Obviously other laws can and should cover and provide legal protections to foreigners who legally visit America (and Congress has no doubt passed such laws) and basic human rights should be respected, but the view that Constitutional protections apply to foreigners is completely incorrect. The Supreme Court has gotten this issue wrong in the past and today Glenn Grenwald points to wrongful court decisions, rather than the Constitution itself, to defend this erroneous view.
But the Constitution resolved the issue from the get go in its introduction, the Premable, where it spelled out its scope. In the Premable the Constitution itself states:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.
Foreigners are not the "we the people" who created the Constitution. They are not "ourselves" nor are they "our Posterity." Therefore Constitutional protections do not apply to them. Similarly, it would be strange for a person to walk into a condo complex where he doesn't live, and is simply visiting, and then claim he's owed a check because the HOA rules state that "each person is entitled to a percentage of interest collected from the reserve account." A clever wordsmith lawyer might seize on those rules using the term "person" rather than resident, but common sense and the fact the HOA rules intro says it applies to property owners who formed the HOA should make it clear. There simply is no serious argument that our Constitution applies to foreigners and, sadly, Glenn Greenwald's legal analysis has gotten very unserious over the past year or so.
The Constitution does, however, discuss the power of the federal government to make Treaties, and those Treaties are on-the-same-level as the very Constitution itself, being listed as part of the Supreme Law of the Land. It makes sense that laws about what rights visitors may or may not have (as far as our government is concerned) would be passed by our Congress in negotiations with the governments of foreigners to secure lawful rights, with the highest legal protections, of their citizens on our soil. But the Constitution itself very clearly does not apply its protections to foreigners regardless of whether a portion of its text use the word "citizens" or the word "people."
These facts about our supreme law do not change the dangerous wrong-headed actions of President Trump on behalf of the hostile foreign government that controls him, however.
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I agree the view is legally wrong. I don't agree it should be. If we're to say the rights expressed in the Constitution are endowed by our Creator, then they are endowed to every human being. They are natural rights. And if that's the case, they apply to everyone. Because the Creator doesn't care about our interstate system or geography.
ReplyDeleteValid point of view and it follows from the idea held by some of the Founders although it was expressed not in the Constitution, but rather in the Declaration of Independence, by many men who did not actually believe that all men created by the Creator had natural rights. The stain of American slavery shows that the pre and post Constitutional founders did not truly believe what was written in Jefferson's document (Jefferson, of course, writing lofty great things while owning slaves).
DeleteBut what they believed doesn't have to inform your valid view of what our supreme law should be amended to reflect, of course, and I may share your view in some part. I'm a bit cautious about any nation believing it was empowered and created by God with some kind of divine jurisdiction over the planet's inhabitants. So I'm not sure if I share your view on what the law should be, but I might be. Maybe if one day our military officers and other public officials begin having concern with what our law actually is, I might turn my attention more toward what it should be.
Thanks for the value added comment.
This is a fundamental misunderstanding that many well meaning individuals often have. Foreigners are protected by the Constitution because “We the People” is just another way to say society.
DeleteI am not sure what really prompted your blog post, but whether you are a permanent resident or undocumented you are able to enjoy the benefits of the U.S. Constitution as a pure by-product of being a member of our society.
For example, I am a U.S. Citizen. If I was stopped at a U.S. checkpoint (like your viral video), I have the right to remain silent and not have my 4th amendment rights violated. If I am detained, then arrested, I have the right to due process to prove I am a U.S. Citizen. ICE cannot just deport me and assume I am not really a U.S. citizen. I get to see a judge and have my day in court.
All of the rights mentioned above are inalienable and are given to “We the People”. Even undocumented immigrants get those rights because if we chose to exclude them, we would most certainly at some point exclude US citizens. In my scenario at the checkpoint, by remaining silent the U.S. Government can just assume I am undocumented and detain/deport me. The only way to protect citizens is by extending equal rights to all members of society. I think that the Supreme Court has largely got this right over the years.
Thanks for the comment. I agree with the need for due process that you speak about for people on our soil, I just disagree that the Constitution provides it as a right. That is something for Congress to provide via treaty or simply by law and it's wise to do so if we want people to visit from other countries. But I disagree that the Constitution itself provides those rights to non-Americans for the textual reasons I provided in the post.
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