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.