[Peace-discuss] Constitution too important to be left to lawyers/legislators

[C. G. Estabrook]

	MONDAY, FEB 1, 2010 07:02 EST
	Susan Collins spreads central myth about the Constitution
	BY GLENN GREENWALD

Over the weekend, Sen. Susan Collins released a five-minute video in which she 
sounded as though she were possessed by the angriest, most unhinged version of 
Dick Cheney.  Collins recklessly accused the Obama administration of putting us 
all in serious danger by failing to wage War against the Terrorists.  Most of 
what she said was just standard right-wing boilerplate, but there was one claim 
in particular that deserves serious attention, as it has become one of the most 
pervasive myths in our political discourse:  namely, that the U.S. Constitution 
protects only American citizens, and not any dreaded foreigners.  Focusing on 
the DOJ's decision to charge the alleged attempted Christmas Day bomber with 
crimes, Mirandize him and provide him with counsel, Collins railed:  "Once 
afforded the protection our Constitution guarantees American citizens, this 
foreign terrorist 'lawyered up' and stopped talking" (h/t).  This notion that 
the protections of the Bill of Rights specifically and the Constitution 
generally apply only to the Government's treatment of American citizens is 
blatantly, undeniably false -- for multiple reasons -- yet this myth is growing, 
as a result of being centrally featured in "War on Terror" propaganda.

First, the U.S. Supreme Court, in 2008, issued a highly publicized opinion, in 
Boumediene v. Bush, which, by itself, makes clear how false is the claim that 
the Constitution applies only to Americans.  The Boumediene Court held that it 
was unconstitutional for the Military Commissions Act to deny habeas corpus 
rights to Guantanamo detainees, none of whom was an American citizen (indeed, 
the detainees were all foreign nationals outside of the U.S.).  If the 
Constitution applied only to U.S. citizens, that decision would obviously be 
impossible.  What's more, although the decision was 5-4, none of the 9 Justices 
-- and, indeed, not even the Bush administration -- argued that the Constitution 
applies only to American citizens.  That is such an inane, false, discredited 
proposition that no responsible person would ever make that claim.

What divided the Boumediene Court was the question of whether foreigners held by 
the U.S. military outside of the U.S. (as opposed to inside the U.S.) enjoy 
Constitutional protections.  They debated how Guantanamo should be viewed in 
that regard (as foreign soil or something else).  But not even the 4 dissenting 
judges believed -- as Susan Collins and other claim -- that Constitutional 
rights only extend to Americans.  To the contrary, Justice Scalia, in his 
scathing dissent, approvingly quoted Justice Jackson in conceding that 
foreigners detained inside the U.S. are protected by the Constitution (emphasis 
added):

Justice Jackson then elaborated on the historical scope of the writ:

"The alien, to whom the United States has been traditionally hospitable, has 
been accorded a generous and ascending scale of rights as he increases his 
identity with our society . . . .

"But, in extending constitutional protections beyond the citizenry, the Court 
has been at pains to point out that it was the alien's presence within its 
territorial jurisdiction that gave the Judiciary power to act." Id., at 770–771.

That's from Scalia, and all the dissenting judges joined in that opinion.  It is 
indisputable, well-settled Constitutional law that the Constitution restricts 
the actions of the Government with respect to both American citizens and 
foreigners.  It's not even within the realm of mainstream legal debate to deny 
that.  Abdulmutallab was detained inside the U.S.  Not even the Bush DOJ -- not 
even Antonin Scalia -- believe that the Constitution only applies to American 
citizens.  Indeed, the whole reason why Guantanamo was created was that Bush 
officials wanted to claim that the Constitution is inapplicable to foreigners 
held outside the U.S. -- not even the Bush administration would claim that the 
Constitution is inapplicable to foreigners generally.

The principle that the Constitution applies not only to Americans, but also to 
foreigners, was hardly invented by the Court in 2008.  To the contrary, the 
Supreme Court -- all the way back in 1886 -- explicitly held this to be the 
case, when, in Yick Wo v. Hopkins, it overturned the criminal conviction of a 
Chinese citizen living in California on the ground that the law in question 
violated his Fourteenth Amendment rights to due process and equal protection. 
In so doing, the Court explicitly rejected what Susan Collins and many others 
claim about the Constitution.  Just read what the Court said back then, as it 
should settle this matter forever (emphasis added):

The rights of the petitioners, as affected by the proceedings of which they 
complain, are not less because they are aliens and subjects of the emperor of 
China. . . . The fourteenth amendment to the constitution is not confined to the 
protection of citizens. It says:  "Nor shall any state deprive any person of 
life, liberty, or property without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws."  These provisions are 
universal in their application, to all persons within the territorial 
jurisdiction, without regard to any differences of race, of color, or of 
nationality; and the equal protection of the laws is a pledge of the protection 
of equal laws. . . . The questions we have to consider and decide in these 
cases, therefore, are to be treated as involving the rights of every citizen of 
the United States equally with those of the strangers and aliens who now invoke 
the jurisdiction of the court.

Could that possibly be any clearer?  Over 100 years ago, the Supreme Court 
explicitly said that the rights of the Constitution extend to citizens and 
foreigners alike.  The Court has repeatedly applied that principle over and 
over.  Only extreme ignorance or a true desire to deceive would lead someone 
like Susan Collins to claim that such rights are "protection[s] our Constitution 
guarantees American citizens."

Second, basic common sense by itself should prevent people like Susan Collins 
from claiming the Constitution applies only to American citizens.  There are 
millions of foreign nationals inside the U.S. at all times -- not only illegally 
but also legally:   as tourists, students, workers, Green Card holders, etc.  Is 
there anyone who really believes that the Bill of Rights doesn't apply to them? 
  If a foreign national is arrested and accused by the U.S. Government of 
committing a crime, does anyone believe they can be sentenced to prison without 
a jury trial, denied the right to face their accusers, have their property 
seized without due process, be subjected to cruel and unusual punishment, and be 
denied access to counsel?  Anyone who claims that the Constitution only protects 
American citizens, but not foreigners, would necessarily have to claim that the 
U.S. Government could do all of that to foreign nationals.  Does anyone believe 
that?  Would it be Constitutionally permissible to own foreigners as slaves on 
the ground that the protections of the Constitution -- including the Thirteenth 
Amendment -- apply only to Americans, not foreigners?

Third, to see how false this notion is that the Constitution only applies to 
U.S. citizens, one need do nothing more than read the Bill of Rights.  It says 
nothing about "citizens."  To the contrary, many of the provisions are simply 
restrictions on what the Government is permitted to do ("Congress shall make no 
law respecting an establishment of religion . . . or abridging the freedom of 
speech"; "No soldier shall, in time of peace be quartered in any house, without 
the consent of the owner").  And where rights are expressly vested, they are 
pointedly not vested in "citizens," but rather in "persons" or "the accused" 
("No person shall . . . . be deprived of life, liberty, or property, without due 
process of law"; "In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of the state and 
district wherein the crime shall have been committed . . . . and to have the 
assistance of counsel for his defense").

The only way to argue that these rights apply only to Americans is to argue that 
only Americans, but not foreigners, are "persons."  Once one makes that claim, 
then one is in Dred Scott territory.  If foreigners are not "persons," then what 
are they:  sub-persons?  Non-persons?  Untermenschen?

There are, of course, certain Constitutional rights that are clearly reserved 
only for citizens -- such as the right to vote or to hold elective office -- but 
when that is the case, the Constitution explicitly states that to be so ("The 
right of citizens of the United States to vote shall not be denied or abridged 
by the United States . . . .").  Indeed, the Fourteenth Amendment, in the very 
same clause, demonstrates the distinction between "citizens" (which only 
includes "Americans") and "persons" (which includes everyone), and proves that 
the former is merely a subset of the latter:

No state shall make or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States; nor shall any state deprive any 
person of life, liberty, or property, without due process of law; nor deny to 
any person within its jurisdiction the equal protection of the laws.

Article II, Section 1 -- in defining eligibility to be President -- makes the 
same distinction:

No person except a natural born citizen, or a citizen of the United States, at 
the time of the adoption of this Constitution, shall be eligible to the office 
of President;

"Persons" and "citizens" have entirely different meanings in the Constitution. 
There are a handful of instances in which the Constitution applies only to 
American citizens.  When that is the case, the Constitution explicitly uses the 
word "citizens."  In all other instances, it simply restricts what the 
Government is permitted to do generally or uses the much broader term "persons" 
to describe who holds the rights it guarantees.  That's the obvious point the 
Yick Wo Court made in 1886 in holding "these provisions are universal in their 
application, to all persons within the territorial jurisdiction," and it ought 
to prevent the most minimally honest individuals among us from claiming 
otherwise, as Susan Collins just did.

It's certainly true that, even after Boumediene, there is a viable debate over 
whether so-called alien "enemy combatants" held outside of the U.S. are entitled 
to the full panoply of Constitutional protections (of course, that debate 
ignores the unanswerable question:  how do you know someone is an "enemy 
combatant" -- let alone a "Terrorist" -- if they don't first have a trial?). 
There are also instances (such as deportation hearings) where the due process 
rights to which foreign nationals are entitled are less stringent than standard 
rights guaranteed in criminal trials (becuase foreign nationals have no 
Constitutional right to be admitted entrance to the U.S.).

But this right-wing demagoguery (coming from both Republicans and some 
Democrats) has nothing to do with those debates.  For one thing, the accused 
Christmas Day bomber was captured and is being held inside the U.S. (right-wing 
fear-mongerers have long argued that we should not bring GITMO detainees to the 
U.S. because, once inside the U.S., they would then enjoy full Constitutional 
protections).  But more important, the standard rhetorical formulation being 
used -- "extending rights to foreign Terrorists which the Constitution reserves 
for U.S. citizens" -- suggests that Constitutional rights are for American 
citizens only.  That is blatantly false, and anyone making that claim -- as 
Susan Collins and so many others have -- is either extremely ignorant or 
extremely dishonest.

http://www.salon.com/news/opinion/glenn_greenwald/2010/02/01/collins/index.html


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