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I'm not an expert, but I believe it is the result of the structure of the law itself. The American constitution does not grant any rights to the people, becaus
by abtinf 8y ago
I'm not an expert, but I believe it is the result of the structure of the law itself.
The American constitution does not grant any rights to the people, because our rights result from the nature of human existence and logically precede any government authority. The law recognizes rights, not grant them--they are "inalienable". Without rights, we wouldn't have the authority to form a constitution in the first place--by what right would we enter into such an agreement? Instead, the American constitution is designed to constrain the government by enumerating a limited set of government powers and no others. The Bill of Rights amendments do not grant any rights, they simply further restrict government power--just look at their wording: "Congress shall make no law...".
The fourth amendment is a limit on government power, not a grant of rights: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." The amendment doesn't say "We grant the people the right to be free from unreasonable searches", it says people already have this right and the government must not violate it. Convicted criminals have violated the rights of others, and so they lose their own rights. Since they don't have rights, no violation is possible.
This is a much stronger type of individual protection than any other body of law. If the government does something you don't like, the burden is on the government to show it has the authority to do that thing. It doesn't need special case applications for non-citizens, because the rights of every individual person on American soil precede the law itself. And there is an open question about the degree to which they apply globally to non-citizens--every individual has the right to life, liberty, and property, and the government can't just go seize it (except under a declaration of war).
- freeflight 8y ago> This is a much stronger type of individual protection than any other body of law. In theory, but apparently not in practice? Because the practice seems to work out like this: You are protected from government overreach until you are not anymore, by, for example, being a convicted criminal or maybe even a "terrorist". That criminal lost his protections, he's now suddenly something like a de-facto "lesser citizen". Now you can argue he's to blame for that and thus it's totally okay. But at the same time, it shows that the US approach does not actually protect the individual that well, because those protections seem to be rather easy to be undermined, as in the end, it will always be the government that defines and decides who should be considered a criminal/unworthy of those protections? The above scenario would be absolutely unthinkable in Germany. If the German government would attempt something like that, it would run into very clear boundaries set by the Grundgesetz, which also guarantees all the rights from the UDHR [0] and you can't simply deny somebody their human rights, they are after all still human, regardless of what crimes they committed. Sure, the German government also regularly tries to find ways around that, but there is a deep understanding among the German society that a lot of "rights" and "protections" always apply naturally, without exceptions, because exceptions would hollow out their whole purpose of being "undeniable human rights" in the first place. Denying people these rights would be the equivalent of declaring them "not human anymore". [0] https://en.wikipedia.org/wiki/Human_rights_in_Germany#Law https://en.wikipedia.org/wiki/Human_rights_in_Germany#Law