4 ms·

Why do you choose to read the 5th amendment as granting protections to a class of people, instead of reading it as a declaration of prohibitions to government a

Why do you choose to read the 5th amendment as granting protections to a class of people, instead of reading it as a declaration of prohibitions to government action?

rayiner 14y ago
I'm reading it as a prohibition of government action with respect to a certain class of people. Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). Second, because that's how it's always been interpreted. You can trace much of the language of the fifth amendment back to the Magna Carta, which was an enumeration of limitations on the power of the English King with respect to the free men of England. More generally, at the time of the founding it was taken for granted that the Constitution only applied to American soil. Most of the extra-territorial application of the Constitution has been the result of subsequent legal development.
- ataggart 14y ago
  >Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply. >at the time of the founding it was taken for granted that the Constitution only applied to American soil. The Constitution makes no mention of geography. Instead it is entirely a collection of MAYs, SHALLs, and SHALL NOTs directed at the government. >Most of the extra-territorial application of the Constitution... ...is predicated on notions of geographical distinction wholly absent from the Constitution.
  - rayiner 14y ago
    The Constitution doesn't mention geography, that's true. That could either be because the framers intended it to apply to everyone everywhere, or because they thought it was obvious it would only apply to Americans in America. Luckily, the Constitution is not a disembodied bit of text. We have copious context to use to evaluate the significance of the lack of geographical distinctions in the Constitution. The English legal tradition, which the Constitution is a product of, is highly territorial. English law applied to Englishmen in England. Thus, it is reasonable to conclude that American law, including the Constitution, was intended to apply to Americans in America. Scalia's dissent in Boumediene has a good discussion of the application of Constitutional rights to non-citizens: http://www.law.cornell.edu/supct/html/06-1195.ZD1.html http://www.law.cornell.edu/supct/html/06-1195.ZD1.html. I'd skip to Section II to get past the political rant.
    - cma 14y ago
      It is obviously more nuanced than you make it seem. Do you really think it would be constitutional for the government to target a specific religion or race with drone strikes as soon as any of the targeted group were to go on vacation in e.g. the Bahamas? I don't necessarily disagree with your conclusion with regard to the current drone strikes, but I think your rational/analysis is deeply flawed and there certainly isn't a complete trashing of the constitution as soon as a citizen leaves our borders.
      - deleted 14y ago
        [deleted]
      - AutoCorrect 14y ago
        citizenship doesn't end at the border. If the government feels it can prosecute you for crimes committed outside then it is limited by the same laws.
  - pdonis 14y ago
    notions of geographical distinction wholly absent from the Constitution. You're kidding, right? The Constitution says, right at the start, that it is for the United States of America.
  - rhizome 14y ago
    I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply. You're looking at it wrong. It's that the text does not allow for a certain class to be excluded, which is what the Obama Administration is doing with respect to "military-age males."
- pdonis 14y ago
  it was taken for granted that the Constitution only applied to American soil No, it wasn't. The Constitution explicitly says that it's a Constitution for the United States of America.

Why do you choose to read the 5th amendment as granting protections to a class of people, instead of reading it as a declaration of prohibitions to government action?

rayiner 14y ago

I'm reading it as a prohibition of government action with respect to a certain class of people. Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). Second, because that's how it's always been interpreted. You can trace much of the language of the fifth amendment back to the Magna Carta, which was an enumeration of limitations on the power of the English King with respect to the free men of England. More generally, at the time of the founding it was taken for granted that the Constitution only applied to American soil. Most of the extra-territorial application of the Constitution has been the result of subsequent legal development.

ataggart 14y ago
>Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply. >at the time of the founding it was taken for granted that the Constitution only applied to American soil. The Constitution makes no mention of geography. Instead it is entirely a collection of MAYs, SHALLs, and SHALL NOTs directed at the government. >Most of the extra-territorial application of the Constitution... ...is predicated on notions of geographical distinction wholly absent from the Constitution.
- rayiner 14y ago
  The Constitution doesn't mention geography, that's true. That could either be because the framers intended it to apply to everyone everywhere, or because they thought it was obvious it would only apply to Americans in America. Luckily, the Constitution is not a disembodied bit of text. We have copious context to use to evaluate the significance of the lack of geographical distinctions in the Constitution. The English legal tradition, which the Constitution is a product of, is highly territorial. English law applied to Englishmen in England. Thus, it is reasonable to conclude that American law, including the Constitution, was intended to apply to Americans in America. Scalia's dissent in Boumediene has a good discussion of the application of Constitutional rights to non-citizens: http://www.law.cornell.edu/supct/html/06-1195.ZD1.html http://www.law.cornell.edu/supct/html/06-1195.ZD1.html. I'd skip to Section II to get past the political rant.
  - cma 14y ago
    It is obviously more nuanced than you make it seem. Do you really think it would be constitutional for the government to target a specific religion or race with drone strikes as soon as any of the targeted group were to go on vacation in e.g. the Bahamas? I don't necessarily disagree with your conclusion with regard to the current drone strikes, but I think your rational/analysis is deeply flawed and there certainly isn't a complete trashing of the constitution as soon as a citizen leaves our borders.
    - deleted 14y ago
      [deleted]
    - AutoCorrect 14y ago
      citizenship doesn't end at the border. If the government feels it can prosecute you for crimes committed outside then it is limited by the same laws.
- pdonis 14y ago
  notions of geographical distinction wholly absent from the Constitution. You're kidding, right? The Constitution says, right at the start, that it is for the United States of America.
- rhizome 14y ago
  I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply. You're looking at it wrong. It's that the text does not allow for a certain class to be excluded, which is what the Obama Administration is doing with respect to "military-age males."
pdonis 14y ago
it was taken for granted that the Constitution only applied to American soil No, it wasn't. The Constitution explicitly says that it's a Constitution for the United States of America.