From Volume 85, Number 1 (November 2011)
This Article, however, takes a new approach. It analyzes Verdugo in the context of the Supreme Court’s treatment of aliens’ constitutional rights both inside and outside the United States. In doing so, this Article identifies the Supreme Court’s evolving approach to membership and highlights Verdugo’s pivotal role in the development of that approach. This Article suggests that the Court’s increasing extension of membership rights to aliens outside the United States and denial of membership rights to aliens within the United States is evidence of an emerging “post-territorial” approach to membership that rejects territorial presence as an accurate measure of membership. Rather, the post-territorial approach looks to more substantive indicators of membership, including community ties and mutuality of obligation, to afford rights. Ultimately, this Article examines Verdugo’s progeny through a post-territorial lens and concludes that lower courts that categorically deny certain classes of undocumented immigrants Fourth Amendment rights violate Verdugo’s post-territorial mandate by failing to evaluate the claimant’s substantive indicators of membership.