Who does the Bill of Rights cover?

This Week | 2 Dec 01 | Bob Barr

[H.Akston]

Bob Barr just said on Sam and Cokie's show that the Bill of Rights is part of the Constitution, and the Constitution covers "persons", not just citizens, and "the Bill of Rights applies to all persons on our soil."

[BohDaThone]

"we the people of the United states" make the constitution -- but that doesn't mean we can't make rules about whatever happens in OUR country. Do you really think that a non-citizen arrested in a bar fight and tried for assault isn't entitled to:
--hire a lawyer
--trial by jury
-- confront witnesses, etc.

This would apply regardless of his legal or illegal status. IF he is illegal, he might be deported before he ever got a trial on the assault charge, but that is a separate question from whether parts of the constitution that apply to "persons" or that are a general restraint on government apply to everyone.

[Iwo Jima]

I read it recently in the paper but can't remember where. He was one of those being held at Mazar-E-Sharif when the uprising occurred in which the CIA agent was killed. He was (I'm not making this up) giving an interview to a Newsweek reporter in which he admitted supporting the 9/11 attacks!

Laugh? I thought I'd die! I'm glad that it's not our best and brightest who are giving aid and comfort to our enemies.

But I still want to see him hang. There are just too many people around who seem to lack any appreciation for the fact that fighting against the United States on the side of our enemies in time of war is an act of treason for which you will hang. "You mean, like, I can't just support whoever I feel like it? Get outta here! Like, who made up that rule, man?"

[general_re]

Verdugo-Urquidez, as I recall, involved a search which wouldn't pass muster under the 4th Amendment of a Mexican citizen in Mexico either by the U.S government (DEA?) or by the Mexican government at the urging of the U.S. government.

Quite right - Verdugo-Urquidez was arrested by Mexican authorities and extradited to the US, where he was subsequently arrested by the DEA. Following that, DEA agents accompanied Mexican officials in a search of his Mexican residence, and used evidence thus obtained to prosecute him in the US. To quote the basic findings of the Court, they said:

(a) If there were a constitutional violation in this case, it occurred solely in Mexico, since a Fourth Amendment violation is fully accomplished at the time of an unreasonable governmental intrusion whether or not the evidence seized is sought for use in a criminal trial. Thus, the Fourth Amendment functions differently from the Fifth Amendment, whose privilege against self-incrimination is a fundamental trial right of criminal defendants. P. 264.

(b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" [494 U.S. 259, 260] refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Pp. 264-266.

(c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters. Pp. 266-268.

(d) The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 . Indeed, the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment - which speaks in the relatively universal term of "person" - has been emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784 . Pp. 268-269.

They also went on to say that the precedent set in Reid v. Covert, 354 US 1 (1955) was not applicable, since Reid dealt exclusively with the protections afforded to citizens while outside the US; thus, relying on Reid was a mistake by Verdugo-Urquidez.

Now, contrast that with INS v. Lopez-Mendoza, dealing with the issue of whether the 4'th amendment applied to resident aliens (specifically, the exclusionary rule) during a deportation hearing - it does, but that didn't help in that particular case, IIRC.

My main point is this: it is patently wrong to say that the Bill of Rights only applies to citizens. However, it is too broad a statement to say that the Bill of Rights does apply to non-citizens. Most of the time it does, but the Supreme Court has identified some rather narrow circumstances in which it does not. Most of these rulings seem to be to be well-reasoned, and I cannot think of a single case which held that a particular amendment did not apply to a particular non-citizen for a particular reason with which I had serious disagreement.

Couldn't have said it better myself ;)

[Gumption]

Otherwise, nuts like me and you will be arguing about it on whatever these boards will become in a century, and nothing will have been resolved.

You mean like the way people still argue about whether OJ was guilty or not? My point being, either way there will be arguments about whether justice was served or not. I would rather ultimate result of the trial be the RIGHT result. I have more faith that the correct result will be reached in a military trial where only two thirds of the "jury" have to agree for the guilty to get their just deserts. I hate the thought of ONE nut on a citizen jury letting a terrorist that killed thousands of my countrymen, go free.

I really think a military Tribunal will better administer justice in such a highly exposed case as this. A regular trial would be a circus.

[Gumlegs]

You wouldn't have a source for that offhand, would you? I know some folks who would appreciate the irony of that...

You might look here.

[A.J.Armitage]

Thanks!

[general_re]

Many thanks!

[Gumlegs]

Glad to post something helpful. Happens about once a year or so.

[A.J.Armitage]

What's your opinion of post 136 on this thread.

It seems, to me at least, that there's a distinction between guys who just got off a submarine to cause damage and residents, even residents who are members of criminal conspiracies.

IMHO no one really knows what the procedures are currently or will be in the near future.

That's partly the problem I have with it. In Afghanistan is one thing, but I don't think it's a good idea or, probably, Constitutional to have them here.

[Gumption]

Where was Congress given the power to establish a religion in those ten square miles?

They were given practically unlimited power over the capital, but not, of course, over anything else.

Just as all states were free to establish a religion for their state. It wasn't until the 14th amendment that states were prohibited from establishing a state religion, or disallowing free speech and so-on. The 1st amendment only prohibited congress from doing those things, not state legislatures.

Although each state had such restraints already within their own state constitutions.

[exodus]

You, and every other man, have God-given, inalienable rights.
Our government is legally, by man-made laws,
required to refrain from interfering with those rights.
If you go to another country,
you may find yourself in a place where government
does not have man-made laws telling it to leave your rights alone.
That foreign government can legally infringe upon your rights,
but the rights given to you by God, as part of being a man, are still there.
They are just being interfered with by man-made laws.
# 119 by exodus
*******************

To: exodus
"And when you are in a foreign prison
or facing a foreign execution my dear,
that is a distinction without a difference."
# 133 by JD86
************

Laws, and the reasons for those laws, make no difference?
If you believe that, why did you become a lawyer?

It matters to me, JD86.
Without that "unimportant" distinction,
it doesn't matter if a law is just,
it only matters if it is the law.

[WhiteKnuckles]

I wish I'd come on the thread earlier, so more people could read my reply and not be confused by you. Lately I've become a sort of point man on the Constitution.

Announcement: All kneel before AJ!

[ninenot]

You cannot produce a Supremes ruling which states that non-citizens are entitled to constitutional rights. OTOH, I will grant ALL people "HUMAN" rights. This does not prevent the USA from expelling them, or capitally punishing them for spying, or conspiring against the USA, or causing mass destruction on US soil.

[exodus]

*******************

To: Gumption
"...I would like to know why we ask immigrants
to become citizens if they are entitled to the same rights as citizens?
What would be their incentive?..."
# 135 by susangirl
************

We don't ask them to become citizens.
They ask for the favor of citizenship.

The reason they ask for citizenship is the opportunity to enjoy their rights.
Historically, governments infringe upon a man's rights.
People come here because they believe that they deserve better.

[Luis Gonzalez]

The constitution is a document designed to limit the power of government, it details HOW it should work, and the specific reponsibilities of each branch. IOW, it is an employee manual for public servants. The Bill of Rights again addresses the government telling them VERY specifically what rights are not up for discussion, they are ours and "Congress shall make no laws..."

The short answer lies in the Declaration of Independence. Where the constitution is a practical document, the Declaration deals with principles, and beliefs, the ideas drove the Founders to revolt. I don't think that you can read one without the other.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by God with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness..."

Rights are granted by God to all men, and in THIS country, they are protected from government by a Constitution.

Having said that, foreigners do have rights under the Bill of Rights, AND they are expected to obey the laws of the land as well---a citizen of Denmark traveling in the US on vacation WILL be arrested for possesion of marijuana because US laws apply while he's here. If US laws apply to him while he's here, so does due proccess. He will be deported, but a Judge has to say so, it isn't a case of the arresting officer driving him to the airport and telling him to leave.

One last thing, if the Bill of Rights does not apply to foreign nationals visiting the US, what stops me from grabbing a bunch of people traveling in from Japan on their way to a Disneyland vacation and making them my slaves?

[ODDITHER]

Let's take a look at this. For you to say that illegals or non citizens have the same rights as citizens are afforded under the constitution - is at best backwords logic. That means at the time the constitution was established, that only governments had rights and they allowed us a few when they past the constitution. Your logic holds but only if you feel that it is the government giving us our rights.

I happen to believe as I feel my forefathers believed, that the government has no rights, unless the citizens of the government allow them to have rights. Following this thought process, the only way Osama etc would have rights is for him to be a citizen unles you believe it is the government that bestows rights upon it's citizens.

Having said that, I feel that we as citizens have passed laws over the last 200 years that spells out how non citizens should be treated. If there is no law, there is no protection, because what is not reserved for the government is held by the citizens and that does not include aliens and illegals. It especially does not include Osama.

[MadameAxe]

The government prohibits convicted felons from owning firearms. Is this unconstitutional?

Yes.

[JD86]

Dear exodus, let me use little words. If you are in a foreign country...that means not the United States, then it does not matter in that country what the laws are in the United States, what the Constitution of the United States says, or whether any of the United States legal system is valid.

I understand your argument, in your opinon, your inalienable rights come from your Creator, and no government can either give them to you or take them away. I am telling you that is a wonderful argument to make in America. But in all the other countries of the world...they would consider it so much babbling as they led you away. They don't care about your inalienable rights, they don't care about your rights period. And they certainly don't have laws to protect you. Thank all you hold holy that you live in the United States. And if you don't think that is true. Thank all you hold holy that you are free to leave the United States any time you so choose.

[Bloody Sam Roberts]

"WE THE PEOPLE OF THE UNITED STATES", and that not everyone on this soil is "OF THE UNITED STATES"?

Also, I believe the 14th Amendment narrows it down a bit further.