by Connor Boyack
Yes, you read that right. The Constitution applies to terrorists. It also applies to stay-at-home moms, illegal immigrants, truck drivers, anti-government radicals, and Mahmoud Ahmadinejad.
Put differently, the Constitution does not apply only to citizens of the United States. It seems that protectionist collectivists treat this document like a two-year-old treats his favorite toy – unwilling to share, and incorrectly believing that it is his and his alone. This fallacy has become so propagated throughout the country’s general political mindset that a barbaric jingoism has resulted, leading people to automatically support the denial of constitutional protections of freedom for anybody who is a “terrorist.”
But who is a terrorist?
The picture that first comes to mind is the “insurgent” fighting against our military in Iraq, Afghanistan, and the other countries of the Middle East in which our military is increasingly becoming engaged. Some examples of such “terrorists” might be: the vengeful man whose innocent brother was killed by an unmanned drone over the border of Pakistan; the adrenaline-fueled teenager taking on the militarized Goliath occupying his hometown; the man in the wrong place at the wrong time, picked up by a bounty hunter and sold to the American government with a fictional story created about his involvement in terrorist activities; and the list could continue, portraying stories far different than the standard “radical jihadist” that dominates our media’s narrative.
Things hit closer to home when the suspected terrorists have white skin. Take, for example, the Missouri Information Analysis Center report which labeled as terrorists supporters of Ron Paul, Chuck Baldwin, Bob Barr, and anybody sporting paraphernalia associated with the Constitution Party, Campaign for Liberty, or the Libertarian Party.
The absurdity continues – the government has also considered defenders of the Constitution, home-schoolers, peaceful protestors, and a host of patriotic organizations and individuals as terrorists. Do these “domestic rightwing terrorists” not merit constitutional safeguards of their liberty?
In other words, with a “terrorist” being any individual – U.S. citizen or not – upon whom the government arbitrarily imposes that label, why would anybody not consider the Constitution as applying to that individual? Some may take issue with this generality and instead specify the argument as only being relevant to non-citizens. But do these folks even understand what the Constitution is?
The Constitution is a document that created the federal government, and in so doing, specified powers granted to and denied that entity. It does not apply to a person or group of people, but rather to the government itself. In saying above that the Constitution applies to terrorists, truck drivers, etc., the idea is conveyed that the Constitution applies to all people who have any dealings with the federal government.
The cotton picker in Uzbekistan couldn’t care less about the U.S. Constitution, and taken literally, it does not really apply to him. But say this person vacationed in Pittsburgh, or say he visited the local American embassy. Having any interaction with agents of the federal government makes the Constitution relevant to him, since that governing document applies to the federal government and those who comprise it. Whether the person be a cotton picker, an “insurgent,” or anybody else, the federal government is bound by the constraints of the Constitution, and in attempting to administer legal punishment to another person, must give due process and protect other basic human rights – rights which the Declaration of Independence makes clear are given by the Creator to every individual.
Were this not the case, the government could extinguish the life of any non-citizen it wanted, at any time, for any reason – or for no reason at all. For if the guarantees enshrined in the Constitution apply only to U.S. citizens, what prevents the government from denying these rights to any non-citizen? The constitutional restraints are not specific to an individual who happens to be a citizen, thus (allegedly) preventing the federal government from denying them their rights, but rather are shackles of self-restraint placed around the appendages of the government itself, regardless of who the government deals with. Under the Constitution, all are recognized as enjoying basic rights such as life, liberty, and the pursuit of happiness; the government must follow an established process if it wishes to deny these rights to any individual, whatever his or her nationality.
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cross-posted from LewRockwell.com
Connor Boyack [send him mail] is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.
Copyright © 2010 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.
Connor, I am not sure I follow your analysis. What "Constitutional" rights must be afforded to that "cotton picker" at the US Consulate or Embassy in Uzbekistan? I agree that within the physical borders of America the Constitution applies to "persons" but I am unclear what you are suggesting with regard to "persons" not within our borders. Could you provide clarification?
Don't think of the constitution as something that gives you rights but something that gives the government rights. It has the rights to declare war, draft, and pass legislation for that war effort. It has the power to attack the cotton picker but because it has those rights that are defined in the constitution it has to follow whatever rules the constitution lays out for its actions.
This is a tough one! I don't claim to have all the answers but I'll take a stab at tightening up the analysis and getting at the core issues. I'd appreciate seeing other views on this…
The question raised is what the federal government can legally do to people who are not US citizens. The main language I’m aware of in the US Constitution that touches on this issue, in this context, is Article I, sec. 9 which prohibits Congress from suspending the "privilege" of habeas corpus except in cases of rebellion or invasion.
The use of the word 'privilege' indicates that habeas corpus was thought of as one of the "privileges and/or immunities" of US CITIZENS. So, arguably, the "privilege" of habeas corpus is extended only to US citizens (and can only be ‘suspended’ – not terminated).
However, ALL humans have so-called 'natural rights' and that's what the Constitution and Declaration are all about. The Bill of Rights memorializes some of these natural rights and the 5th amendment specifies that, in criminal cases, 'no person' shall be deprived of life, liberty or property without due process.' Notice that the term 'citizen' is not used here nor is this right tied to the idea of 'privileges and/or immunities.'
Even without the 5th amendment, of course, ALL people have the so-called 'natural right' to due process. You ALWAYS need the chance to prove you are innocent.
So, even if you're not a US citizen, you still have the right, as a person, to due process so that you are treated fairly. A military tribunal, for example, could satisfy this right.
One of the problems here is that we have not properly declared war. Thus, the military actions in Iraq and Afghanistan are unconstitutional. It's unclear what we should do with people we capture abroad in one of these operations. If it were a properly-declared war, we could follow the Geneva Conventions. Since it's not a legal “war” under the Constitution, what is it? Is it a criminal investigation conducted overseas on foreign soil by US military forces? What a mess!
Sadly, it's a mess I suspect the Founders did not foresee because they did not believe in getting involved in overseas operations. Our continuous military actions over the years have not been well thought out and have violated the letter and Spirit of the Constitution repeatedly.
This could have been avoided if our so-called 'leaders' had thought this through before going overseas to conduct military operations without a clear, written plan and consensus on how they would be started, conducted and completed in a way to comply with our laws and principles.
Since WWII ended, our foreign military policy has morphed into a massive, international, unconstitutional mess. Almost no one, except Ron Paul and his ilk, is willing to admit that we've screwed it up royally.
We really need to stop this crap and agree on a procedure for handling today’s military issues (such as international terrorism) that is consistent with the Constitution and our principles. If Constitutional amendment is necessary, so be it.
I think the top "terrorists" that the constitution should apply to are right in washington d.c.!!
TextualistDude, the privilege of habeas corpus does in fact extend to aliens. There is a law which prevents people from using other laws to deny them that privilege. I would further argue the military commissions act of 2006 does this. Using the MCA of 2006 to deny aliens habeas corpus is in violation of this federal law.
USC 18 § 242. Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Hi, Ben
Thanks for your comment. I'm a little unclear on your point so I might be missing something. Please forgive me in advance if that's the case…
You seem to be arguing that the MCA of 2006 violates a prior federal law, that being 18 USC sec. 242. If I've got your argument correctly, then how is it that one Congressional act "violates" another one?
There is a doctrine in the law called "implicit repeal" which is just a fancy way to say that Congress can 'correct' itself in just this manner.
Again, my point is that we need to clean up this mess and make it clear just what the rules are in today's world and this constant bickering about legal technicalities is counter-productive.
I look at it like the government has these powers and must follow these rules. Those rules could be different for different cases such as a citizen or a person. The current constitution makes distinctions between how it treats citizens and persons. The fiffth amendment actually says 'persons' so that encompasses all people so every person is entitled to 5th amendment protections whenever the federal government attempts to use its power to remove their liberty. On the other hand a state can grant immunities to a person or a citizen but other states are only obligigated to recognize immunities of 'citizens' of another state. This shows that, depending on what it says in the constitution, that its powers can be applied differently depending on if it is a person or a citizen.
you are clearly very misguided and live in a world where facts don't matter Connor. Unfortunately you are far from alone, our public school system has been setting people up for this kind of intellectual failure for decades.
So the constitution is NOT a limit on the federal government? If it isn’t, I’d be interested in some verification from the founders themselves that would hold that up.
does ITMatter
Could you be a LOT more specific and at least TRY to advance the debate? How is Connor "clearly" misguided? What facts did he get wrong? What intellectual failure are you talking about? Your comment contains NO specifics.
Without a whole lot more, it's just a personal attack (for some unknown reason) and an irrelevant, vague and unsupported criticism of the public schools.
I actually think that since we the people delegate certain powers to the government for our use then it means we own it in the same way I delegate a certain amount of money for my car. Because of that I own the car and decide what to do with it. The people who delegated a bit of their freedom away should have more of a say on how it is used than people of other nations who did not delegate any of their rights to our government. We own the government because we paid a price for it so our government exist for us.
If we are at war:
Then I think you have to be accused of a crime before most of theses rights come into play, terrorist should be regarded as enemy combatants, not criminals. If you want to treat them as criminals fine afford them the constitutional protected rights in the criminal justice system. (But I think that in itself is a violation of their rights as an enemy in an army waging war on us).
Otherwise their a foreign Soldiers not standing trial cause they didn't commit a crime for which to stand trial!
They were just captured. That means under treaty they get to tell us their name and rank ect.. and spend the rest of the war in a camp similar in environment to where they were captured in.
Of course also under treaty we are allowed to kill them on sight due to them being non-uniformed combatants.
So to be frank unless their a U.S. Citizen treat them as an enemy solder. If their a U.S. citizen then clearly they have committed the crime of treason by joining the enemy's army. To that end they must go thou the constitutional criminal process.
Thats my position anyway, and Yes before you say it, I know they should have declared war, but putting that fact aside(assuming we are at war) this is how the war should be prosecuted.
If you want to argue that we are not at war, then all of what i said here is not valid.
I don't think I can agree with the author. The United States Constitution is intended as a check on the Federal government , plain and simple. It was formed by "We the People" of the separate and sovereign states. I believe that any protection it affords is for "We the People" and not the foreign terrorist, illegal alien or any other non legal person.
We choose to allow those who are not citizens equal protection, however, our Constitution does not require it. What would be the benefit of becoming a "Legal" citizen if anyone at anytime is afforded the same protection as a citizen?
I think the answer to that is in the original understanding and definition of the Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1)…..and the Privileges or Immunities Clause of Amendment XIV, Section 1, Clause 2.
Those would define the benefits of citizenship (which, as you know, did not exist at the time of the founding).
But, limitations on government power and action are limitations across the board in their jurisdiction. That does not mean that in the theater of war, for example, that habeas needs to be provided. But, it also does not mean that they can simply sweep people outside the country and, for example, torture them.
Here is the real question: If they are part of a foreign organization waging war on us, What crime are they guilty of? How can the "torches" to get information from them be misconstrued as a punishment much less a cruel and unusual punishment?
The treaty's we made on toucher specially exclude non-uniformed combatants. Therefore baring the congressional law on torches as it apply to the rules of our military operations, we could do it and there is no constitutional issues to be had.
Its only if you think they are committing a crime and this is some kind of punishment then do you have a plausible problem. But we are not trying to "punish them" we are trying to get information out of them.
The other question, of course, is more basic. Does the constitution actually provide or afford any protection to people? I would say, in general, not. Other than – through limiting the power of the federal government.
The idea that Congress could make a law restricting the speech of a non-citizen resident or visitor – but cannot with a citizen – would be an interesting thing to study from the founding generation. My understanding is that they could not do either, but might be wrong. It certainly IS worthy some additional research, in my opinion.
The Constitution created the federal government and defined its limitations. It was formed by “We the People” and it affords the aforementioned protections however and to whomever “We the People” at the time specified in the document. The words used in the document were not chosen lightly! If the word “person” is used, the meaning of the word “person” at the time the document was written applies. The fifth amendment does not say “…be deprived of life, liberty, or property, without due process of law, unless enough citizens get together and decide this doesn’t apply to foreigners.”
As Patrick Henry once said, "He who would make his own liberty secure must guard even his enemy from oppression. —For if he fails to do so, he will establish a precedent that will reach even unto himself."
I agree with Connor. —Not because I have a bleeding-heart for the terrorists in Gitmo (I don't think about them at all, and most of you don't either, on a daily basis, and I DON'T CARE about them personally, whatsoever). I'm more concerned about the powers which our government makes for itself to prosecute (or whatever you might call it) our enemies, which it NEVER relinquishes once our enemies have been dealt with (which, if you are hoping for a war-to-end-all-wars in response to terrorism, prepare yourself for disappointment; in that sense, these powers are permanent, already).
Nothing our government does is without precedent. Proceed with caution.
Ok, I'll go along with the idea that the US
Constitution is for everyone. BUT…. The Constitution is not a suicide pact!
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Let's see, which part of the Preamble shall we toss in order to subscribe to the notion that the Constitution applies to everyone the federal government comes in contact with…toss out that domestic tranquility part…the posterity part…and change the last phrase to make it apply to everyone. What a senseless notion this is. So disappointed in the Tenth Amendment Center for promulgating such clap-trap.
You missed the point. The Constitution does not apply to you, to me, to any person at all.
It applies to the federal government – and is a strict set of limitations on actions of the federal government.
The preamble? That is a statement only and holds no legal authority, unless of course you subscribe to the pelosi/reid version of the constitution and not the founders. What does it do?
It states that the people of the U.S….created a government….and what follows is what that government is authorized to do.
period.