The Constitution - It's Only a Piece of Paper

It seems Senator Susan Collins is in the news for railing against the fact that the Underpants Bomber was read Miranda rights and given access to a lawyer. Glenn Greenwald cites the Constitution and the courts (as if that will sway RWA – Right Wing America) to counter Collins’ statements.

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.

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[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.

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The Boumediene [v. Bush Supreme] 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.).

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[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.

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[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.

Time for a new amendment.

The only way to argue that these rights apply only to Americans is to argue that only Americans, but not foreigners, are "persons."

Or that. If we can apply the designation of “persons” to corporations (and we do), then surely we can exclude it from foreigners.

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.

Oh, yeah….where’s Orly Taitz?

The worst thing that I can see about this decision on the part of the Obama DOJ to treat the man as the criminal that he is, is that their decisions about rights and laws seem to be all over the board. Sometimes they act like the Bush DOJ, and treat laws as dispensable and rights subject to the king's decree. At other times, they act in accordance with the law. Which, perhaps, is the same thing as holding rights subject to the king's decree.

....but hey, do what you want....you will anyway.