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Tuesday, July 26, 2005



Who is protected by the US Constitution? It is a difficult question to answer because it isn’t quite spelled out in the text, yet it isn’t quite open to interpretation. As Elliot Essam noted in his comment to the Question of the Week, the 14th Amendment provides that no State shall “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.”

That seems pretty straight forward, but the obvious test is obviously staring us all in the face (though we’ve gotten pretty good at ignoring it). That test would be the detainees at GITMO. Those detainees, while on US soil, aren’t in any particular state. From a moral stand point that distinction is a pretty thin dodge, but as much as we might prefer otherwise, the law means what it says, not what it ought to mean. Indeed, the provisions of the 14th Amendment regarding human rights are actually encompassed by the 9th Amendment. The fact that the 14th had to be enshrined in our highest law is , in essence, proof that a law must say what it means to be effective. A further example would be the “Schiavo Special” cooked up for the famed Florida case. Based on the law, as written, in conjunction with the words of that law’s framers, the Federal courts correctly ruled that they could choose not to intervene, in spite of the obvious (after the fact) truth that the law was meant to compel the court to do so. Why bring up the morass of the Shiavo Incident? Because that particular case provides a useful distinction. One of the primary deciding factors used by the federal court was the “intent” of the law’s framers. Not their actual intent, per se, but the intent they admitted to in the official record, i.e. the words the spoke on the floor of the Congress.

IANAL, but I do play one on TV*. Keep that in mind as up examine the following. While it can be debated that the equal protection clause is a limit to the states, and not binding on the Federal government, there’s no need to look at the intent of those framers to answer our question. The first 10 Amendments were specifically binding upon the federal government and the same concepts that are enshrined in the clause are distributed through the Bill of rights. The 14th Amendment, among other things, overturned interpretational precedent that had been constructed in an attempt to preserve the Union against the specter of civil war.

In the Bill of Rights, only the 5th through the 8th can be unambiguously stated to apply to any person in the jurisdiction of the United States. The other enumerated rights are specific to “the people” or the States. Since the Preamble has been supported as defining law, one can reasonably suggest that ‘the people” are defined by the phrase, “We the People of the United States…”

This seems to imply that the full protection of the U.S. Constitution need only be applied to citizens of the United States. However, that test alone would be weak basis for argument. One would be forced to turn to the “official record” seeking the words of the framers, in order to divine their intent. Lacking a legal team to pour through the wealth of information left to us by the founders, I turn to the document that ranks beside the Constitution in the heart and minds of many Americans. In the Declaration of Independence many of the Constitution’s framers signed off on the simple statement, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed…”

The Preamble, and the Bill of Rights both echo the sentiments of that simple statement, that opening justification for rebellion. It would be difficult to argue that this statement did not provide insight into the intent of the framers. The key phrases being “all men” and “endowed by their Creator with certain unalienable Rights.”

What does this mean for our detainees at GITMO? Nothing, really. Amendment V provides for and exception for capital or otherwise infamous crimes during time of War. Futher, those detainees aren’t necessarily being held for criminal justice reason. They are Enemy combatants and thus can be treated, in some ways, like POWs. Certainly POWs can be held for the duration of a conflict. Of course they aren’t POWs, They are illegal and irregular forces. Historically, the prescription for such was execution.

For the other obvious segment of non-citizens, illegal aliens, the Constitution does appear to extend the full legal protection of the law. That does not mean they are entitled to the services of the state, only that they enjoy the same protections under US law as a citizen. The 14th Amendment does provide that level of protection to non-citizen in the jurisdiction of the several states. From that standpoint, the Constitution does belong to everyone.

* I don't really play a Laywer on TV.

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