Phase II Internalization – The Transnational Incorporation Doctrine
The Need for Domestication
As previously stated, most of the fundamental human rights contained in the Lexington Principles are already protected under the Due Process Clauses of the U.S. Constitution. The work of the Lexington Principles Project would not have been necessary, but for two early interpretations of these Clauses pertaining to applicability. Although the language of the Fifth Amendment's Due Process Clause places no qualifications on its seemingly unambiguous mandate that "no person" shall be deprived of life, liberty, or property, without due process of law, the Supreme Court had interpreted both a territorial limitation and a nationality requirement into its text.
In the landmark decision of Boumediene v. Bush, the Supreme Court moved away from this precedent by extending the constitutional privilege of habeas corpus to noncitizens detained by the U.S. government at an extraterritorial detention facility at Guantanamo Bay, Cuba. Courts will now be required to step in to determine the extent of due process to be afforded in these circumstances. The Lexington Principles document provides the transnational foundation on which to base these extraterritorial guarantees by laying the groundwork for selective incorporation of the most fundamental international human rights law protections into our understanding of due process under the Fifth Amendment to the U.S. Constitution.
Introducing the Transnational Incorporation Doctrine
The Transnational Incorporation Doctrine, first developed for the Lexington Principles, asserts that there are some rights under international human rights law that are so fundamental that they should be included in our understanding of the right to due process of law under the Fifth Amendment to the U.S. Constitution. Because international human rights are universal, this new interpretation would result in universal application of the Fifth Amendment's Due Process Clause with respect to incorporated rights. Nationality and territoriality would play no role in determining their applicability. Rights incorporated through this mechanism would be universally applied to all human beings, and these protections would have a domestic legal status equivalent to all other due process rights. The Ninth Amendment states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This seems to indicate that the Framers of the Constitution intended to allow for just such an evolution in our understanding of rights fundamental to the American scheme of justice.
Jurisprudential Precedent in American Constitutional Law
The Transnational Incorporation Doctrine was inspired by the U.S. Supreme Court's substantive due process jurisprudence related to the incorporation of fundamental rights into the Fourteenth Amendment for application to state and local governments. Originally, the rights contained in the Bill of Rights applied only to the federal government and did not restrict the actions of individual states or other political subdivisions. After the American Civil War, the Fourteenth Amendment was ratified ensuring that no state government shall "deprive any person of life, liberty, or property, without due process of law." Although the Fourteenth Amendment did not explicitly specify all of the protections listed in the Bill of Rights, the Supreme Court held – in a series of cases - that the majority of such rights were incorporated into the Fourteenth Amendment and thus binding on state and local governments by virtue of the substantive rights implicit in the concept of due process. The Supreme Court spent 100 years fleshing out its incorporation doctrine, and the famous debates surrounding it are among the most legendary in the Court's history.
Possible Methods for Application
In order for the Transnational Incorporation Doctrine to be applied, the proper standard for its application must first be determined. When applying its incorporation doctrine to the Bill of Rights, the U.S. Supreme Court employed several different standards over the years. The most recent test used to determine whether a specific right should be incorporated into the Due Process Clause of the Fourteenth Amendment was whether the right in question is "fundamental to the American scheme of Justice." With this standard in mind, we drafted Principle 22, which recognizes the right to substantive due process. This Principle states that:
"Implicit in the fundamental right to due process of law is the requirement that no State should deprive any person of life, liberty, or security of person in violation of any right fundamental to accepted principles of global justice."
Although the standard ultimately applied by the courts may differ, we believe that Principle 22 accurately represents the essence of any such substantive guarantee.
*The Lexington Principles Project is an independent international project on the rights of detainees hosted and supported by the School of Law and Washington and Lee University Institute for Honor. Its members hail from many different disciplines and institutions.