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.