The Borderline Constitution

This Feature identifies and theorizes a distinct constitutional regime that federal courts have constructed at, adjacent to, and because of, the nation’s border. Drawing together strands of First, Fourth, Fifth, and Fourteenth Amendment law, along with habeas doctrine, constitutional torts, tribal sovereignty, and separation-of-powers concerns, this Feature demonstrates how constitutional guarantees systematically recede in the border’s shadow. These deviations from canonical and mainstream constitutional norms authorize intrusive state invasion of privacy and other fundamental rights, abdicate judicial oversight in favor of outsized executive discretion, and entrench racial and religious subordination.<br><br>The Feature further demonstrates that the effects of border exceptionalism do not remain geographically limited. Instead, the logic and tools of border exceptionalism increasingly migrate inward, shaping core doctrines in settings far outside formal border zones and impacting the lives of citizens and lawfully present noncitizens. This jurispathic diffusion can be traced through racial profiling of and diminished membership rights for Latine citizens; contracted habeas and due process protections; the erosion of constitutional tort remedies; and the normalization of militarized policing in mainstream doctrines with effects everywhere in the country. The result is a doctrinal migration capable of destabilizing our constitutional order writ large.<br><br>Finally, this Feature situates the borderline Constitution within the broader arc of constitutional development, identifying its affinities with anticanonical cases such as Korematsu v. United States, particularly in its reliance on militarized necessity and its willingness to subordinate equality to security. Unless repudiated or decisively constrained, the borderline Constitution threatens to transform locational exceptionalism into the rule. This Feature thus concludes by providing federal courts with a roadmap for paring back border exceptionalism, consonant with the reach and rationale of other bespoke constitutional locations.