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The Bill of Rights Abroad:

The Federal Circuit just held that the Takings Clause generally doesn't apply to takings of foreign property owned by foreign citizens who have no connection to the U.S. In the process, the court of appeals also canvassed the precedents on the broader question, which can also involve the Fourth Amendment, the criminal procedure provisions, and other Bill of Rights clauses.

Much worth reading, and should be pretty readable even to nonlawyers. Thanks to How Appealing for the pointer.

NI:
I've always thought that the argument that the Constitution only protects Americans misses the point since protecting Americans is only half the purpose. The other half is constraining the American government.

If the U.S. government told the Iraqis, "so long as we're occupying, you're all Christians now," it seems to me that ought to be a violation of the First Amendment, even though the only people affected would be Iraqis in Iraq, because the actor is the U.S. government and the purpose of the Bill of Rights is to contrain the U.S. government. Under the line of cases cited by the Federal Circuit, I'm not sure it would be. (I suppose non-Christian Americans might have standing to sue on the grounds that their tax dollars were being used to establish religion, but that's a separate issue.)
5.8.2008 1:11pm
PersonFromPorlock:
NI: Indeed. I'm always a little bemused by the argument that the US government can escape the Constitution, when its very existence depends on that document.
5.8.2008 1:25pm
Germanicus:
It seems to me that the Constitution is designed to define limit what the government can do, and it seems rational to consider those limitations without regard to whether the subject of government action is a citizen, except where citizenship is mentioned or reasonably implied.

The problem I see is with standing requirements. The limitations on the government are meaningless unless there is some recourse when the government oversteps those limits. If Iraqis don't have standing to sue, and no citizen or organization has standing to sue on their behalf, then the limitation is meaningless with regard to non-citizens.

Under a social contract theory, one might argue that the limitations on government action only apply to actions effecting citizens, since citizens are the other party to the social contract. Under that theory, however, there is no relationship between our government and foreigners, who have ceded no power to our government. Governments should only be able to assert themselves over foreign citizens in their own countries to the extent required by the national defense, and as allowed by treaty.
5.8.2008 1:25pm
byomtov (mail):
Leaving Constitutional questions aside, I am disgusted as a US citizen that our government simply took this woman's property and ruined her business with no compensation.
5.8.2008 1:37pm
Sean M:
Will Ilya and Orin have a lengthy debate about this decision?
5.8.2008 1:38pm
Lior:
Certainly the Constitution should constrain the US government, but in this case the taking was done by a foreign government. This situation is akin to a common one in the US: private property is taken at the instigation of a private developer. In that case the "takings clause" requires the government to pay the compensation, not the private developer. The US embassy asking the Uzbek government to destroy the cafeteria building should not make the US government legally liable to compensate the owner.

I agree that buying the property would have been the right move and that taking advantage of the abusiveness of a foreign government is not right -- but it's not unconstitutional.
5.8.2008 1:39pm
Lior:
byomtov: the US didn't "take" her property any more than the private developers in Kelo "took" the property. The US may have instigated the taking, but that's not the same.
5.8.2008 1:41pm
FWB (mail):
The Constitution for the United States of America is applicable only to the United States of America BUT the Rights enumerated within its clauses are general Rights of all humans by virtue of birth (endowed by their Creator). Whether a particular "government" recognizes these Rights is meaningless relative to what those Rights are, except that the government that does not recognize these Rights will do as it pleases to those subjected to its authority.
5.8.2008 1:44pm
Anderson (mail):
Well, I see everyone is ahead of me on the quaint notion that the Constitution defines and limits a government, not a geographical entity.

I suppose the error creeps in because geographical sovereignty is so readily confused with government, and because for so long, the U.S. government did relatively little outside its own borders.
5.8.2008 1:46pm
OrinKerr:
Will Ilya and Orin have a lengthy debate about this decision?

I hope not, although I thought the decision was correct in light of Supreme Court precedent (and that such precedent seems within the range of plausible approaches the Court could take),
5.8.2008 1:48pm
byomtov (mail):
Lior,

Prior to the events that are the subject of her claim, she was the sole owner of a cafeteria located on property next to the U.S. Embassy in Tashkent. The property on which her cafeteria was located was owned by the Republic of Uzbekistan, but Ms. Atamirzayeva owned the buildings on the property.

Ms. Atamirzayeva alleges that in December 1999 officials at the U.S. Embassy made a verbal demand to local authorities in Tashkent that they destroy Ms. Atamirzayeva’s cafeteria in order to increase the security of the U.S. Embassy. The following day, local authorities forcibly expelled Ms. Atamirzayeva from her cafeteria, then destroyed it while officials from the U.S. Embassy oversaw the demolition.


Are you seriously suggesting that the US has no moral obligation to compensate Atamirzayeva? Call it a taking, or not. The woman's property was destroyed at the behest of the US.
5.8.2008 1:51pm
billb:
Lior: If the cafeteria had been next to the US Embassy in Britain rather than Uzbekistan, I'm sure things would have gone down differently.

The fact that we knew that we could probably get the Uzbek government to destroy the property of one of its citizens and proceeded to ask them to do so is embarrassing. Think of the good will we could have fostered with the Uzbek people by buying out the cafeteria at a reasonable price. We probably could have done so for less than the cost of the lawsuits and appeals!
5.8.2008 1:51pm
NI:

The US didn't "take" her property any more than the private developers in Kelo "took" the property. The US may have instigated the taking, but that's not the same.


Lior, that's a distinction without a difference. If I'm stalking you, and you get a restraining order against me, and I then hire someone to stalk you on my behalf, the fact that I didn't actually do it myself is of little consequence.

Completely agree with byomtov, by the way, that a government with one shred of decency would have compensated this woman without making her sue. What kind of moral midgets do we have running things in Washington anyway. (Don't tell me, I don't want to know, it was a rhetorical question.)
5.8.2008 1:53pm
Oren:
How much could a freaking cafeteria in Uzbekistan cost? It is almost certain that the whole legal cluster**** costs hundreds of times more than the actual cafeteria.

At some point, you'd think the US government would attempt to save itself money by common sense but hey, it's not their money, right?
5.8.2008 2:04pm
Oren:
Also, questions of decency are funny. I expect the US gov't to do the most economical thing -- in this case, pay the lady off.
5.8.2008 2:05pm
Crunchy Frog:
I'm confused - the buildings belonged to her, but the property they sat on belonged to the Uzbek government? How'd that happen?
5.8.2008 2:05pm
PatHMV (mail) (www):
Crunchy Frog, it's not unusual in the U.S. for the buildings on a piece of land to belong to one person while the land itself belongs to another. I suspect that in Uzbekistan, however, that's a holdover from their days as part of the USSR.

To everybody else, you're all assuming a lot of facts not in evidence. We have only the woman's allegations and characterization of what happened. Perhaps we did offer to buy the place, and she refused to sell. Perhaps she had turned the place into a terrorists' haven right next door to us. Perhaps we asked (rather than "demanded") the Uzbek government whether something could be done to improve security, given the risks of the open-to-the-public restaurant right next door, and they got over-zealous, something which we have no control over. Heck, for all we know, our treaty with the Uzbeks required them to keep other buildings at least 100 feet from our embassy, and they were in breach of the treaty.

As for the folks saying "why didn't they just pay her even if not legally required to," when a government official spends YOUR tax dollars in a manner not authorized or required by law, most folks generally take that as at least presumptive evidence of malfeasance at best, and corruption at worst. How many of you have complained mightily about government waste in doling out dollars to the victims of Katrina and other hurricanes? Or the unaccounted for funds spent in Iraq reconstruction projects?
5.8.2008 2:35pm
D.A.:
Anderson,
I'm usually right with you, but I've got to go "abroad" here. It's true the document constrains a government, not a physical entity, but a government and its actions are tied to territory. That's why there's such a thing as "extraterritorial waters" over which a distinct government has no powers. And that's why the Constitution doesn't constrain our government outside its territory; that's the province of treaties and international relations.
5.8.2008 2:37pm
PLR:
Lior, that's a distinction without a difference. If I'm stalking you, and you get a restraining order against me, and I then hire someone to stalk you on my behalf, the fact that I didn't actually do it myself is of little consequence.

Stalkers hire subcontractors?

Lior is right, Uzbekistan took her property. If her cafteria had been within the U.S. embassy it would have been a more interesting case.
I'm confused - the buildings belonged to her, but the property they sat on belonged to the Uzbek government? How'd that happen?

Think of it like a ground lease.
5.8.2008 2:37pm
Lior:
I thought it was clear from my responses that the US was morally obligated to compensate the woman. In fact, what the US should have done is simply buy the cafeteria. Thuggery is not moral. However, acts of Thuggery committed in Uzbekistan by the Uzbek government should be governed by Uzbek laws.

What I was addressing is the question for the court, which is not whether the US was morally obligated to compensate the woman. The question is whether the US is legally obligated to compensate the woman under the takings clause.

Here, the answer should be a pretty clear no. Unfortunately the court complicates reasoning too much. The Constitution only serves to limit the actions of the US government (and, to a certain extent, the states). In particular, the court should have simply said that what happened here is not a "taking" for 5th amendment purposes since the US government did not directly take anything. Does the 4th amendment protect foreigners from their governments when the US gave the intelligence leading to their arrest?
5.8.2008 2:58pm
Anderson (mail):
It's true the document constrains a government, not a physical entity, but a government and its actions are tied to territory.

Not so much as they used to be, I'm thinking, but it's certainly an arguable point; the courts sometimes prefer that the line be bright rather than right.

Suppose that U.S. employees had beaten the woman up, or detained her for a week, and she figured that she'd get nowhere in her country's own courts -- would she have a cause of action here?

On similar lines, the Federal Circuit's holding is interesting for what it suggests about victims of extraordinary rendition who seek to sue in U.S. courts. Shipping someone to Egypt to be tortured is a bit like having the local gov't tear down a building for us.
5.8.2008 2:59pm
Dilan Esper (mail) (www):
The extraterritorial application of the Constitution depends on the provision.

Structural provisions apply everywhere. E.g., the clause giving Congress the power to make rules for captures on land and water is applicable to captures within and outside US territory.

Some provisions explicitly apply abroad. E.g., the commerce clause, granting Congress the power to regulate commerce with foreign nations.

Some provisions, by their very nature, cannot apply abroad. Verdugo-Urquidez is a good example of this. There's no way to apply the Fourth Amendment abroad, because, for one thing, the warrant requirement would be impossible to apply where there are not US courts.

And that leaves many provisions where a historical or policy judgment has to be made. The one that causes the most trouble is the Due Process clause of the Fifth Amendment. The Court has made some noises in Verdugo and in Eisentrager that it does not apply, but on the other hand, the Balzac case seems to imply that at least fundamental rights do apply outside the US. And lower courts, in cases like Xiao v. Reno and US v. Toscanino, have held that it does apply at least to outrageous acts of the government.
5.8.2008 3:09pm
Brian Day (mail):
Ms. Atamirzayeva alleges that in December 1999 officials at the U.S. Embassy made a verbal demand to local authorities in Tashkent that they destroy Ms. Atamirzayeva’s cafeteria in order to increase the security of the U.S. Embassy.

Was there any evidence to back up the claim of a "verbal demand"? The article did not say.

Otherwise, PatHMV is correct. There could have been a lot of behind the scenes action that we are unaware.
5.8.2008 3:09pm
Lior:
Anderson has made the point better than I tried to: the court's reasoning was unfortunately based on the idea that the constitution does not reach abroad, not on the fact that this was not a taking. This is not dissimilar from USSC rulings that constitutional provisions that ostensibly apply to everyone only protect citizens.

So let's look at the following question: say that instead of asking the local government for help, the ambassador would have sent the marines guarding the embassy to evict the woman. Should she then sue in an Uzbek court, in a US court, in both?
5.8.2008 3:16pm
Lior:
PatHMV: buying a large enough tract of land for a US embassy (ensuring enough clearance between embassy buildings and adjacent properties) seems to me a proper use of taxpayer dollars.

Disclosure: I am a taxpayer but not a citizen.
5.8.2008 3:19pm
PLR:
Anderson has made the point better than I tried to: the court's reasoning was unfortunately based on the idea that the constitution does not reach abroad, not on the fact that this was not a taking.

But that's how the process goes. If the plaintiff does not have standing as a threshold matter, the court never has to adjudicate whether or not there was actually a taking by the U.S. government.

On your hypothetical, (a) yes she should sue in Uzbeki court, and (b) vis a vis the U.S. it sounds more like a claim under an expropriation treaty than a Fifth Amendment claim (but that's way outside the scope of my meager knowledge).
5.8.2008 3:25pm
byomtov (mail):
PatHMV,

You seem to be the one assuming facts not in evidence. Sure a lot of things could have happened, but where is the evidence, or even the claim, that they did?

As far as saving the money, as some above have suggested, the costs of the legal work probably exceeded the cost of buying the cafeteria. In any case, not simply grabbing the property surely can be justified as a sound public relations expense, if nothing else.

Besides, your implicit assumption that the interests of the US citizenry were best served by not paying compensation seems wrong, or at least questionable, to me. Suppose the question of whether to pay compensation had been put to a national referendum. How do you think it would turn out? How would you vote?
5.8.2008 3:44pm
Lior:
@PLR:
But that's how the process goes. If the plaintiff does not have standing as a threshold matter, the court never has to adjudicate whether or not there was actually a taking by the U.S. government.


So you are claiming that even if it was a taking requiring compensation under the 5th amendment, her being a foreigner would preclude relief?
5.8.2008 4:00pm
PLR:
So you are claiming that even if it was a taking requiring compensation under the 5th amendment, her being a foreigner would preclude relief?

I'm just saying that the federal courts adjudicate standing issues before factual issues.
5.8.2008 4:05pm
Bill Poser (mail) (www):
Those who suggest that the lady might have pursued her claim in the Uzbek courts should be aware that Uzbekistan is a dictatorship that engages in such practices as interrogating dissidents by immersing them in boiling water. Even the US government says so: check out the State Department's human rights report on Uzbekistan for 2007.

One thing that does seem to be missing from this case is evidence that the US embassy colluded in taking the property without compensation. It is at least possible on the information that we have that the US requested the removal of the cafeteria in the expectation that she would be compensated, in which case the fault would like only with the Uzbek government.
5.8.2008 4:10pm
byomtov (mail):
It is at least possible on the information that we have that the US requested the removal of the cafeteria in the expectation that she would be compensated, in which case the fault would like only with the Uzbek government.

Once she filed suit against the US, wouldn't somebody find out whether she had been compensated?
5.8.2008 4:29pm
Justin (mail):
The opinion strikes me as overbroad. There seemed to be an easier way to decide this case - that

1) the political question doctrine along with the takings clause prevents the court from determining that the US was responsible for the actions of the local authorities (ie, the Takings Clause does not apply extraterritorially to takings performed by third parties - particularly third-party foreign governments, regardless of accusations of collusion or control)

2) As the land is owned by Uzbekistan, presumably the "local authorities" were acts of the Uzbek government itself, and the Court of Claims lacks the competency to determine whether the taking was illegal. Nor does the taking violate international law (an exception to act of state), as Ms. Atamirayeva is an Uzbek citizen.

This decision may have more important consequenes when the United States *itself* is the actor doing the taking. Maybe the decision is the same, but it would have been far preferable for the Court to wait for those facts (and to see the consequences of such a potential ruling), before deciding the issue.
5.8.2008 4:32pm
Adam J:
PatHMV - To everybody else, you're all assuming a lot of facts not in evidence. We have only the woman's allegations and characterization of what happened. Um... that's what you are supposed to do on a MSJ, put the facts in the light most favorable to the non-moving party. It's quite irrelevant whether the allegations are true, since the case wasn't decided on these grounds. If she can't prove the US didn't ask this, she's obviously not going to carry her burden of proof and win the case- why should we allow the US to instead win on what is basically a legal loophole that it could further exploit?

Do you think the US should be free to take property in other countries? That's the result of this case and it hardly seems moral. I don't see why the law shouldn't track morality here, why should the US rely on legal loopholes of dictatorships to take property in other countries- we're showing ourselves to be no better than the dictatorship by doing so.
5.8.2008 5:08pm
Bill Poser (mail) (www):

Once she filed suit against the US, wouldn't somebody find out whether she had been compensated?

Maybe, maybe not, but I don't see how that bears on whether the US colluded with the Uzbek government in the first place. It seems to me that several scenarios are possible:

(a) the US asked the Uzbeks to get rid of the cafeteria, thinking, possibly naively, that the Uzbeks would follow something like US condemnation procedures and compensate her reasonably. The Uzbek's, however, deliberately tore down her cafeteria without compensating her.

(b) the US asked the Uzbeks to get rid of the cafeteria, knowing full well that they would simply tear the place down without compensation. In this case, the US and the Uzbek government are jointly responsible (morally though perhaps not legally).

In the former case, if the US subsequently learned that the woman had not been compensated, it would not really be morally responsible but ought either to have raised the issue with the Uzbek government or compensated the woman itself, which would probably have cost little and been a nice gesture.
5.8.2008 7:31pm
Student:
Wait a minute: so if the majority of you are right, whenever anything happens anywhere in the world that can be remotely related to a request by the United States Government the person on the receiving end ought to be able to bring suit in American courts under American law?

What if the lady, instead of owning a cafe, was a mugger who specializes makes her living robbing Americans on their way home from the embassy. Let's further assume the host nation took whatever evidence the embassy handed them and summarily threw her into prison without benefit of a trial, no counsel, and of course no trial by a jury of her peers. Would you all "we have a moral obligation"ers hold that she can sue in federal court for a violation of her constitutional rights?
5.8.2008 7:39pm
byomtov (mail):
Student,

As one of the "moral obligation" advocates, may I point out that in my very first comment I specifically said, "leaving Constitutional questions aside?" There is a difference between a moral obligation and a legal one. I ahve expressed no opinion on the legal aspects. (Though I note that the Fifth Amendment requirement for just compensation does not specify any exceptions.)

Further, this case does not involve some attenuated connection to a request by the US government. It involves a direct request.

Bill Poser,

I'm not sure I buy your distinction, though I'm glad you think we should pay regardless. Once you know you've done harm, even if inadvertently, do you have no obligation to the harmed individual?
5.8.2008 8:05pm
Student:
So the US government directly requests that the host government arrest the mugger. How does that make it any different?
5.8.2008 8:43pm
ReaderY:
Roe v. Wade and the line of cases running through Johnson v. Eisentrager and U.S. v. Verdugo-Urquidez are similar in that they held that the term "person" lacks application in contents. The Roe v. Wade line held that it lacked "prenatal application" while the Eisentrager/Verdugo-Urquidez line inferred it lacked "extraterritorial application."

What distinguished Roe from previous case was a leap that because the term person lacks application in a context and the Constitution mandates no rights or protection, one can infer that there no substantial protective state interest in that application. This inference was explicit in Roe, which very clearly held that because the term "person" lacks prenatal application, it necessarily followed that Texas' claim of compelling interest in the prentatal context had to fall to the ground.

But as the Eisentrager/Verdugo-Urqidez cases make clear, lack of application of the term "person" in a context in no way implies that the Constitution endorses treating a human being in that context as nothing more than so many lumps of meat. Our law has never made such an inference in any other of context in which the term "person" doesn't apply. The leap of logic the Roe Court made is simply bogus, with no basis in our law. We don't consider the principles animating our decision to participate in the Geneva Conventions to be in any way antiquated, or in any tension with constitutional values, just because our participation in those conventions is voluntary and our constitution doesn't require it. The fact that the term "person" does not apply in a context in no way diminishes a state's interest in sometimes deciding to voluntarily apply priniciples it considers to be based on morality and justice, or its decision to sometimes let these principles control in ways that can sometimes limit Americans' personal choices.
5.8.2008 10:52pm
byomtov (mail):
Student,

Again, the moral obligation is not to let her sue but to compensate her. It has nothing to do with allowing access to US courts. It has to do with making a lawsuit unnecessary.

So there's no issue of a moral obligation to extend American constitutional rights to the mugger. Besides, there are some differences between

a) causing an innocent person's property to be destroyed

and

b) causing a criminal to be arrested

These are left as an exercise for the reader.
5.9.2008 11:11am
Duffy Pratt (mail):
Also Student:

This was a judgment on the pleadings. The allegations in the complaint have to be read in the light most favorable to the plaintiff. One also has to draw every reasonable inference in the plaintiff's favor.

If this case had continued, the government might have contested whether it had actually taken anything. In this context, however, the court had to assume that a taking had occurred.

The really bad thing about this opinion is that it depends entirely on badly distinguishing the one binding precedent. The connection to America in that case was very tenuous.
5.9.2008 12:19pm
MDJD2B (mail):
Suppose the President of the United States visited Uzbekistan. Embassy security apprised the Uzbekistan government of the existence of a possibly violent group called Uzbekistan Radicals and Jihadists United (URAJU; pronounce it :) ). The embassy, hearing of a possible plot to kill the US president, asks the local government to try to keep members of this group away from the route of the motorcade from the airport to the hotel where the president is staying. The Uzbekistan government uses this as a pretext to arrest all known members of this group and boil them in a vast kettle of water. (As someone has noted in this thread, President Karimov likes to boil his opponents.) The US government becomes aware of this after the president has arrived, and after the URAJU dissidents have already been boiled.

Do the survivors of the URAJU dissedents have a claim against the US government in a US court? A moral claim?

I don't know the precedent, but the case under discussion would seem to be dispositive. As for a moral claim, I would think not, unless the US government were complicit. Benefiting from the misdeeds of the others that one did not intend to cause does not create a moral obligation.
5.9.2008 2:55pm
Justin (mail):
I think a lot of these questions going back and forth are difficult to answer without dealing with political question doctrine (vis-a-vis the US's involvement) and act of state doctrine (vis-a-vis the foreign country).

And some of the hypotheticals are fairly absurd - I don't think one needs to agree with Bryson's opinion to believe that breach of duty and causation are basic principles of law. The hypotheticals where the US would not be liable regardless of the decision - or even regardless of the political question doctrine - aren't much in the way of hypotheticals at the end of the day.
5.9.2008 4:27pm
byomtov (mail):
Benefiting from the misdeeds of the others that one did not intend to cause does not create a moral obligation.

But in the actual case the US did intend to cause the destruction of the cafeteria for its benefit. What was the misdeed that the US did not intend to cause?

Was it the failure of the Uzbek government to pay compensation? It would not have been hard to ask whether it would be paid. If we asked, then we knew we were causing damage. If we didn't ask, the best analogy is to an accident. We caused damage through negligence, and that creates the obligation.

There's another interesting thing here. All the legal arguments about how the US doesn't have to pay are based, obviously, on cases from US courts. Suppose a foreign country caused you some harm, and that country's courts rule that it has no liability. Would you feel fairly treated?
5.9.2008 5:20pm
MDJD2B (mail):

Suppose a foreign country caused you some harm, and that country's courts rule that it has no liability. Would you feel fairly treated?

No. Does this mean that the courts another country have standing to offer you relief? Is the defendant fairly treated when plaintiffs hunt through the world to find countries with plaintiff-friendly laws so they can hale defendants into court.

That, of course, is not what hapened here. The plaintiff went to defendant's own country.

The court,in deciding standing, assumed the facts to be those most favorable to the plaintiff. There is no evidence here as to what Uzbekistan actually did to the plaintiff. For all we know, she got fair value fro her property. For all we know, she was boiled in a kettle (but just until rare; she hs survived to sue).
5.9.2008 7:28pm
byomtov (mail):
MDJD2B,

I don't understand your last comment. The court's decision on standing might be right, for all I know. I'm just pointing out that saying "After careful reflection, we have decided that you can't sue us," sounds a little funny.

There are obviously things we don't know. But why assume she got fair value when there is no indication she got any value, and she felt compelled to sue?

If she did get fair value, then fine, but if not we ought to give it to her. Saying "sue me" doesn't strike me as the right thing to do.
5.9.2008 8:50pm
PersonFromPorlock:

I'm just pointing out that saying "After careful reflection, we have decided that you can't sue us," sounds a little funny.

It's good to be the King!

(Sorry, couldn't resist.)
5.10.2008 9:09am
ReaderY:
a. All "persons" have a constitutional right not to be deprived of life, liberty, or property.

b. Only "persons" have a constitutional right not to be deprived of life, liberty, or property.

c. The plaintiff in this case has no constitutional right not to be deprived of life, liberty, or property.

What inference can you draw about this plaintiff?
5.11.2008 12:21am
ReaderY:
From Johnson v. Eisentrager (term person in the Bill of Rights lacks "extraterritorial application")


If the Fifth Amendment confers it rights on all the world except Americans engaged in defending it, the same must be true of the companion civil rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that, during military occupation, irreconcilable enemy elements, guerrilla fighters, and "were-wolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.

Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. 182 U. S. Bidwell, 182 U.S.

None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it.

We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.



From Roe v. Wade (term person in the Bill of Rights lacks "prenatal application")


The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.



It was a huge mistake for Texas to have hinged its case on a claim that a fetus is protected by the Constitution it didn't need to hinge its case on such an all-or-nothing approach. It was a huge mistake to conclude that if a state is not required to treat someone not protected Instead, it should have pointed out that there are actually a wide variety of contexts in which U.S. law has historically extended significant protections to human beings not protected by the Constitution despite a complete lack of any obligation to do so. Not only does U.S. law routinely provide protection to foreigners in commercial transactions sometimes provide compensation to bystanders harmed by U.S. military and other governmental activities, it provides protection, under certain circumstances, even to enemy soldiers sworn to kill us.

It simply cannot be inferred that, merely because a textual analysis of the Constitution concludes that a class is not provided constitutional protection, the state lacks any strong interest in ensuring that its citizens behave with fairness and decency towards those outside its own scope.

Never in our history have our courts ever held that the constitutional rights of citizens limit the ability of our law to provide protections to those who are extra to constitutional coverage. Indeed any application of Roe would have absurd results.

Congress not that long ago prohibited U.S. citizens from have sex with minors abroad. Can such a law have any foundation under Roe? For if citizens' interest in sexual liberty is truly so important that it permits terminating non-persons, how can one possibly argue that the state has any business impeding that interest in the far lesser matter of simply using them as dildoes?
5.11.2008 11:07am