Con Law 101: To Whom is Due Process Due?

US Constitution

In response to my post yesterday about the U.S. Supreme Court’s welcome decision re-establishing the fundamental constitutional principle of habeas corpus against the Bush administration’s extraordinary challenges, some guy named Claude chimed-in to assert that the U.S. Constitution only applies to American citizens.

Ordinarily, I respond to readers’ comments as further comments in the thread to which they were originally posted. There are times like this, however, where the comments are so profoundly stupid and so characteristic of disturbing trends in public discourse that they must be addressed in a separate essay.

Where do idiots like Claude get the idea that the U.S. Constitution applies only to American citizens?

True, some of its rights – like voting and running for office – are reserved to citizens. But the only people I have ever heard argue that the constitutional due process rights do not apply to non-citizens are the putative “patriots” on the right who have never taken the time to read the Constitution, much less the cases that comprise the United States Supreme Court’s interpretation of it. Not even Justice Scalia would stand by you on this one, Claude.

Had Claude and his ilk actually read the Fifth and Fourteenth Amendments, they would have found that basic constitutional due process protections apply to all individuals, not just citizens. The Fifth Amendment, which defines due process rights vis-à-vis the federal government, expressly applies to all persons, not just to citizens:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fourteenth Amendment, which extends due process and equal protection to circumscribe to the power of state governments, displays a crystal-clear distinction between the “privileges and immunities” attaching to citizenship and the broad constitutional rights enjoyed by “any person” within United States jurisdiction:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Both Claude and the Bush administration raise the territoriality argument – which asserts that since things like captivity in Guantanamo Bay, Cuba and American-directed torture in foreign countries (the heinous process of so-called “extraordinary rendition”) occur off U.S. soil, the U.S. Constitution does not apply. There are two ways of addressing this point. The first is with simple legal analysis, like that provided by the Court in yesterday’s opinion:

[T]he Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

Boumediene v. Bush, 533 U.S. ___ (2008), Slip Opinion at 35-36.

The second, even simpler refutation of the territoriality argument is found in conscience and basic social vision. Ask yourself: do you want America to be the kind of country where the government can actively deny individuals their basic human rights simply because it has the wherewithal to do so abroad?

I find it astounding that the flag-waving (lapel-pin-wearing) jingoists of the right have such low aspirations for the country they purport to love. In truth, they seem to love nothing more than the comforts and privileges that attach to their citizenship; and few seem to have taken the time or made the effort to understand and appreciate the beautiful constitutional structure which helps to ensure them this way of life.

7 Responses to “Con Law 101: To Whom is Due Process Due?”

  1. 1 Claude 13 June 2008 at 3:03 pm

    Geez, it only took one comment to get you off on a roll. I wonder why the New York Times refuses your opinion pieces. Maybe you should send them to The Wall Street Journal where idiots like me, you know, stupid right wingers make editorial decisions.

    Leaving all your utopian thoughts aside this is question of the law as it is written, not about how you wish to interpret it.

    Let me help you think through this, I know it might be difficult given your advanced delusional state, but please bear with me…

    QUESTION: Who ratified the “United States” constitution?

    A) England
    B) Holland
    C) France
    D) The people of the “United States”
    E) All of the above

    Take your time. You can answer in a comment or in a discourse.

    Article VII

    The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

    Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

    {states and their representatives are listed}

    A covenant between the states? Who would have thunk!!

    Now, unlike you, I wasn’t lucky enough to be born in the U.S. and be granted rights without understanding or realizing how unique they are. In fact, I chose to become an American citizen in my late twenties, after gaining a lot of understanding and respect for this great country, its traditions, and its laws. Yes, that would also include the constitution, its divine inspiration, its adoption and all the other things you wish people would stop talking about.

  2. 2 mbjesq 13 June 2008 at 3:31 pm


    Please understand how tiresome and dangerous it is when your right-wing brethren spout-off flat-ass-wrong statements of constitutional law, while labeling the correct understanding as “ignorance”. This is exactly what you did, without so much as a touch of appropriate irony.

    If I was a little tough on you, forgive the invective.

    Nice pedagogical touch with multiple-choice quiz and citation to Article VII! But what the hell does this have to do with the questions of whether the due process rights conferred by the U.S. Constitution apply to non-citizens? Ummm… nothing.

    The easiest way to avoid being called out for ignorance is to only open your pie-hole when you know what-the-fuck you are talking about. (I confess I would do well to take my own advice at times — though I am quite on solid ground in this conversation.) Case in point: I was born in Europe and became a naturalized American citizen in my early teens. Oh well. Sometimes nothing breaks right for you in an argument.

    Anyway, I’m actually glad you voiced the constitutional-rights-for-Americans-only meme, since you are hardly alone in the view, it has relevence in a number of important legal contexts these days, and it needs setting straight.



  3. 3 Anonymous 14 June 2008 at 10:09 am

    Shudder. Makes me think of con-law all over again.

    MBJ, your piece was good stuff. And I’m not talking about taking sides in a political or a policy argument. I’m talking about the law. Are you listening, Claude? More important, are you reading. With an open mind, that is, willing to learn? Or reading at all? Poor Claude. So righteous. So sure of himself. Claude, you won’t find this axiom in the Constitution but it’s not bad advice: Listen to reason.

  4. 4 Anonymous 26 October 2008 at 7:36 pm

    Hey mbjesq you Said

    “True, some of its rights – like voting and running for office – are reserved to citizens.”

    In the constitution of the united states does it say that a citizen has the right to vote? I can’t find it. What i mean does the constitution mention voting being a right?

  5. 5 mbjesq 27 October 2008 at 1:15 am


    You are right: I overstated the point. The Constitution does not spell out all the requirements and disqualifications for voting privileges — even though it seems a natural subject for the Constitution to have treated in detail.

    The limitation is implied in the both Fifteenth and Nineteenth Amendments, which extended suffrage to non-whites and women, the basic criterion of citizenship is clearly stated: “The right of citizens of the United States to vote shall not be abridged by the United States or by any state…” There is similar language in the Twenty-Sixth Amendment, guaranteeing the vote to citizens eighteen years of age. But these clauses are absolutely not the same as mandating that citizenship is a pre-requisite to voting.

    Indeed, the Fifteenth and Nineteenth Amendments were passed at time when non-citizen residents were still entitled to vote in a number of states. That practice extended from the founding of the country until 1926, when Arkansas, the last of the 24 states to permit voting by non-citizens with declared intentions to become citizens, made citizenship a strict requirement. Eighteen other states have at one-time permitted resident non-citizens to vote in all elections, whether or not they had any intention of gaining citizenship.

    I do not know whether any challenge to the granting or rescinding of voting rights to non-citizens has ever reached the Supreme Court — perhaps you can look that up — but I would strongly suspect that either scheme would be deemed constitutional.

    Thanks for the question. My statement was literally true: the right to vote is presently limited to U.S. citizens; and those limitations are no-doubt constitutional. But the careful language of my conclusion was fortuitous, not informed. I had misinterpreted the text of the Fifteenth, Nineteenth, and Twenty-Sixth Amendments; and I did not know the extensive history of alien voting rights in the United States before your inquiry prompted one of my own.

    Shit, I’m more like Claude everyday! The sad thing is: we all are. Somehow we blunder through. The important thing is to challenge preconceptions and get at the truth of the matter – eventually.



  6. 6 Anonymous 28 October 2008 at 8:24 pm

    15th Amendment text.

    Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

    Section 2. The Congress shall have power to enforce this article by appropriate legislation.

    19th Amendment text

    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
    Congress shall have power to enforce this article by appropriate legislation.

    I understand these two amendment to say that voting can not be denied based on race, sex, color, or previous condition of servitude. I don’t think they imply a right to vote.

    I am thinking that the founders did not exclusively put the statement that their is a guarantied right to vote because they thought America would be a representative republic not a majority rule (democracy). I know democracy sounds very good and is talked about every where as being great but democracy simply is two wolves and a sheep deciding what to eat for dinner.

  7. 7 Marissa Regan 27 May 2010 at 12:47 am

    If only more people could read this.

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