17 ms·
But are travelers (foreigners) part of "the people"?
by tus88 7y ago
But are travelers (foreigners) part of "the people"?
- Finnucane 7y agoIf you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)
- papln 7y agoThat's not true. the Consitution makes a distinction between 'person' and 'citizen', but is painfully ambiguous about 'People'. In context, 'people' most likely means 'citizens'. Even if you mean 'persons', not 'people', it's still largely ambiguous. https://www.senate.gov/civics/constitution_item/constitution.htm https://www.senate.gov/civics/constitution_item/constitution... 'People' have rights: > the right of the people peaceably to assemble > the right of the people to keep and bear Arms, > the right of the people to be secure in their persons, houses, papers, and effects > other [right]s retained by the people. > [powers] are reserved to the States respectively, or to the people. 'People' usually means 'voters': > chosen every second Year by the People of the several States > The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, > the people fill the vacancies by election as the legislature may direct. Government is made of 'citizens': > No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States, [etc for Senator, President] and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights: > judicial Power shall extend to all Cases ... between Citizens and ... > The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent. > All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. and makes the most interesting statement about the rights of a 'person' > 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. The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens. You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).
- wyldfire 7y agoConstitutional jurisprudence is really the sum of the text of the Constitution and the rulings held by courts. IMO the BOR should apply to all humans, anywhere in the universe, when subject to US Government jurisdiction. Let's hope courts agree.
- jcranmer 7y agoSCOTUS has generally leaned towards that interpretation, at least insofar as the rights involved are judicial in nature (e.g., due process).
- deleted 7y ago[deleted]
- duahncjak 7y agoBased on this reading, “people” elect the senate. If “people” includes travelers, does that mean travelers get to vote?
- Spooky23 7y agoThey aren’t prohibited by the constitution. In many jurisdictions, non-citizen residents can vote in local elections.
- duahncjak 7y agoInteresting, I had no idea.
- kelnos 7y agoIt depends on state/city law. In San Francisco, for example, non-citizens who have school-age kids can vote in local school board elections (as of last year).
- Rebelgecko 7y agoI'm not sure about the legal justification, but I don't think that is true in practice. For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.
- jakeogh 7y agoHave the higher courts have addressed that? The tourist example I'm expecting they _should_ since they are not breaking any law. Hm. Page 27: https://fas.org/sgp/crs/misc/R44618.pdf https://fas.org/sgp/crs/misc/R44618.pdf I'm ignoring FFL's because it's not directly relevant.
- Rebelgecko 7y agoThere was a recent court case about this (Rehaif v. U.S) where the Supreme Court made a decision about the law making it a felony to knowingly possess a gun in the US while here illegally. The prosecutor said "knowingly" just refers to the gun possession, but Rehaif's lawyer said it should refer to knowingly possessing the gun and knowing that you weren't in the country legally (Rehaif claimed that he hadn't read an email saying his student visa was revoked before he rented a gun at a shooting range). The Supreme Court said that "knowingly" referred to both the possession and the legality of one's presence. Presumably that means they're OK with a law that discriminates against some non-citizens on US soil. Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license). Even if he hadn't lost his visa he'd still be breaking a different law. It's illegal for people visiting with tourist visas to go to shooting ranges, but for tourists visiting from countries that don't require visas it's OK.
- jakeogh 7y agoLooks like it was recently (thankfully) reversed and remanded: https://ballotpedia.org/Rehaif_v._United_States https://ballotpedia.org/Rehaif_v._United_States Weird quirk with the huntling license, so that second example is a state law?
- yogenpro 7y agoExcept travelers are not "on us soil" until granted entry by customs. Customs could just deny entry if foreign travelers won't voluntarily consent to search.
- Taniwha 7y agoIf you make that argument then the customs officers are also NOT on US soil and have no authority to search phones (or do anything) at all
- wila 7y agoBut good luck explaining that to them.
- Taniwha 7y agoI agree, I think this is more an argument to be made in court
- flyGuyOnTheSly 7y agoThe last time I so much as questioned an american customs agent about something they asked me to do, I was interrogated for 2 hours about my life, job, friends, family, phone searched, car flipped through, etc. They even had 2 canine units circle my car and jump in and out of it at least 10 times each. Talk about a heavy handed approach.
- chii 7y agoSome people get off on power, and this job is as close to having power over people as some can get. As long as you know you're not actually carrying contraband or is a terrorist, just smile, comply when reasonable, and then say politely that you'd like to see their manager to file a complaint.
- atoav 7y agoWeirdly enough this isn’t much of an issue in most other parts of the world.
- BrainInAJar 7y agoat the border you are not yet on US soil. They can deny you for any reason at all
- BrainInAJar 7y agoand constitutionally speaking, permanent exile isn't considered a punishment for noncitizens, so SCOTUS can rule whatever they want is unconstitutional, it still means they're gonna do it
- miles 7y agoAs Taniwha pointed out above[0]: > If you make that argument then the customs officers are also NOT on US soil and have no authority to search phones (or do anything) at all [0] https://news.ycombinator.com/item?id=21518813 https://news.ycombinator.com/item?id=21518813
- gamblor956 7y agoEven if that's true, that simply means the search moves a few feet to US soil, where they stand on one side of the border and you stand on the other. And they don't have to let you in if you're not a US citizen or lawful resident.
- x86_64Ubuntu 7y agoDoesn't being subject to search apply regardless of citizenship status?
- gamblor956 7y agoNo, if you're a citizen or lawful resident they have to let you in...eventually. Courts have ruled that they can hold you at the border for a few hours.
- lvs 7y agoThat's completely untrue, as much as it would make sense for it to be. In fact, constitutional rights have not been applied universally to noncitizens by courts. Everything from the First Amendment onward has been limited by case law as it applies to non-US persons.
- jeffdavis 7y agoYour reasoning may be correct, but not quite so obvious to courts. For instance, foreigners' right to keep and bare arms is routinely violated, even though they are people.
- chmod775 7y ago> foreigners' right to keep and bare arms is routinely violated Their rights are violated by courts?
- vkou 7y agoMany states ban non-citizens from gun ownership. The courts have explicitly, and implicitly supported this interpretation of the second amendment. It's pretty easy to make the case that nobody knows what the U.S. Constitution actually means.
- gamblor956 7y agoQuite literally the opposite is true: https://blogs.findlaw.com/seventh_circuit/2015/09/non-citizens-have-a-right-to-bear-arms----with-1-major-catch.html https://blogs.findlaw.com/seventh_circuit/2015/09/non-citize... Court upheld the right of an illegal alien to own a firearm.
- vkou 7y ago> Applying intermediate scrutiny to the federal ban on arms possession by unauthorized aliens, the court found the law to be reasonable. Since unauthorized aliens "often live largely outside the formal system" and are "harder to trace and more likely to assume a false identity," the government may rationally limit their access to firearms. > Thus, the Seventh Circuit leaves Meza-Rodriguez with the right to bear arms, but without the ability to exorcise that right under federal law. What is the point of a theoretical right that can't be exercised in practice? Citizens of the USSR had the right to free speech, free political expression, etc.
- hannasanarion 7y agoAside from all the arguments brought up so far, there's that word "unreasonable" which the courts have historically interpreted with an "expectation of privacy" standard. You have a high expectation of privacy when you're in your house, somewhat less when you're in a car, and much less when you're entering an airport or crossing a border. In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws. If customs couldn't do this, then importation laws would have no teeth, which is clearly not the intention of the constitution, which gives Congress the explicit power to enact and enforce them. CBP argues that their smartphone and laptop searches were just an extension of that old custom, the court disagreed, ruling that a smartphone or laptop is fundamentally different from a ship's log or traveler's trunk, such that a higher expectation of privacy exists.
- swiley 7y agoIn the old days it was also routine for people to own eachother so I’m not sure how much that really means.
- Zenbit_UX 7y agoClassic whataboutism.
- hannasanarion 7y agoYeah, and there was a constitutional amendment that changed that. There is no constitutional amendment that removes the word "unreasonable" from the 4th. CBP's argument is that these searches are reasonable, given the reduced expectation of privacy.
- ineedasername 7y agoEh, I don't like these types of searches, but your argument from slavery doesn't really hold either. If it did, then any law that coexisted with slavery could be rendered equally invalid: "It was routine to imprison people for robbing banks... Yes, but it was also routine for people to own each other, so..." and so on.
- 7y ago
- gigatexal 7y agoOne of the best things about the USA here
- dreamcompiler 7y agoGood question. I was going to say "yes" but the Heller decision has made that less clear.
- jessaustin 7y agoMy understanding of Heller was that it expanded rather than contracted the rights of the people against the excessive regulation of the state? [EDIT:] great link, thanks!
- dreamcompiler 7y agoThis analysis is what I was referring to: https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_the_people_in_the_constitution.pdf https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_...
- papito 7y agoThere are cases of doing this to U.S. Citizens, in some cases, quite disturbingly, to journalists.
- strictnein 7y agoIt's no more or less disturbing for journalists to be subjected to this. They're not some special class of protected people.
- papito 7y agoTheir phones can expose sources that depend on discretion, and it's not farfetched for some MAGA TSA agent to ratf--k a journalist.
- mattr47 7y agoThis has being going on well before the current presidential administration. Try not to get triggered next time.
- vuln 7y agoTry again. https://www.forbes.com/sites/jennifergranick/2014/03/20/obama-press-attacks-degrade-the-first-amendment-in-the-name-of-security/#33ae58a74f6f https://www.forbes.com/sites/jennifergranick/2014/03/20/obam... https://www.theguardian.com/commentisfree/2013/oct/10/cpi-report-press-freedoms-obama https://www.theguardian.com/commentisfree/2013/oct/10/cpi-re... https://www.motherjones.com/politics/2012/06/obamas-whistleblowers-stuxnet-leaks-drones/ https://www.motherjones.com/politics/2012/06/obamas-whistleb... https://www.businessinsider.com/james-risen-case-obama-journalism-press-freedom-2014-8 https://www.businessinsider.com/james-risen-case-obama-journ... https://www.salon.com/2012/03/14/obamas_personal_role_in_a_journalists_imprisonment/ https://www.salon.com/2012/03/14/obamas_personal_role_in_a_j...
- lonelappde 7y agoOn the one hand, it's extra bad because searching a journalist leads to an additional violation: freedom on the press. On th other hand, we should not think of 1A rights as rights that only specialists or professionals need. (Much like we shouldn't think of police as relieving civilians of their duty to help maintain law and order and safety. Police augment and assist citizens, as public servants.)
- hangonhn 7y agoThat's an interesting question. It's not restricted to only citizens (so applies to immigrants, etc.) but may not extend as travelers who are passing through or has no real connection to the country. Ref: US vs. Verdugo-Urquidez
- baddox 7y agoIt’s a bummer there is still so much serious political discussion about which people count as people.
- EpicEng 7y agoThat's a silly (mis)characterization of what this is. Some rights are only afforded to the citizenry, and that is not inherently evil and is often the only reasonable approach. Other rights are afforded to everyone. The discussion centers around teasing out what the Constitution means when it uses person/people.
- baddox 7y agoI don’t think it’s silly to suggest that maybe all humans should have the same protections against their rights being violated.
- magduf 7y agoNot everyone gets the same rights. That's why we have the word "citizen", and why citizens get different legal status. One of those rights is the right to vote. Are you saying you think anyone should be able to vote in the elections of whatever country they want? That seems pretty silly.
- baddox 7y agoNo, I don’t think everyone ought to have the right to enter my house at night time either, but my point does not collapse to such absurd suggestions. I was, of course, referring to the phrase “the people” in the text of the fourth amendment. I hope I don’t sound too silly suggesting that the right to not have property searched and seized unreasonably is not something that ought to depend on which country you were born or have gained citizenship in.
- magduf 7y agoI do agree, but that's not what you wrote before. You wrote that "all humans should have the same protections against their rights being violated", which implies you think everyone should have the same rights. This clearly doesn't make sense, as I pointed out about voting rights. The bottom line is, not everyone has the same rights. Citizens of any country have more rights than non-citizens; there's nothing abnormal about this. You can argue that certain rights should extend to everyone (and I would agree), but this argument seems to have some disagreement about whether unreasonable-search-and-seizure is a right that should only be afforded to citizens or not, and I'm just pointing out that non-citizens don't get all the same rights as citizens.
- abathur 7y agoWhile this is very relevant in a broad sense, it isn't at matter in this case. The plaintiffs are 10 U.S. citizens and one lawful permanent resident.
- kpU8efre7r 7y agoYes
- thinkloop 7y agoIt's unfortunate that this is a reasonable question. I've been surprised to learn how conditional being treated like a human being really is (location, citizenship, etc.). It would be my preference for my country to treat all people kindly, fairly, equally.
- bendbro 7y agoIf non-citizens are treated perfectly equally to citizens, what is the point in having a distinction between citizens and non-citizens?
- babypuncher 7y agoI would argue that any individual deserves most or all rights outlined in the Bill of Rights, regardless of citizenship or geographic location. These are fundamental human rights. I'm aware this is not how the constitution is written, it's just my opinion.
- paulddraper 7y agoSome of the Bill of Rights are fundamental human rights, like right to free speach and right to bear arms. Others are not, like the Tenth Amendment. The 4th Amendment is probably closer to the first category rather than the second.
- dragonwriter 7y ago> But are travelers (foreigners) International travelers entering the US (who were subjected to the policy) are not all foreigners. > part of "the people"? Yes, "the people" in the Fourth Amendment (and most of the rest of the Constitution) are the people subject to the authority of the United States government, which is basically everyone within US territory, however transitorily, and not exempt from US authority by treaty (e.g., diplomats, etc., are excluded.)
- jdeisenberg 7y agoYes. The Constitution is very careful in its use of "people" (or "person") and "citizens".