5 ms·

There is major difference in the rights you have before and after you cross the border. That's true for foreigners, but for citizens too.

pbhjpbhj 9y ago
The text of the Constitution disagrees: >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 how the early part specifies citizens, the latter part specifies persons. At border control a person is in jurisdiction of the USA legal system and so, according to the literal text deserves equal protection of the law. I'm aware the established interpretation differs, however, the writer of the amendment clearly meant to extend the rights and protections to all IMO.
- maxerickson 9y ago
  The amendment repeatedly says "State", it isn't talking about the Federal government. There's still due process to consider at the border, but applying border controls is pretty well established as due process.
  - nate_meurer 9y ago
    > The amendment repeatedly says "State", it isn't talking about the Federal government. True, but the Supreme Court has repeatedly decided that the 5th amendment imposes both due process and equal protection requirements on the federal govt, just as the 14th imposes them on the states. E.g., see Lawrence v. Texas. > "...applying border controls is pretty well established as due process." This is a pretty vague statement, but it not really true in any sense. The constitutionality of our current border control practices is still being vigorously litigated.
    - maxerickson 9y ago
      Which physical border search has been ruled unconstitutional?
      - nate_meurer 9y ago
        United States v. Cotterman, for example, declared a major piece of CBP's policy (forensic examination without probable cause) unconstitutional. However you seem a bit confused. You started talking about due process, but now you appear to be shifting the goalposts to 4th amendment issues. Your statement, "applying border controls is pretty well established as due process", doesn't really make sense. Due process is only one of the many thorny issues that embroil the border search exception, and the exception's constitutionality along due process lines has not been decided by the supreme court one way or the other. Perhaps I should ask you, how did you arrive at "pretty well established"? Can you provide a bit of case history?
        maxerickson 9y ago
        Aliens are detained upon arrival and may be detained at length. If the arbitrary permitting of entry that follows that detention wasn't considered due process we wouldn't have border controls. My other response was a somewhat sarcastic reply to The constitutionality of our current border control practices is still being vigorously litigated.. It's the details that are being litigated, not the overall detention and search of foreign nationals.
  - pbhjpbhj 9y ago
    I'd missed that .. so they're not State borders, they're federal, and States don't enforce those laws. Border controls wouldn't be wrong, it would be if you did unlawful searches and such that would be wrong. Out of curiosity what legal move makes the State not obliged to prosecute the Federal government under this amendment for breaking the State law? States wouldn't be able to ratify it (it seems to me: otherwise they'd be making laws allowing unequal treatment of persons), so it must be pretty early and high-level - presumably there's a blanket Feds can do as they please (wrt state laws) that makes this possible?
    - maxerickson 9y ago
      Yeah, Federal law trumps state law: https://en.wikipedia.org/wiki/Supremacy_Clause https://en.wikipedia.org/wiki/Supremacy_Clause

pbhjpbhj 9y ago

The text of the Constitution disagrees: >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 how the early part specifies citizens, the latter part specifies persons. At border control a person is in jurisdiction of the USA legal system and so, according to the literal text deserves equal protection of the law. I'm aware the established interpretation differs, however, the writer of the amendment clearly meant to extend the rights and protections to all IMO.

maxerickson 9y ago
The amendment repeatedly says "State", it isn't talking about the Federal government. There's still due process to consider at the border, but applying border controls is pretty well established as due process.
- nate_meurer 9y ago
  > The amendment repeatedly says "State", it isn't talking about the Federal government. True, but the Supreme Court has repeatedly decided that the 5th amendment imposes both due process and equal protection requirements on the federal govt, just as the 14th imposes them on the states. E.g., see Lawrence v. Texas. > "...applying border controls is pretty well established as due process." This is a pretty vague statement, but it not really true in any sense. The constitutionality of our current border control practices is still being vigorously litigated.
  - maxerickson 9y ago
    Which physical border search has been ruled unconstitutional?
    - nate_meurer 9y ago
      United States v. Cotterman, for example, declared a major piece of CBP's policy (forensic examination without probable cause) unconstitutional. However you seem a bit confused. You started talking about due process, but now you appear to be shifting the goalposts to 4th amendment issues. Your statement, "applying border controls is pretty well established as due process", doesn't really make sense. Due process is only one of the many thorny issues that embroil the border search exception, and the exception's constitutionality along due process lines has not been decided by the supreme court one way or the other. Perhaps I should ask you, how did you arrive at "pretty well established"? Can you provide a bit of case history?
      - maxerickson 9y ago
        Aliens are detained upon arrival and may be detained at length. If the arbitrary permitting of entry that follows that detention wasn't considered due process we wouldn't have border controls. My other response was a somewhat sarcastic reply to The constitutionality of our current border control practices is still being vigorously litigated.. It's the details that are being litigated, not the overall detention and search of foreign nationals.
- pbhjpbhj 9y ago
  I'd missed that .. so they're not State borders, they're federal, and States don't enforce those laws. Border controls wouldn't be wrong, it would be if you did unlawful searches and such that would be wrong. Out of curiosity what legal move makes the State not obliged to prosecute the Federal government under this amendment for breaking the State law? States wouldn't be able to ratify it (it seems to me: otherwise they'd be making laws allowing unequal treatment of persons), so it must be pretty early and high-level - presumably there's a blanket Feds can do as they please (wrt state laws) that makes this possible?
  - maxerickson 9y ago
    Yeah, Federal law trumps state law: https://en.wikipedia.org/wiki/Supremacy_Clause https://en.wikipedia.org/wiki/Supremacy_Clause