Can We Agree on the Meaning of the Bill of Rights in Wartime?

Lately, a whole lot of people around here seem to be exercised over the issue of whether the Constitution applies to "citizens only," or to the more generic category, "people." Must have been something President Bush or Attorney General Ashcroft said….

Well, I offered the result of my humble attempt at rational analysis, with the amusing result (hey, even I find it funny) of being screamed at and chastised, in 36-point type, for my dim-witted ignorance; and was in so many words accused of being a dunderhead, a horse's patoot, a "dunce." (Hey, maybe it's all true. :^) )

But I wasn't the only one to receive what passes for "civil treatment" in the now-typical style of FR discourse. An unfortunate colleague was taken to task for reaching conclusions similar to mine. He was accused of being a "cretin with an IQ of dog slobber," someone so dim he couldn't even "tell what planet [he] was on." Then the unkindest cut of all: "It wouldn't be fair to hold you to the same standards I would somebody half as smart as Al Gore."

By the way, the folks advancing these judgments are of the party maintaining that unalienable human rights pertain to persons, not to citizens as such. What these seemingly crazed individuals fail to appreciate, however, is that I do not disagree with this conclusion. And neither, I suspect, does my much-abused colleague.

Still, there is the appearance of a preponderant majority of opinion on this question at FR, judging from the replies I've seen; and their collective finding contradicts the finding of the tiny dissenting opinion seemingly represented only by my colleague and me.

Now if majority opinion were all that's needed to establish truth, then we could all just go home now and get a good night's sleep. (If this "test of truth" satisfies you, dear reader, stop reading immediately and find something better to do with your life and time, because you're wasting both here.)

But I wouldn't be able to sleep at all, under such conditions. The idea that truth rests on majoritarian opinion is the very foundation of popular or mass democracy.

BUT -- our Founders gave us a republic. When the lady asked Benjamin Franklin what the Framers had wrought - in secret council - during that sweltering summer in Philadelphia, he replied: "A republic…if you can keep it." It seems to me there is no way you can keep a republic if your standard of truth is the Public Opinion Poll.

So may we return to the merits of the case, and let each person make his own judgment as he or she will?

One of my correspondents takes what I understand as a "negative reading" of the Bill of Rights ("BoR"). I don't disagree with him on this point: Clearly, the BoR operates as a constraint on the federal government, prohibiting it to interfere in certain areas of personal autonomy (which in the view of this writer, are certain divinely-constituted inalienable rights vested in all human persons qua persons, be they citizens of the United States or not) -- without due process of law.

I'm afraid we can't just dispense with the latter, this idea of "due process," just wish it away -- because it's fundamental to the concept of ordered liberty - which is what a constitutional republic is all about.

If I might digress for just a moment: This whole idea of God-given (or "innate" or "natural") human rights that governments are prohibited to violate is the distinctive, uniquely American contribution to the theory of just political order -- which is a very ancient problem.

This is an understanding wholly unprecedented in human history, in that Americans have actually tried to realize the theory in actual practice. This "theory" extends the idea of innate human liberty and personal sovereignty to all persons, everywhere. And the Americans have the sheer temerity to make precisely this insight the very foundation of their rule of law.

BUT - that is not the same thing as saying that the U.S. Constitution applies to anyone, living anywhere. It has been consciously, deliberately constituted by a specific people, for the benefit of a specific people. It is definitely not the same philosophy that has been adumbrated and "officialized" by the United Nations: Compare the U.S. Constitution with the U.N. Declaration of Human Rights. Then judge for yourself: Which of these rival conceptions most pertains to the way real human beings actually live their lives: In families, communities, states/provinces, and sovereign nations?

Or do people really live, after all, according to the U.N. stereotype: according to some "universal pattern" as conceived and sanctioned by some self-selected "expert class" in pursuit of high positions of (global) power and authority in a "blessed" institution - even if it means that the entire idea of national (not to mention personal) sovereignty must be crushed under the boot in order that their aims may be achieved?

No wonder dictators and would-be dictators alike loathe us - and are now trying to defeat us: They detest the unique American idea that American diplomats carry and defend before "the council of nations." I bet the U.N. especially hates that, as a challenge and rebuke to its own putative "authority"….

But this is the legacy we Americans historically have been trying, in times of peace, and doubly in times of war (when America is fatally threatened), to hand down to our children and successors. That is what the "American Experiment" (contra the French debacle in a similar attempt a couple hundred years ago) is all about. It must trouble the likes of Taliban, PRC, et al., to no end that Americans continue to resonate to precisely that understanding….)

But, given this most basic of uniquely American understandings, my friend in "the opposition," by arguing that the federal government is so stripped of power and authority by the BoR with respect to persons (be they citizens or non-citizens) that it is prohibited from exercising its constitutional authority, nay, its duty, to prosecute its own delegated powers in wartime, for the sake of the defense of the very people it represents, is a piece of reasoning I just don't get. Some very wise justice of the Supreme Court once said: "The Constitution is not a suicide pact." (Been trying to track down my source here, to no avail so far. Still searching….)

Then another person weighed in, and said that the Supreme Court held that during times of war, belligerents can be "disposed of by the Executive branch with no recourse to the Judicial branch…. The distinction is NOT between 'citizen' and 'non-citizen,' but between 'belligerents' and 'civilians.'" Then he noted that, before the Executive is allowed to do anything on its own authority (i.e., without recourse to the courts), Congress must first declare war.

But exactly when did you expect that Tom Daschle, Harry Reid, Charles Schumer, Hillary Clinton, Barbara Boxer, Dianne Feinstein, Ted Kennedy, John Kerry, Chris Dodd, Evan Bayh, Jon Edwards, not to mention the What's-Her-Name senator from Missouri who got the job because her husband died in a plane crash (vastly aided by simply staggering voter fraud in the process) et al., would agree to "do the right thing for America" so to make such a declaration? (These people think their own sacred political futures depend on not playing along with Dubya. War to them is a mere inconvenience, not a reason to get really exercised. As long as "Plan A" still goes forward full-steam, they don't care about the little "inconveniences" that get in the way -- like full-scale, declared war on American soil with upwards of almost 5,000 civilians dead -- so far.)

A formal congressional declaration of war - that is, congressional acknowledgment of the mere state of facts in which the American people now finds itself and must LIVE through, now and for the foreseeable future -- seems to me to be the very least anyone can reasonably expect, nay, DEMAND, from their elected public officials.

If this crowd doesn't get it, then I think we Americans ought to fire the whole gang, and hire a whole new bunch - and in doing so (hopefully) manage to clarify the real, objective situation that United States now faces against implacable foes, foreign and domestic. Constitutionally speaking. (But don't hold your breath waiting for the answer, kids: These vermin give every indication of determination to stick around for the foreseeable future - and then some… They will be "our masters" YET. [If only in their dreams…].)

I just hope that the people who think they're upholding and defending the Constitution (even a constitution castrated by the radical individualists out there) acquire some "survival skills" sometime soon. And start acting like they really understand what is at stake in this war - a war implacably waged, without remorse, against "non-combatants" -- according to the taxonomy of my "friend in the opposition."

But it's late, and "beddy-bye time" for me right about now. I hope to hear from folks who have something to say on this subject soon. Thus to continue this discussion along lines relevant to all my correspondents, pro and con. (This is, after all, a public discussion, not a "tutorial.") Meanwhile, all my best to all - bb.

One of the last posts on the thread you 'honor' summed it up perfectly:

To: H.Akston

bin Laden has perpetrated an act of war on the United States, even at that, if he is brough to US soil, he will be tried, not summarily shot. He still has the right to due proccess.
As a suspect in the murder of thousands of citizens, he cannot buy a weapon, he has no Second Amendment rights, no suspected felon does.

The posters that have agreed with you, (to your original post), are wrong if their assumption is that the rights detailed in the Constitution, and the protection afforded by the BOR, apply only to citizens. If Willioam F. Buckley makes the same claim, he is wrong as well. He isn't omnipotent you know.

Here's your original rant:

"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."

That's about the most liberal thing I've ever heard. Doesn't he realize that the Bill of Rights and the Constitution clearly identifies who is covered by the words "WE THE PEOPLE OF THE UNITED STATES", and that not everyone on this soil is "OF THE UNITED STATES"? With Rights come responsibilities - does he want to extend American rights to people who don't pay American taxes?? American Privileges without American Responsibilities, MR. BARR? Representation from you without Taxation?

I'm not even sure that Indians are covered by the Bill of Rights, unless it's specifically stated so in some bilateral treaty.

Now, the way I read that is that you do not believe that the Bill of Rights applies to anyone who isn't an American citizen. You have been doing some serious backtracking these last few hundred posts, but it doesn't make you any less wrong, or look any less foolish.

Everything that Bob Barr said was absolutely correct. The Bill of Rights, as it has been pointed out to you to almost a nauseating degree on this thread, cover the government from infringing on the rights of people in general.

"Where in the world did you get the idea that I said America must have a different set of standards for each and every nation?"

Your post #454, where you made the statement that non-citizens on our soil, have whatever rights have been negotiated by treaties with their countries.

Barr isn't wrong, you are.

592 posted on 12/4/01 8:24 PM Pacific by Luis Gonzalez

To use one of my favorite quotations from Blazing Saddles - Gaa-lee Mr. Lamar, You use yer tungue pudyer than a twenty dollar whore!

No offence meant, just keeping things light.

A formal congressional declaration of war
- that is, congressional acknowledgment of the mere state of facts
in which the American people now finds itself and must LIVE through,
now and for the foreseeable future --
seems to me to be the very least anyone can reasonably expect, nay,
DEMAND,from their elected public officials.

The state of the elected representatives is sorely lacking to say the least! What exactly would it take to bring these public servants into servicing their public? A suitcase nuke detonated in yet another American City or National land mark? Perhaps a blood or nerve agent strategically released to actually create massive casualties instead of just test the veracity of the U.S.Postal System? What, you think they havent already thought of and planned to execute such plans?!?

My Commander-in-Chief, the Executive Branch, my fellow brothers in arms, and the (far fewer than Im scared to admit) dedicated patriots still left in this Great Nation are the only glimer of hope this country has right now. If you count yourself included in one of these categories. GOD BLESS YOU.

Delta 21

---your analysis of the fact that the founders both recognized the born with rights that are god granted, not man-granted, and also that we were the first nation to try and assert this into practice are correct. This latest in a series of wars/conflicts/police actions is yet another example of when the practice gets thrown away in favor of the tired and always ending in a disaster formula used in other nations past and present-the formula that the founders thought wouldn't work out in the long run. Well, unless fascism was the goal of this or that government. Maybe fascism isn't the correct word, but statism and authoritarianism are closer.

Most humans actually prefer to be told what to do, to "follow orders". Be it from a king, with the exaltation of the "royal" concept, or in the election of a royal-like ruling class. perhaps royal like in everything except that embarassing name, but it follows all the descriptions of royal, even to generational power wielding dynasties.

The concept of the people "ruling" themselves and hiring employees-not employers to serve as clerks and functionaries has been -once again- abandoned in favor of following a king's dictates.

Here's an example. In clintons first term of office, enough abuses were uncovered and discussed to have shown anyone who really bothered to look even past the most obvious surface level that he was in most classical definitions not only probably a traitor, but also just a "crook", plain brown wrapper crooked, really nothing unusual, just scale and style slightly different from most. During his first tenure, all his orders were followed, from top to bottom, in government, millions and millions followed them unhesitatingly, those aspects of government that he controlled ultimately. Now after the second election when he got re-elected, why is it so many continued to "follow orders" no matter what those orders were? It is completely understandable, and to be human, to see how many wished to see a change back to the better somehow, to wait until after the second election results were finalised, by renunciating his rule, but why was it that actually so few people didn't put country first and resign from their civilian positions, or resign from their commissioned positions? The answer is, most people put temporary personal comfort and security and excused demogaugery over any sense of national patriotism or doing what is right. Talk is cheap, actions actually cost folding money and personal effort and personal convictions that enter into national altrusim. His orders still got followed. Millions acted like he was their royal leader. Millions. Most in fact. Some much smaller numbers quit over principle, over their outrage and unease he instilled-BUT, most stayed in, 'followed orders" of someone and a group of ruling class regimists who were demonstrably by then a collection of "bad people", and inimicable to what this nation was about.. They consciously made a decision that their check was more important than the nation's security, and their fellow americans rights and BORN WITH priveleges.

I applaud and count as fellow thinking patriotic americans those who quit and refused to follow that persons and statist gangs' "orders" during that second term. The others, a vast number of people unfortunately, to me, sorry, no excuses, crooked traitor supporters by their very deeds of silence and aquiesence and 'following orders' up and down and sideways in the criminal cliques ordering around chains of command and control, no matter who they claim they voted for, what they currently expouse, how much they wave the flag, or how much they foment further goose stepping excuses on the internet.

Actions speak louder than words, our bill of rights is a statement of already occured "fact" that can only be taken away by force, fraud, or collusionary distraction, it has no need of interpretation if one can understand the american english used when it was written. It does not need black's-law legalese language translation. It was designed that way on purpose.

The bill of rights in it's entirety and common english language definitions exists in war time, peace time, and in between time. there is no time when it doesn't, no matter past precedent of abuses against it. Robbing a store is wrong, robbing a hundred stores and "establishing a precedent" does not make any further occurence of store robbing 'right". There is no need to suspend sections of it, or to re-interpret it. The founders made so that some provisions of our law may be changed, all but the enumerated born with rights, which are carved in stone, and may NOT EVER be changed by an governmental action, utterance, or elected or appointed or hired on person. there are zero exceptions granted, no matter the current reason, even if it seems somehow appropriate at the time. Any attempt is a defacto immediate occurrence of a traitorus act, it's a support of abusive authoritarianism over our concept of born with soverignty and human dignity, and should be denounced immediately, no matter the published 'reason" for such an attempt occuring.

There are no exceptions allowed, or should be sought by anyone who lays claim to understanding them, for any reason, at any time, and it matters not what excuse is given to even attempt it, let alone to implement or support such a change.

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