Constitutional Rights for Non-Citizens?

Ricochet member Flint Davis asks whether non-citizens get the benefit of constitutional rights. It used to be said that “the Constitution follows the flag,” and that the flag did not extend beyond the territory of the United States. This meant two things. First, the Constitution applied everywhere in U.S. territory, but that it did not outside U.S. territory. Within U.S. territory, non-citizens have rights because of the 14th Amendment, which declares “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.” Just before the Due Process and Equal Protection Clauses, the 14th Amendment prohibits states from making or enforcing “any law which shall abridge the privileges and immunities of citizens of the United States.” Notice that the 14th Amendment uses citizens in one places, and persons in another. This has long been thought to mean that non-citizens (“persons”) have due process and equal protection rights, once in the territory of the United States. The Fifth Amendment (which applies to the federal government) likewise uses the phrase “no person shall be . . . deprived of life, liberty, or property, without due process of law.”

Sorry for the obsessive focus on the constitutional text — that can be a big no-no on the Supreme Court.

Second, until the 1950s, even citizens outside U.S. territory might not fully benefit from the Bill of Rights — thus, “camp followers” as they were once known were subject to military jurisdiction abroad for crimes. But in a case called Reid v. Covert, the Court concluded that U.S. citizens have the same rights against the U.S. government when it acts against them abroad. Aliens in the U.S. have essentially the same rights as citizens for many purposes because of the 5th and 14th Amendments’ language, but aliens do not have constitutional rights against the U.S. government outside its territory. This was the basic lesson of a Supreme Court case in 1990 called Vergudo-Urquidez, which involved the use of bounty hunters to catch a drug cartel leader who killed a DEA agent. The Court held that the doctor could not claim that he had Fourth Amendment rights against the U.S. government for an arrest in Mexico.

This is a good example of how the Supreme Court has distorted constitutional law in the terrorism cases. Normally, the al Qaeda agents held at Guantanamo Bay would not enjoy the same constitutional rights that U.S. citizens have, including the right to habeas corpus, unless they were on U.S. territory. The Supreme Court made that clear in a case from 1950, Eisentrager, where German soldiers filed in federal court to be released, but were held not to have that right because they were not U.S. citizens and they were outside U.S. territory. Hence, the Supreme Court jukedand jived two years ago to claim that Guantanamo Bay was really territory of the U.S. (which means, I suppose, that Congress could admit it as the 51st state).

  1. FeliciaB

    I’m feeling a smackdown comin’ on… Where’s Professor Epstein?

  2. Adam Freedman
    C

    At the risk of further obsessing about the text…. I agree that the provisions that John quotes, which apply to “persons,” would apply to any person within the US. But there are other provisions – notably the Fourth Amendment – which apply to “the People.” In Verdugo, the Rehnquist opinion says that “the People” was a term of art at the time of the founding; it meant “the polity,” or those who participate in the political process.

    John: do you agree with the Verdugo rationale? Doesn’t it mean that the Fourth Amendment (and other provisions reserved to “the People”) would not apply to illegal aliens, even though they are physically within the US?

  3. John Yoo
    C

    To quote a President, bring him on.

  4. Aaron Miller

    I thought all of our military bases abroad are considered sovereign U.S. territory.

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