Kleinheider, We’re All Friends Here. You Can Tell Us.

Do you ever, at the end of a long day at Volunteer Voters, hang your head in shame for America?

Because, I have to tell you, I read the comments on this post, read the post and comments over at Oatney’s, and I had to put my head down on my desk and wait for the feeling of being too close to stupid to pass.

People of Tennessee!  I behoove you to familiarize yourself with the documents that make up the basis for our legal system and our cultural heritage before you start shooting off your mouths.

But since some of you won’t, I’m totally calling you on it.

David Oatney, Republican mastermind and future political office holder (if, indeed, those are still your plans), you think you should hold public office AND/WHEN you believe that, and I quote,

Someone who is in this country illegally has no protection under a Constitution that was intended for those who are in this country legally, living under the law by their legal residence here. If you are not in the United States in a legal capacity, you have no constitutional protection, nor any right to expect any such protection unless or until you take the necessary steps to become a legal resident of the United States. Once you obtain legal status, you then have every right to expect full constitutional protection, but not before.

Shoot, you’ve got folks supporting this nonsense.  Over at Volunteer Voters we can read:

Craig T. said,

on July 11th, 2007 at 1:35 pm

I think he is exactly right. Every person is entitled to basic human rights, but not Constitutional rights. Only those that play by the rules get the protection of the rules.

Donna Locke said,

on July 11th, 2007 at 2:00 pm

Illegal and legal aliens in this country do not have all the constitutional rights that American citizens have.

And we can see that Craig joins you back at your place to reiterate “Only those that play by the rules get the protection of the rules.”

I’m sorry that you can spout such nonsense and have no one challenge it.  I’m sorry that the challenge couldn’t come from a source you find more credible.  And I’m sorry that I didn’t see this sooner to do it sooner, but better late than never.

So, here goes.

David Oatney, Donna Locke, Craig Thomas, prove it.

Show me where in the Constitution it says that Constitutional protections for people recognized as legal persons (let me be clear, not people who are here legally, but people who are recognized as people under the law) extend only to U.S. citizens.

I’ll wait right here.

Still waiting.

Ha, now maybe I’ve been too deeply influenced by the Libertarians (Sarcastro did make me read a bunch of their propaganda), but when I flip through the Constitution, I’m struck by the nineth and tenth amendments. 

Shall we look at those together?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

You see, there are two important things going on here.  In Amendment Nine, we see that the Constitution is not claiming to outline all of the rights of the people.  It’s only spelling out some specific rights and warning us not to assume those rights “deny or disparage others retained by the people.”  

In other words ALL rights are inherent in people, even if certain ones are enumerated in the Constitution–not inherent only in legal citizens, but in the people.

Amendment ten again reinforces this notion that Constitutional power is not inherent in the Constitution, but is “delegated to the United States” by the people.  The people hand some power over to the government, but keep for themselves the powers they have not delegated to either the Feds or their local governments.

Two amendments that say that rights and powers are inherent in the people and retained by the people unless delegated to the Feds.

This seems to me to be in direct contradiction to your notion that “If you are not in the United States in a legal capacity, you have no constitutional protection, nor any right to expect any such protection unless or until you take the necessary steps to become a legal resident of the United States.” and “Every person is entitled to basic human rights, but not Constitutional rights.” and “Illegal and legal aliens in this country do not have all the constitutional rights that American citizens have.”

I will grant you that we may not have always lived up to that ideal (in other words, I wholly expect that you can find court rulings that are in conflict with the 9th and 10th amendment), but it seems clear to me that the United States Constitution recognizes all people as having inherent rights, all rights, not just basic human rights.

Then, if we peruse the 14th Amendment, it says, “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.”

Note that the 14th amendment makes a distinction between “citizens” and “persons.”  A citizen has privileges and immunities which shall not be abridged.  But a person (a state separate from being a citizen) cannot be denied by the state “the equal protection of the laws.”

Again, completely disproving your idea that Constitutional rights only apply to citizens.

Maybe back in the olden days when folks couldn’t just pull up a copy of the Constitution on their computer and see for themselves what it says, you could get away with espousing the idea that only U.S. citizens have rights, but we live in the computer age.

Did you think that no one would think to check and see if you were full of shit?

17 thoughts on “Kleinheider, We’re All Friends Here. You Can Tell Us.

  1. Jesus H. Christ. I haven’t read Oatney’s thread, but now you tell me they are attempting to hide behind Constitutional integrity? The whole “rule of law” thing of theirs has been consistently exposed for the prattle that it is, so they go here? How many new and exciting ways can these people find to beat up on those they just don’t like? Fuckin bullies, the lot of them.

  2. This country is poised at the brink of disaster, and it sickens me to see, once again, the lock-step of so-called conservatives on this issue. This is about their bestest ever wedge issue, nothing more. What on Earth do have without it? Massive debt, an economy propped up by artificial loans to provide cheap money, an aging infrastructure, and a population that is just starting to snap to the fact that all those “moral” wedge issues they pushed so hard the last 8 years (nary a peep about illegal immigration, btw) aren’t working. Can you smell the desperation?

  3. So NOW you’re a States’ Rights Advocate?

    You just hold on to those amendments. They’ll get ya far. It’s not like they haven’t effectively become moot 1000 times over by the many other transgressions of the feds.

    They’re basically a joke at this point. A cruel joke, but still a joke.

  4. Yes, B, you’ve called it. Non-citizens resident in the US are extended constitutional protections of due process — duh, that’s why they had to TRY Geronimo, who was not a citizen — but historically speaking, these are used not to further their freedoms but to police the hell out of them.

    The distinction between “citizen” and “person” illustrates that at the time the 14th Am was written, most lawmakers separated the notion of civil from political rights (a philosophy that is illustrated by rulings like Plessy v Ferguson, in which one could be denied political inclusion but still held to be a citizen for purposes of taxation — all the obligations, none of the protections). The Brown ruling and others in its wake recognized that without political voice to protect one’s civil right, promises of equal protections are a farce. Since the Gang of Five is rolling back the 20th century, it doesn’t surprise me to see conservatives embracing a Constitutional interpretation that would have been supported by a post-Reconstruction Klansmen.

  5. “Interpretation” is a generous word, Bridgett. With contemporary conservatism, no day is too bright to be called night if it means supporting some xenophobic, misanthropic, racist, or avaricious rhetorical position.

  6. Actually, *lawful* residents are always extended constitutional protections of due process, etc. The standard is that one must be a resident of the United States and have obtained substantial connections with the country. Unlawful aliens are thus a bit more dicey. As far as applicable current law (rather than historical talk about what people might have meant, or any raping and pillaging the feds might have done of states’ rights), Rehnquist wrote the plurality in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), which is the case that dealt with whether it was ok to kidnap a Mexican national and search his home and bring him here – so as you can imagine, there were lots of issues.

    ——————-
    Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights. See, e. g., Plyler v. Doe, 457 U.S. 202, 211-212 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (resident alien is a “person” within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U.S. 135, 148 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U.S. 228, 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country. See, e.g., Plyler, supra, at 212 (The provisions of the Fourteenth Amendment “‘are universal in their application, to all persons within the territorial jurisdiction . . .'”) (quoting Yick Wo, supra, at 369); Kwong Hai Chew, supra, at 596, n. 5 (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders”) (quoting Bridges, supra, at 161 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not.
    ——————-

    And then Stevens wrote a concurrence. This is Stevens, mind you.
    ——————-
    In my opinion aliens who are lawfully present in the United States are among those “people” who are entitled to the protection of the Bill of Rights, including the Fourth Amendment.
    ——————-

    so I’d say it’s a much closer question. Remember also that the warrant requirement is one of only two clauses in the Fourth Amendment. The other is a reasonableness requirement for searches, which is how we get administrative and border searches, and what they’re resting this on. I wouldn’t go for it, but it’s not a frivolous argument.

    Also, incidentally, “the people” doesn’t mean what you think it means. It’s not all people. It’s “the people.” It’s a term of art, and though it’s somewhat confusing that the people aren’t always “the people,” it’s nonetheless well-settled law.

  7. From footnote 10 of the majority opinion of Plyler v. Doe:

    …no plausible distinction with respect to Fourteenth Amendment “jurisdiction” can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.

    This statement places the resident alien legal status question directly into the context from which the 14th Amendment was originally drafted. The most relevant segment of that amendment is the first section, which Aunt B. quotes. In that section, there is a clear distinction between “citizen” and “person”; the former is clearly defined as a subset of the latter, a subset possessing “immunities” and “privileges” that the latter might not. However, the language of the section clearly states that no state may “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.”

    This means that while an ‘illegal’ can’t vote, he also is not subject to the violent whims of some nativist yahoo. The ‘illegal’, like the citizen, falls under the equal protection of the nation’s laws. The variable here (how the ‘illegals’ will be treated) has less to do with established case law than it does with the temper of whomever is running the show; it is largely a political variable.

    That’s why such nativist, barely disguised eliminationist rhetoric such as Aunt B.’s quotations above are so dangerous; we now have a federal government that has openly violated both spirit and letter of the 14 Amendment with its Orwellian legal fiction at Guantanamo Bay (it has done so somewhat clandestinely at various points across the globe). If eliminationist nativism is to be the flavor of the month, then the Constitution will take yet another debilitating body blow in the form of even harsher immigration policy.

  8. Yup, I remember the case, but Verdugo came later, and thus is more applicable. Besides, based on current jurisprudence – which I agree is moving further away from the original intent of the 14th Amendment, but then again … if we stuck with the original intent of the Framers, you know perfectly well the federal government wouldn’t have the power to have put the Civil Rights Act of 1964 under the Commerce Clause … but I digress … based on current jurisprudence, the reasonableness part of the 4th appears to be doing most of the work these days. And whether you think it’s reasonable for searches to occur without warrants for the purpose of determining status is one where I suppose reasonable minds can differ.

    Of course, I should also point out that the 14th doesn’t apply to federal action, so the feds can’t really violate the 14th, except in a metaphysical sense. They’ve incorporated some of that stuff into due process under the 5th … but now we’re back where we started.

  9. If we stuck with the original intent of the Framers, 80% of the people reading this wouldn’t be able to vote. If we stuck with the original intent of the Framers, American Indians would be long dead, most African-Americans would be slaves, and the country would stop at the Mississippi. The original intent of the Framers was concocted in a world without steam engines, germ theory, transatlantic flight, or the atomic bomb. Would those of an originalist persuasion please get their collective head out of their asses and recognize that history matters? Jesus. If the Constitution didn’t require a situtated interpretation and cognizance of historical precedent, we wouldn’t have a damn court system and law wonks like us would be out of a job.

    Verdugo was a kidnapping victim with no voluntary connection to the state and no substantial connections. I’d agree with CS that *Plyer* still controls in cases in which voluntary residents have developed substantial connection to the country. The reason that Verdugo could not rely on *Plyer* is because he didn’t meet the *Plyer* standard for protection, as the last sentence of your pull-quote notes. The *Plyer* standard itself was not changed by the Court in Verdugo, only ruled inapplicable. So, later schmater…

  10. Wow, that first part is just wrong. If the Constitution didn’t have an amendment process, most African-Americans would still be slaves. That 13th made it crystal clear that wasn’t going to work, no interpretation needed. That being said, I’m no originalist; far from it. But when you talk about bringing things into line with the drafters of the 14th (aside from the fact that, again, it doesn’t apply to the federal government, period) then you’re making an originalist argument … and if you want to go that route, you’re going to have a lot of problems keeping a logical argument on track. Gotta take the bad with the good.

    That being said … I don’t think Plyler controls, and you’d best hope that it doesn’t if you’re into constitutional protections for the undocumented immigrants, because if you read the whole thing, you’ll see that Plyler rests its holding – not its dicta, its holding – on the fact that the children of the undocumented are a special subclass. The court reasoned that undocumented aliens were a) voluntarily out of status and b) were not an immutable group, so that the Equal Protection Clause didn’t really apply, but that it would be unfair to hold their children to such a harsh standard. This situation presents nothing for Plyler to “control.”

    And in dicta, at 226: “In other contexts, undocumented status, coupled with some articulable federal policy, might enhance state authority with respect to the treatment of undocumented aliens.” Is this the standard you’re talking about? Or did we switch to the special case of school for the bebbes and nobody told me?

  11. Uhhh…no.

    The original intent of the Founders did not encompass amendment against slavery, as many of their livelihoods directly depended on profits from slavery and as a class, they benefited from the social hierarchy undergirded by chattelage. They explicitly rejected a critique of slavery in the Declaration of Independence, They could not utter the word “slave” in what is an explicitly pro-slavery (and slaveowner-empowering) document. They delayed the cessation of the international slave trade for another 20 years and did little to enforce the flow of illegally smuggled slaves. Adam Rothman persuasively argues that the defense of slavery and commitment to its expansion in the immediate post-Revolutionary period was key to the acquisition of territories in the Southwest and my work on the Northwest territory demonstrates the ways in which the Founding generation (in the federal capital, territorial officials acting in appointive capacities, and the courts) collaborated to ignore the Northwest Ordinance’s prohibition on slavery to expand slaveholding in putatively “free” territory. The same cast of characters in the early 1800s provided refuge for Haitian slaveowners refugeeing their slaves and jumpstarted the Louisiana sugar industry thereby.

    In point of fact, the United States had to fight a terrific war and kill a couple hundred thousand rebellious citizens to get to the point where the 13th, 14th, and 15th Amendment were made possible. Incidentally, these were passed by a rump Congress that did not include the former Confederate states; they were counted for purposes of ratification, but not included in the discussions over crafting the language. Moreover, their readmission in the Union was made contingent on ratification, causing many historians to argue that these amendments were coercively passed due to the US troops stationed in the South during Reconstruction. In other words, an original use of the amendatory process would have not produced these amendments at all, as the process pursued was an irregular one. Finally, the amendatory process had not been used since 1804 (12th amendment) and it was not in the forefront of federal legislative awareness — we tend to think of it as a “magic wand” and brandish it around every time someone lights a flag on fire, but it was not always perceived as an instrument of policy. The Civil War made it so — historians argue that this is the event that actually made the federal government a powerful force for domestic change and provided the impetus for using the amendatory process as a means of historicizing the document.

    However, you might be right about Verdugo. I’ll go read it again.

  12. OK, I think I see what we have here. I’m not trying to argue the Framers of the Constitution were against slavery, or contemplated an amendment against slavery, though I guess I can see where you’re getting that. I’m saying they put an amendment process into the Constitution to provide for the possibility of changing it in the future. I think we’re using two different ideas of intent: I’m simply stating that they intended to allow amendments to the document, not the particular ones that were made. If you disagree with that … well, ok, but I don’t recall seeing any restrictions on what could be changed.

    However, I’d never heard about the coercive nature of the amendments. Interesting. Thanks.

    Verdugo is simply the last case I recall addressing the rights of undocumented resident aliens, and it was also in dicta, so I wouldn’t call it a holding. But the statements of the court in both cases make it pretty clear that said rights are at best up in the air, and as I read the cases, somewhat doubtful, especially given the court’s makeup. I’m interested to hear what you think.

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  14. I’m suggesting that in way the Constitution was written, it insured that slaveowning states could block any introduction of an amendment banning slavery in perpetuity. It was in recognition of this fact that even after the Civil War had concluded, the slaveholding states could not be allowed representation during the deliberative phase of the amendment process. Finkelmann’s work on the pro-slavery constitution illustrates the way that this worked. So, what I’m saying is somewhat more than the Founders didn’t contemplate such an amendment. I’m saying that they set up a constitutional process that enshrined slavery at the heart of the foundational document and made it impossible — short of a departure from the process that they created — to question slavery as a fundamental mode of production and slaves as a form of property. One could amend — but not on that subject.

    Bruce Ackerman (Yale Law) is the historian that writes about the irregular amendatory process by which the 13th, 14th, and 15th Amendments were passed. I think it’s in *Reconstructing American Law*.

    Having reread Verdugo, and putting on my historian hat to think about where we’ve been and making some informed speculation about where we might be going — yeah…I wouldn’t bet on constitutional protection in theory. And as CS points out, in practice, it’s all down to what some local one-bullet Barney believes, since the Supreme Court is a distant (some would say, impossible) remedy.

  15. I must amend my one-bullet Barney diagnosis, Bridgett. Somehow I forgot to mention the corporate-run immigration concentration camps. In principle they are nothing new (ask any Haitian refugee who languished in federal lock-up without any due process; unless said refugee was shipped back to be tortured or killed by U.S.-backed, anti-democratic death squads, but I digress). In scale, however, they are a bit alarming, especially if one considers the executive branch’s assaults on the constitution of late (facilitated by a reactionary majority on the Supreme Court and a complicit Congress).

    My point is that this is more than just a few scattered bigots mouthing off about ‘wetbacks,’ and the danger extends beyond the undocumented immigrants. You have a well-established Right Wing Noise Machine shoving our public discourse toward eliminationism; you have an incarceration infrastructure being built by well-connected corporations (who’ve done similar work in Iraq and elsewhere in the Empire); and you have a federal gov’t doing everything it can to facilitate this neofascist metastasis.

  16. So an illegal alien comes to this country and murders someone. What are they trying to tell us, that the illegal alien doesn’t have a constitutional right to due process? Why give him a trial? He can just be summarily executed, right? And none of this appeal stuff. Who cares about cruel and unusual punishments? Torture the S.O.B.

    The Party of Lincoln brought us the 14th Amendment. Today’s Republicans no longer understand the 14th Amendment because they’ve become the Party of Jefferson Davis.

    All these little fine distinctions between the rights of “citizens” and “persons.” Then there’s the part of the 14th Amendment they REALLY don’t like: the part that says “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

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