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Constitutional Rights of Non-Citizens:

I've heard many people suggest that the Bill of Rights protects only citizens, and not legally admitted aliens. Some have argued that surely the Framers would not have understood the Bill of Rights as protecting noncitizens.

It turns out, though, that at least one pretty significant Framer -- that would be James Madison -- took the opposite view. Here's Madison, from his Report on the Virginia Resolutions, which criticized the Alien and Sedition Acts of 1798:

Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.

To this reasoning, also, it might be answered, that although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens, without regard to that particular consideration.

But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.

If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.

The Supreme Court has endorsed Madison's view at least since Wong Wing v. U.S. (1896) as to the criminal procedure provisions, and in Yick Wo v. Hopkins (1886) (also unanimously) as to the Equal Protection Clause racial equality principle. Aliens might be deportable for their speech (see here for more on that question), but they can't be otherwise punished for it, nor can they be criminally prosecuted in the civil justice system without the normal constitutional protections. (The question of when military justice may be applied to them is a separate and complicated issue, and one that may potentially relate to citizens as well as aliens.)

Now I'm not a historian of the matter, and it may well be that the matter was unclear. Certainly Madison was arguing against people who took the contrary view; perhaps they were in the solid majority on this. But at the very least one shouldn't just casually assume that the Bill of Rights must of course apply only to citizens, when the principal drafter of the Bill of Rights took the opposite view.

Sid Finkel (mail):
Great Piece, Thank You

Many people, conservatives in particular argue that the rights of man are inalienable, and granted by the Creator, not by government. Government's role is to ensure that these rights are advanced and protected, both from government and from other groups. Such a position surely guarantees the rights of the Constitution to all, regardless of citizenship.
2.18.2009 8:43pm
Bill Poser (mail) (www):
It seems to me that Madison's view is the one to be expected of the Framers given the widely held view among them that fundamental rights are natural rights. Natural rights do not arise from a social contract but from deeper universal principles. It would be perverse for anyone holding this view to claim that natural rights guaranteed by the Constitution applied only to citizens.
2.18.2009 8:43pm
Ben Abbott (mail) (www):
Sid, I agree that many conservatives argue that rights are inalienable ... and yet many more conservatives support Gitmo and the use of torture against suspected bad guys.

Ideology is a strange thing.
2.18.2009 8:48pm
Jon Roland (mail) (www):
The framers took care to make it clear that rights recognized in the Constitution were of persons, not citizens, and the legal claims pertaining to citizens, arising from the Constitution of government, tends to be labeled "privileges".

As I discuss in Social Contract and Constitutional Republics, the "rights" recognized in the U.S. Constitution form a hierarchy, deriving from four "constitutions":

1. The constitution of nature -- comprised of all those principles called the laws of nature, including the ways living beings, by their nature, tend to behave, usually as a survival strategy for their genes;
2. The constitution of society -- comprised of the natural rules according to which social groups tend to make decisions, before they establish formal structures of government. These include such principles as decision by conventions called by public notice and conducted according to customary rules of parliamentary procedure, perhaps combined with public referendum;
3. The constitution of the state -- the society in exclusive possession of a territory, which defines things like fair representation based on location.
4. The constitution of government -- probably written, as a fundamental law adopted as a legislative act under the constitution of the state.

Each of these constitutions is subject to the ones before it. So a statute is unconstitutional if it violates any of the above constitutions, of government, state, society, or nature. A provision of a written constitution of government is unconstitutional if if violates the natural, social, or state constitutions, and a practice under the social or state constitution is unconstitutional if it violates the natural constitution.

Different rights originate from different levels of constitution, as discussed above. Some of the main ones are:

Nature
Life
Limb (right not be be physically injured or tortured, or have one's health or comfort threatened)
Liberty
Acquisition, retention, and use of means to secure above rights (part of property right)
Right not to be required to do the impossible or scientifically irrational
Society
Property equity (right to reclaim property to which one has title, or the value thereof, beyond mere possession)
Due process (includes due notice and fair hearing, both substantive and procedural, and all rights associated with juries)
Common law trust rights
Public decision by convention called by public notice and conducted by established rules of procedure
State
Denizenship (right to remain on or return to one's domicile)
Fair representation of different parts of the territory
Government
Citizenship (privilege to vote and hold office, access to voting and fair counts)
Presumption of nonauthority
Means to remove misbehaving officials or suspend their actions, such as quo warranto and other prerogative writs
Getting reports on the activities and expenditures of officials
Compensation for taking of property (part of property right)

Thus, the property right is actually a bundle of rights, part of which are natural, and part social, in origin. It can also be governmental in origin, as with things like intellectual property, that is established by statute.

Distinction between rights, privileges, and immunities

The U.S. Constitution uses the term "right", but as Madison explained in some of his later writings, the natural, social, and state rights, as broken out above, are rights against the actions of government, for which the term "immunity" is more accurate. Under this understanding, every immunity is a restriction on the delegated powers of government, and every delegated power a restriction on immunities. Together, they partition the space of public action, with immunities and powers being complements of each other. The rights created under the Constitution are then more accurately referred to as "privileges". All of these are public rights, to distinguished from the private rights that arise from things like contracts. The use of the phrase "privileges and immunities", used in the 14th Amendment, is therefore to be understood as a more precise way to express the legal concepts involved.
2.18.2009 8:50pm
ShelbyC:
Huh. I never thought it made much difference whether incorporation happened throught the due process clause or the privlidges and immunities clause. Now I do.
2.18.2009 9:13pm
Fidelity (mail) (www):
What Would Jefferson Do?

"An equal application of law to every condition of man is fundamental." --Thomas Jefferson to George Hay

I wonder what David Post might be able to add to Jefferson's view of such things.
2.18.2009 9:16pm
Bart (mail):
Madison is referring to civilian aliens residing in the United States, not wartime foreign enemies located overseas or who may have successfully invaded the United States like Marri.
2.18.2009 9:21pm
jvarisco (mail) (www):
I think the distinction here is the legally admitted part.

Just as convicts can lose certain rights (e.g. voting), those who enter illegally forfeit what rights they would be afforded had they entered otherwise.
2.18.2009 9:23pm
A. Zarkov (mail):
I think most people would agree that if the Mexican army invaded the US, we have no obligation to provide them with due process of the sort afforded to civilians. We could shoot them on sight and detain them in POW camps. Now suppose these soldiers take off their uniforms. Do they now get magically transformed into "persons." Suppose some members of the invading army bring their wives who then give birth on American soil. Are these children then citizens?
2.18.2009 9:51pm
Jon Roland (mail) (www):
jvarisco:

Just as convicts can lose certain rights (e.g. voting), those who enter illegally forfeit what rights they would be afforded had they entered otherwise.

Imprecise. It is incorrect to say that convicts "lose" rights. Conviction authorizes the bench, in its sentencing order, to disable the exercise of certain rights, within the disablements sought by the prosecution. It is that disablement that then permits the bench to impose the penalties. Conviction, disablement, and penalization are three distinct phases that should be separately expressed.

Illegal entry into a country is an offense against the law of nations.
2.18.2009 9:51pm
ShelbyC:

Just as convicts can lose certain rights (e.g. voting), those who enter illegally forfeit what rights they would be afforded had they entered otherwise.



Voting is more of a Privileges. The bill of rights was designed to protect fundamental human rights, like freedom of religion, the right to due process, etc. Of course, if someone is convicted of illegal entry they can lose rights.

But imagine the paradox of illegal entrants being deprived of due process. Folks can just be designated illegal entrants and deprived of their rights, without the right to challenge that determination.
2.18.2009 9:54pm
zuch (mail) (www):
ShelbyC:
But imagine the paradox of illegal entrants being deprived of due process. Folks can just be designated illegal entrants and deprived of their rights, without the right to challenge that determination.
That's a feature, not a bug. ;-)

Cheers,
2.18.2009 10:01pm
Ricardo (mail):
I think most people would agree that if the Mexican army invaded the US, we have no obligation to provide them with due process of the sort afforded to civilians. We could shoot them on sight and detain them in POW camps. Now suppose these soldiers take off their uniforms. Do they now get magically transformed into "persons."

If the U.S. is under invasion, Congress can suspend the writ of habeas corpus so that anyone anywhere in the U.S. can be jailed for any reason without due process for as long as the suspension is in effect. When habeas corpus is in effect, the presumption is that any Mexican not wearing a uniform is a civilian. If there was a process in place to rebut that presumption, I'm sure there wouldn't be any constitutional problem with detaining them as POWs and/or prosecuting them for violating the laws of war.

The difficulty of doing this in practice is one of the reasons why the Constitution allows for suspension of the writ of habeas corpus.

Suppose some members of the invading army bring their wives who then give birth on American soil. Are these children then citizens?

When has an invading army (not an occupying army but one in the process of invading and pacifying foreign territory) ever allowed soldiers to bring their wives with them?
2.18.2009 10:03pm
Cornellian (mail):
If the Framers intended that the Constitution not apply to non-citizens, the text does a remarkably good job of concealing that intent.
2.18.2009 10:04pm
ShelbyC:
And how 'bout folks who go boating into international waters and don't sign in with the CG? Or wander over the line while hiking? Or even duck under the barbed wire 'cause a picture of yourself standing next to a border monument with barbed wire across seemed really cool?

Do they lose their rights?
2.18.2009 10:14pm
cognitis:
Roland:

Your cited article and section from your link enumerates Congressional powers but does not pertain to ius gentium Romans observed "laws" common to animals as ius naturale, laws special to one civitas as ius civile, and laws common to nations as ius gentium; follows is pertinent extract from Institutiones:
2. Ius autem civile vel gentium ita dividitur: omnes populi qui legibus et moribus reguntur partim suo proprio, partim communi omnium hominum iure utuntur: nam quod quisque populus ipse sibi ius constituit, id ipsius proprium civitatis est vocaturque ius civile, quasi ius proprium ipsius civitatis: quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur. et populus itaque Romanus partim suo proprio, partim communi omnium hominum iure utitur. quae singula qualia sunt, suis locis proponemos.
Indisputably many nations at USCON's creation and many nations now do not "equally observe" all articles and sections, so USCON could not provide an example of ius gentium
2.18.2009 10:23pm
Anon21:
jvarisco:
I think the distinction here is the legally admitted part.

Just as convicts can lose certain rights (e.g. voting), those who enter illegally forfeit what rights they would be afforded had they entered otherwise.

Certain rights, yes. But it is generally acknowledged that if an illegal alien is tried for a crime, he or she is entitled to all of the procedural protections that the Constitution prescribes for criminal trials. This is separate from deportation, which is an administrative matter with an entirely different status in law. The point is that no person in the United States can be tried for a criminal offense without being protected against self-incrimination, being represented by counsel if they so desire, being allowed to demand a jury trial, etc.

As to freedom of speech and the like, it's largely moot. I think it's generally understood that an illegal alien is no more subject to criminal or civil liability on the basis of speech which falls within the First Amendment's protection than are citizens or legal aliens; however, since illegal aliens are always subject to deportation, if their public (constitutionally protected) speech brings them to the attention of authorities, those authorities are then free to deport them.

Illegal aliens have no right to remain in the United States, but so long as they are here they gain the protection of certain provisions of the Constitution which are as much categorical prohibitions on certain types of government action as rights inhering in individuals.
2.18.2009 10:35pm
Sarcastro (www):
They thing about illegals having no rights is that it means you get to assume they're illegals without due process! It's a pretty keen system.
2.18.2009 10:43pm
Sagar:
Until someone is proven to be an illegal alien, the presumption is they are legally here - so Govt has to prove that they are illegal aliens, at which point they should lose certain rights and privileges (including welfare a.k.a tax credits)

Folks kvetching about "torture" - please chill.
Illegal aliens are not tortured; just taken advantage by some employers and many crooks including the pols.
2.18.2009 10:51pm
Clayton E. Cramer (mail) (www):
If you look at state constitutions of the period, they often distinguish citizens from people. Compare the 1776 Pennsylvania Constitution's guarantee "That the people have a right to bear arms for the defence of themselves and the state" with the 1790 Pennsylvania Constitution's narrower guarantee: "That the right of citizens to bear arms, in defence of themselves and the State, shall not be questioned." What's the difference? By 1790, Pennsylvania had a huge free black population, and I suspect that the change in wording was to provide a basis for disarming them.

A citizen is a more restricted class--those who wield political power. If the Bill of Rights says "right of the people" instead of "right of the citizens" it is probably not an accident.
2.18.2009 10:59pm
Clayton E. Cramer (mail) (www):

When has an invading army (not an occupying army but one in the process of invading and pacifying foreign territory) ever allowed soldiers to bring their wives with them?
American Revolution, for one. Officers of high rank often brought their wives along.
2.18.2009 11:01pm
Desiderius:
Zark,

"Now suppose these soldiers take off their uniforms. Do they now get magically transformed into "persons." Suppose some members of the invading army bring their wives who then give birth on American soil. Are these children then citizens?"

Yes and yes. That's how I became an American. How did you?
2.18.2009 11:11pm
Waldo (mail):
While IANAL, the Constitution seems to distinguish between rights held by the people and those held by persons. The First (right to peaceably assemble), Second, Fourth, Ninth, Tenth, and Seventeenth Amendments refer to the people. The Fourth, Fifth and Fourteenth Amendments refer to persons. The other Amendments are neutral on the terminology, or use the term citizens. Only the Twenty-Second Amendment uses the term Person in a way that excludes non-citizens.

Since Article 1, Section 2 specifies that Representatives are chosen by the People of the several States, but also specifies that apportionment is determined by the number of Persons among the several States (including the three-fifths rule), it would seem that the term People refers to citizens, and Persons refers to both citizens and noncitizens.

Logically, the rights accorded to the people should be reserved for citizens and those accorded to persons (including rights not specified such as Eighth Amendment rights) should be accorded to all. That doesn't seem inconsistent with Madison's arguments or with Supreme Court decisions on criminal procedure or equal protection.

If there have been decisions that recognized that distinction, I'd appreciate the reference.
2.18.2009 11:11pm
Mahan Atma (mail):
Commenters here frequently remind me (rightfully so) that most of the Constitution is comprised of limits on government, not rights granted to individuals.

E.g., "Congress shall pass no law...", not "Persons/citizens/etc. shall have the following rights."

I also agree with the first commenter -- it would be extremely peculiar if, these being inalienable rights bestowed by a Creator, that Creator decided they should only be bestowed upon U.S. citizens.
2.18.2009 11:18pm
Sean Gleeson (mail):

When has an invading army (not an occupying army but one in the process of invading and pacifying foreign territory) ever allowed soldiers to bring their wives with them?
American Revolution, for one. Officers of high rank often brought their wives along.

But the English hardly thought of their army as invading. They were defending their own colonies against rebellion.
2.18.2009 11:35pm
Jon Roland (mail) (www):
cognitis:

Roland:
Your cited article and section from your link enumerates Congressional powers but does not pertain to ius gentium

Mostly correct. The phrase "law of nations" used in the Constitution refers to the state of the doctrine in 1787, as discussed by such writers as Grotius, Pufendorf, and Blackstone, among others we have on our website. But I suspect most of the members of this forum would prefer the English translation of the Latin you provided, which we also have on our website.

Note that the meaning of "law of nations" was frozen at the point of ratification on June 21, 1788. The doctrine continued to evolve among other nations, but the Clause did not confer on them the power to amend our Constitution by changing the doctrine.
2.18.2009 11:43pm
Ricardo (mail):
When has an invading army (not an occupying army but one in the process of invading and pacifying foreign territory) ever allowed soldiers to bring their wives with them?


American Revolution, for one. Officers of high rank often brought their wives along.

The 13 colonies had been under British control long before the American Revolution: it wasn't foreign territory for them in any sense. Unless you talking about the Hessians.
2.19.2009 12:06am
Jon Roland (mail) (www):
ShelbyC:

Voting is more of a Privileges.

Correct. The rights associated with it are the rights not to have the privilege denied on certain grounds, like race, gender, age, failure to pay a tax, etc.
2.19.2009 12:14am
Jon Roland (mail) (www):
Clayton E. Cramer:

American Revolution, for one. Officers of high rank often brought their wives along.

Not just officers. A lot of wives, sisters, daughters, and other women insisted on accompanying the troops, and provided vital support services, freeing the men to fight. See Militia Women .
2.19.2009 12:21am
cognitis:
Roland:

Thanks for your reply. The following extract from my citation above pertains strictly to the matter:
quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur.
Take care in electing translations, as one by a Hassell on Fordham University's site errs in rendering "quod" as subordinating conjunction rather than as relative pronoun. I render as follows: "That however which natural reason constitutes between all humans is what is equally observed by all peoples and called ius gentium, that kind of law common to all races."

The "Law of Nations" cited in the USCON clearly is not ius gentium but rather a special part of ius civile, the part ruling relations between states; under this interpretation, ius civile would be the law of "civilized nations", while ius gentium would include laws common to all races.
2.19.2009 12:39am
Jon Roland (mail) (www):
cognitis:

The "Law of Nations" cited in the USCON clearly is not ius gentium but rather a special part of ius civile, the part ruling relations between states; under this interpretation, ius civile would be the law of "civilized nations", while ius gentium would include laws common to all races.

It was not ius gentium as that term was used by the ancient Romans, as universal common law, but the 16th-18th century political philosophers the Founders followed, at least the ones who wrote in Latin, tended to use it with the meaning that they translated as "law of nations", which is sometimes equated with the "laws of war and peace". By that time in European political thought, the distinction tended to collapse into ius gentium (law of nations) vs. ius inter gentes (treaties and conventions). I agree that is conflation of what should be distinguished, but it is also history.

All this can be confusing to persons who are not Latin and political philosopher-historians. We might want to take the discussion out of this forum. You are welcome to email me at constitution.org.
2.19.2009 12:58am
cognitis:
Roland:

Thanks for your invitation, and thanks for introducing me to your website.
2.19.2009 1:09am
Duffy Pratt (mail):
Is there anyone here who thinks that a foreign corporation, when sued, does not have the right to get notice of the suit, to appear in Court and present its defense, to get a fair hearing, etc...??? If a foreign company has these rights, where do they come from? Maybe they should not, but its abundantly clear that aliens in fact have due process rights.
2.19.2009 1:25am
J. Aldridge:
Rep. Bingham argued aliens had no right to bail, assembly, freedom of speech, etc. Only right to the laws that protect all persons from arbitrary execution, imprisonment.

He also accepted the fact the Constitution gave congress no power over immigration. So probably not a good idea to quote his fourteenth amendment words in order to make a case for expansive immigrant rights.
2.19.2009 2:08am
Eugene Volokh (www):
J. Aldridge: I'm puzzled by your argument: I quote Madison as to the original Bill of Rights, and cite two Supreme Court decisions from the late 1800s on the Fourteenth Amendments. You paraphrase, in your customarily opaque style, one phrase by Bingham. What I'm missing is why we should believe Bingham rather than the other sources, other than your say-so.
2.19.2009 2:19am
Perseus (mail):
Property is a right that aliens possess under the Constitution:

a nation by the very act of permitting the Citizen of a foreign country to acquire property in its territory, whether to Lands, funds, or to any other thing, tacitly engages to give protection and security to that property and to allow him as full enjoyment of it as any other proprietor.
--Alexander Hamilton
2.19.2009 3:56am
J. Aldridge:
EV: Isn't worthwhile to at least have some perspective from the author of the amendment's first section? Fuller court decisions were not exactly known to be first rate jurisprudence. The railroads remember, were largely responsible for who sat on the court, and the courts decisions generally were drawn up to favor their sponsors rather than say anything about constitutional law.
2.19.2009 6:40am
jvarisco (mail) (www):
Convicts (felons to be precise) also lose their second amendment rights. Plus sex offenders lose fourth amendment ones, etc. And quite a few interned Japanese didn't have all that many due process rights for a while. The constitution extends certain rights - unless the government feels that they need to take them away for the public good.

Illegal entry is a federal crime. Last time I checked, we weren't all that big on enforcing the law of nations.
2.19.2009 8:20am
Oren:



Illegal entry into a country is an offense against the law of nations.

In that case, I am a war criminal (when backpacking in Northern WA and ID, the trails frequently wind back and forth between the US and Canada).
2.19.2009 9:20am
Clayton E. Cramer (mail) (www):

And quite a few interned Japanese didn't have all that many due process rights for a while. The constitution extends certain rights - unless the government feels that they need to take them away for the public good.
My recollection is that the Korematsu decision held that military necessity justified that loss of rights, and they refused to question whether the military necessity claim was correct or not. (Even if it had been legitimate in December 1941 or March 1942, and I agree that there were other, baser motivations involved as well, it certainly wasn't true by the time the Court made its decision.)

There's some truth to the claim that the Constitution is not a suicide pact. Yelling "military necessity" shouldn't ever shut off questioning. But neither should we arbitrarily deny that there are times that extreme conditions may require temporary limitations on a good principle. See Jefferson and Madison's correspondence on this issue while Madison was drafting the Bill of Rights as to the relative hazards of too broad a statement of principle causing governments to make exceptions, and eventually abandoning the principle completely.
2.19.2009 10:36am
Tracy Johnson (www):
I seem to remember that in the move "Amistad" there was mention of those rights being afforded to those non-citizens in order to hear that case. (Or do I have it backwards?)
2.19.2009 10:37am
ShelbyC:

See Jefferson and Madison's correspondence on this issue while Madison was drafting the Bill of Rights as to the relative hazards of too broad a statement of principle causing governments to make exceptions, and eventually abandoning the principle completely.


Or see CJ Renquist's book , All the laws but one.
2.19.2009 10:41am
Clayton E. Cramer (mail) (www):

I seem to remember that in the move "Amistad" there was mention of those rights being afforded to those non-citizens in order to hear that case. (Or do I have it backwards?)
American jurisprudence concerning slaves and free blacks is hopelessly confused because slavery and the racial distinctions associated with it were contrary to the principles of our laws. See Ely v. Thompson, 3 A.K. Marshall (Ky. 70 (1820) for an example. They came to the right result, but carefully worded: "Although free persons of color are not parties to our social compact, yet they have many privileges secured thereby, and have a right to its protection." The law subjecting free persons of color to whipping for "raising his hand in opposition to a white person" was unconstitutional because it denied a free person of color the right to self-defense. What in the heck does "not parties to our social compact" mean?
2.19.2009 11:08am
Bart (mail):
Constitutional rights are generally granted to the People. There is a bright line difference between alien civilians peacefully residing among the citizenry in the United States and alien wartime enemies waging war on the People in or out of the United States. It is facially ridiculous to number foreign enemies waging war against the People to number among the People enjoying constitutional rights.
2.19.2009 11:56am
cognitis:
The slaves contained in the Amistad's hull had the same status and rights as Scotch-Irish and Irish-Catholic slaves transported by the English. English trading companies didn't permit thitherto convicts and debtors the faculty topside to kinda like jump the crew, capture the ship, and take the ship to kinda like say a French or Spanish port. Scotch-Irish and Irish-Catholic slaves were sold at slave auctions right alongside African slaves.
2.19.2009 12:30pm
David Drake:
Waldo (and Bart)--I can't accept your distinction between "people" and "persons." I've just (briefly) reviewed the original Constitution and its Amendments and believe that the real distinction is between a "person" and a "citizen." See, e.g Article 4, Section 2, and the various clauses thereof. The Framers here use both; had they meant "citizen" in e.g., the first clause of The Fourth Amendment, I think they would have said so.


I think that the Framers use "people" as the plural of "person" and not as a synonym for "citizens" at least where it is not capitalized, as it is in the Preamble and the Article I, Section 2, Clause 1:



The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.


Here, the second clause speaks of "Electors," which might be more or less inclusive than "citizens." Further, note that the word "People" is capitalized, unlike in the Fourth Amendment.

Further, the distinction between "citizen and "person" is fundamental to 14th Amendment jurisprudence.

So I concur with Clayton E. Cramer.

Having said that, then, aliens legally residing here would have the rights that extend to "persons" and "people." Surely you would not argue that an alien is not a "person" within the meaning of the Fifth Amendment, would you?

And, as pointed out by Mahan Atma, many of the Amendments speak of things that Congress cannot do, not that Congress cannot do to, e.g. Citizens.
2.19.2009 1:05pm
Melancton Smith:
Sarcastro wrote:

They thing about illegals having no rights is that it means you get to assume they're illegals without due process! It's a pretty keen system.


Yeah, like the guy in "Johnny Dangerously" that was deported to a country he wasn't even from!
2.19.2009 1:07pm
Jon Roland (mail) (www):
Oren:

Illegal entry into a country is an offense against the law of nations.

In that case, I am a war criminal (when backpacking in Northern WA and ID, the trails frequently wind back and forth between the US and Canada).

If you were a U.S. citizen it would not be an offense to re-enter into this country, but Canada might have an issue with you (probably not). But all offenses against the law of nations are not "war crimes".
2.19.2009 1:34pm
MCM (mail):
A. Zarkov:

I think most people would agree that if the Mexican army invaded the US, we have no obligation to provide them with due process of the sort afforded to civilians. We could shoot them on sight and detain them in POW camps. Now suppose these soldiers take off their uniforms. Do they now get magically transformed into "persons." Suppose some members of the invading army bring their wives who then give birth on American soil. Are these children then citizens?


I wish I were this good a troll.
2.19.2009 1:41pm
Cold Warrior:
David Drake, I think Waldo has by far the more persuasive argument. See VC blogger Paul Cassell's opinion on this matter.
That's not to say it's an easy issue to decide. For one thing, I'm not so sure the dividing line is between "citizen" and "alien." For certain 4th A. purposes, Cassell drew the line between previously-deported/illegally reentered aliens a nd all other citizens/aliens.
And I'm not sure what to make of Madison's comments. On the one hand, we could read this as suggesting that all enerated rights apply to all aliens and citizens alike - even "banishment" (read: deportation) of an alien would need to be decided by a jury. Of course, this is not the route we took. And what to make of the 2nd A. and the right of "the people" to bear arms? On the other hand, the rights (other than to a jury trial for banishment) discussed by Madison are the classic rights of "persons" rather than those held by The People. Again, the 2nd Amendment is conspicuous by it's absence. So to the other "the People" amendments, such as the 1st. Madison sticks to the deprivation of life and limb and liberty stuff in extending procedural protections to aliens. To me, that says something important. I don't see any support here for either extreme position: that constitutional rights simply don't apply to any class of aliens, ever, or that all constitutional rights apply to all classes of aliens regardless of the circumstances and the nature of the right.
2.19.2009 1:49pm
Oren:


If you were a U.S. citizen it would not be an offense to re-enter into this country, but Canada might have an issue with you (probably not). But all offenses against the law of nations are not "war crimes".

I'm really allowed to travel abroad and then reenter the country without going through border patrol or customs? I find that incredible. Otherwise, I could see a lucrative business buying a Husky and servicing the US-Canada border charging a premium for not asking too many questions.

I accept your second point. I'm guilty of "crimes against the law of nations", not "war crimes".
2.19.2009 2:34pm
PC:
Constitutional rights are generally granted to the People.

I must have missed that in my undergrad PoliSci courses. I'm pretty sure I was taught that the People granted rights to government, not the other way around.
2.19.2009 3:54pm
David Drake:
Cold Warrior. Thanks for the cite.

While reading the opinion, I found the following case that seems to be the main authority for Judge Cassell:

U.S. Supreme Court
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). Waldo, take note.


I agree with most of your position (particularly the last sentence), and did not intend to say that the crucial distinction everywhere was between "citizen" and "alien," only that it seemed to me that the there is a distinction between citizens and persons, that "persons" encompasses "aliens" present in the U.S. and (unschooled as I was by Justice Rehnquist and Judge Cassell)that "the People" in the Preamble and elsewhere meant something different than "the people" in, e.g., the Fourth Amendment.

If I were Judge Cassell, I would have held that there was no Fourth Amendment violation because the police have the right to ask people on the street, at least in a questionable situation, for I.D., to question them until they say who they are if they have no I.D., and to run the I.D. through the "system."

I read Judge Cassell to hold that the difference is not between citizens and aliens, but between persons with a substantial connection with the U.S. (even if they might be undocumented aliens), and aliens who have been deported and ordered not to return, and then return and refuse to say how long they've been back.

BTW--is there anything in this whole idea that helps with the Guantanamo or other Terror War issues?
2.19.2009 5:10pm
David Drake:
BTW--the original post asked whether there was a difference between "citizens" and legally admitted aliens. I do not believe that either of the opinions I discuss above would say there was any difference with respect to the Fourth Amendment.

Judge Cassell says "the people" means persons with some kind of substantial connection to the U.S. A legally admitted alien should qualify for that status, and even an undocumented alien could.
2.19.2009 5:13pm
Bart (mail):
PC:

BD: Constitutional rights are generally granted to the People.

I must have missed that in my undergrad PoliSci courses. I'm pretty sure I was taught that the People granted rights to government, not the other way around.


I misspoke. It would be more correct to say that the Constitution generally guarantees the rights of the People.
2.19.2009 7:58pm
ReaderY:
But of course the right to a trial by jury is the right of "the accused". The Framers intentionally used a term much broader than "person", let alone members of "the people", to clarify that even slaves and slave equivalents have such rights. The 13th Amendment did the same in using the term "party" rather than "person" to clarity that the prohibition on slavery applied even the question of what other rights if any ex-slaves might have was still in the air and however it might eventually be answered. The Bill of Rights alots status based on specific textual statements, not vague sentiments.
2.19.2009 8:44pm
Dennis Nicholls (mail):
I always think that the 14th Amd. took pains to make a clear distinction between persons and citizens. Citizens shall not have their privileges or immunities abridged: persons are to be accorded due process and equal protection.

Unfortunately the Slaughterhouse cases essentially wrote the P&I clause out of our Constitution.
2.20.2009 6:17am

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