to interference with the US economy itself. So, for example, in Occidental Petroleum v. Buttes Gas Company (Central District of California, 1971: 102–103), a US District Court stated that one US corporation’s interference with another US corporation’s “business of extracting and importing oil into the United States” through acts in the Persian Gulf would affect US commerce in ways that would, in theory, justify the extension of US law. ¹⁴

In contrast, judges have defined the composition of the US economy much more narrowly in employment/labor cases. In particular, they have failed or refused to characterize US workers located abroad as part of the US economy. For example, only 4 years after Alcoa, the Supreme Court in Foley (1949: 284) refused to apply a federal overtime pay law to the activities of Foley Bros, a US corporation, undertaking construction projects for the US government in Iran and Iraq: it refused to do so despite the fact that the employee in question, Filardo, was a US citizen. This refusal to cast US workers abroad as part of the US economy continued half a century later. So, for example, in 1991, in Aramco (US Supreme Court, 1991: 247–248), the Supreme Court refused to extend Title VII of the Civil Rights Act (banning employment discrimination on the basis of, among other things, race, religion and national origin) to govern the conduct of a US incorporated corporation in Saudi Arabia, even though the employee in question, Ali Bourselan, was a US citizen and the employment relationship had begun in the US In both these cases, there was no suggestion that the lost wages of US citizens, like the lost profits of US importers, might amount to losses for the US economy (despite the fact that US citizens are often taxed on their global earnings). Instead, in failing to mention or use the economic effects doctrine to extend US law in Foley and Aramco, the Supreme Court characterized the lost wages of US citizens as both localized and private, as theirs alone.

Judges have not simply represented the composition of the US economy very differently in the antitrust and employment/labor contexts. They have also represented the relationships between economic activities, markets, or indicators across national borders very differently in the two contexts. In the antitrust context, judges have emphasized the cross-border consequences of anticompetitive activities, linking activities in one state to economic indicators in others. In Alcoa, for instance, the Second Circuit (1945: 444–445) connected the contract to limit production, signed in Switzerland, to prices in the United States: it did so by invoking an economic “law” that “a depressant upon production which applies generally may be assumed, ceteris paribus, to distribute its effect evenly upon all markets.” In contrast, in the labor and employment contexts, US judges have routinely cast employment practices and labor markets in different states as unconnected and distinct. For instance, in the Foley and Aramco decisions described above, the Supreme Court never explicitly entertained the possibility that wages, hours or discriminatory employment practices outside US borders could have any effects on workers within what it considered US territory, despite the fact that the practices in question were those of US corporations employing US citizens abroad.

The economic worlds described by US courts in the antitrust and labor contexts are very different. In the antitrust context, courts have painted a picture of a world in which economic activities are not contained by national borders. In Alcoa, the Supreme Court went so far as to entirely ignore such borders, never mentioning how US tariffs might affect the “laws” of supply and demand. In contrast, in the employment/labor context, as in Aramco and Foley, courts have failed or refused to draw connections between working conditions across borders. There are many such connections that could be drawn. For example, courts could presume that discriminatory employment practices of US employers, of the kind at issue in Aramco, could result in greater unemployment within US borders, as discharged employees return home. Or courts could presume, using an often-invoked “race to the bottom” narrative, that weak employment laws abroad would lead to unemployment or to the lowering of labor standards within the United States, as American companies relocate to states that offered the most to employers, or threaten to do the same. In cases like Aramco and Foley, either presumption would have suggested the existence of sufficient effects within the United States to justify the extraterritorial extension of US law. However, rather than make any such connections, which are surely no more speculative than the connections invoked in antitrust cases like Alcoa, US courts tend to represent labor markets in different countries as unconnected, as distinct.

Contrasting extraterritoriality decisions in the contexts of antitrust and employment/labor law, we can see how US judges draw some into the reach of US law, and eject others from that same reach. Approaching the state as constituted by and instantiated in its jurisdictional assertions, these moves, when coupled with enforcement, can be understood as moments at which the state is brought into being in particular locations and at particular times (quite possibly, to move on again). These decisions can be understood as instances of boundary-making, as judges draw lines, in particular cases, between the inside and the outside. The above discussion shows that the resultant boundaries are not perfectly, or even roughly, coincident with the lines-on-maps that are often understood to mark the boundaries of US territory. Rather, it shows that the resultant boundaries are organized around the notion of the national economy, as the US state expands to incorporate those deemed to be significant, and contracts to eject those deemed unimportant, to that economy. ¹⁵

Crucially, when it contracts, the US state does not simply contract back to some fixed territorial boundaries. To suggest such a fixed minimum to contraction would be to suggest that, while US jurisdictional assertions sometimes exceed lines that are usually taken to mark US territorial borders, there exists a kind of core territory within which US law always and evenly applies. But no such space exists, as we can see if we approach states as instantiated in their jurisdictional assertions. For instance, even within the claimed territorial boundaries of the United States, the US government’s jurisdiction is routinely refused through Indigenous assertions of legal authority (Estes, 2017). In addition, there exist examples of US federal court cases in which, even within the claimed territorial boundaries of the United States, it is sometimes a posited relationship to a national economy that determines whether an actor or activity is subject to US law. ¹⁶

Conclusion

In this article, I have suggested that legal authority, and governmental authority more generally, does not derive automatically from control over territory, nor is it limited by territorial borders. Legal authority is not simply one aspect of territorial sovereignty: it is not simply a possession or a privilege of a territorial sovereign. Rather, territory itself is only one way in which, one principle around which, legal relations and legal authority can be organized (although it is a very important one). Other ways are not only possible, potential or imaginable: they actually exist, and not simply as historical relics. This article has demonstrated that the legal relations and legal authority of the United States are normally organized not only around territory, but also around a national economy. But there are still more organizing principles in existence, nationality or “the nation” being the most prominent. “Humanity” (Teitel, 2011) and “civilization” are two other examples: they have long-been important in constituting European legal authority in the “non-European” world (Anghie, 2005). In the US domestic law of jurisdiction and conflicts, “efficiency” and “rationality” also seem to play a role, as is evident from cases in which judges consider the “reasonableness” of particular jurisdictional assertions to determine the proper reach of US law (see, for example, Timberlane Lumber Co. v. Bank of America (Ninth Circuit, 1976) and Mannington Mills, Inc. v. Congoleum Corp. (Third Circuit, 1979)).

So, in this article, I have challenged the central position territory occupies in IR scholarship. I have shown that territory is not an originary concept, one that automatically gives rise to legal authority, but rather, is itself a product of law (among other practices). In addition, I have shown that that territory is not the only possible or actual organizing principle for governmental authority: many other organizing principles can and do exist. Both these showings are important in allowing us to think differently about the United States, in turning the United States from a fixed and stable territorial entity whose government occasionally exceeds its territorial boundaries, to one that has many different kinds of shifting boundaries—some territorial, some economic, some nationality-based, some based on notions of race and civilization.

To emphasize the shifting and multiple nature of boundaries is not to say that particular jurisdictional assertions and arrangements do not have long-term effects, or that the world that they produce has no fixity. Jurisdictional assertions and arrangements can (and do) enable the building of walls and fences, authorize permanent imprisonment or even execution, enable shifting distributions of “public” and “private” authority (Cutler, 1997), and make possible centuries of dispossession (Pasternak, 2017). But as such jurisdictional assertions change (through the construction of new organizing and authorizing principles, or through the reconstruction and modification of existing principles in particular contexts or cases), so does “the state” itself—and so should how we think about “the state.”

What is important to note, in conclusion, is that the boundaries of the United States that have been discussed in this article (based on territory, the national economy, nationality, civilization, and so on) are all formal and legal ones—which is not to say that they are either fixed or stable. The point can be missed if one thinks about extraterritoriality primarily in terms of, for example, class interests across borders, personal connections between police or military officials across borders, the use by the United States of “local intermediaries,” and so on. Such a focus sometimes gives the impression that, while legally the US government only has authority over territory, in actuality that government frequently (and subtly) acts abroad. This article has challenged this suggestion. It has shown that, rather than somehow opposed to or exceeding law, extraterritoriality is enabled by law. It has shown that, even purely in legal terms, many of the boundaries of US governmental authority lie outside the claimed territorial boundaries of the United States. Even purely as a juridical entity, then, the United States is not only a territorial one.