US Constitution Protects Non-Citizens as Well

Since the failed Christmas Day bombing attempt, many in the public have struggled with how we should treat Umar Abdulmutallab. Last week, two prominent writers, one of the Washington Post (Charles Krauthammer) and one of Politico (Rory Cooper) stated that the undie-bomber should not be given a criminal trial because that would amount to "extending constitutional rights to non-citizens." The underlying premise being that the Constitution applies only to U.S. citizens. This is not true and it is not even a topic of reasonable debate among legal scholars and lawyers. The law is clear - the Constitution is not limited to citizens. And yes, the Constitution applies to terrorists captured in the United States.

The Constitution is a document that limits what the government can and cannot do. It is not a document that grants rights to citizens or non-citizens. Those rights, as evidenced in the Declaration, exist independent of whether or not we have a government. Thus, it should be assumed that the Constitution applies to everyone in the United States or under the government's control, unless explicitly stated otherwise. For example, several of the amendments in the Bill of Rights protect "persons" or "the accused" from government overreach and abuse. As used in regular speech, the term "person" is not limited to just a U.S. citizen. A "person" is any human being. But how can we be sure that the Founders intended to protect all "persons" and not just "citizens?" The answer is simple. The Founders also used the word "citizen" in the Constitution. For example, in listing the requirements of who may be elected as president, one must be a "citizen" of the United States. If the Founders wanted habeas corpus, the right to a trial, and equal protection of the laws to apply only to "citizens," they would have used that specific word instead of "persons" - broadly speaking. Accordingly, unless specifically stated otherwise, the Constitution protects the rights of all "persons" under the government's control.

The Supreme Court has ruled that the Constitution applies to persons, even if they are not U.S. Citizens. In the 14th Amendment Equal Protection case of Yick Wo v. Hopkins, the court overturned a criminal conviction of a Chinese citizen for violating laundry shop regulatory laws. The court wrote, "The rights of 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." (emphasis mine) The court added, "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." (emphasis mine)

As recently as 2008, the principle was reaffirmed in the case of Boumediene v. Bush. Even though it was a 5-4 decision on the specific question presented to the court, the nine Supreme Court justices unanimously agreed that the Constitution applies to non-citizens in the United States, including one of the most conservative Justices - Justice Scalia. Scalia wrote, "But in extending consitutional 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." (emphasis mine) Not even the most conservative justice would argue that the Constitution only applies to U.S. citizens.

The law is clear that the protections of the Constitution do not apply exclusively to U.S. citizens. Both Democratic and Republican presidents, beginning with Reagan, have recognized this fact and submitted terrorists to U.S. courts. Why is this issue still being debated? Do not let those who claim the Constitution applies only to U.S. citizens fool you. The simple and boring fact that has remained unchanged for centuries is that the Constitution applies to all persons within the jurisdiction of the United States. To claim otherwise is being ignorant of the law or dishonest.