Whose Rights Are They Anyway?
The Facts on the Ground
-The Founders fought a heated battle for the inclusion of the first ten amendments (The Bill of Rights) into the Constitution at it's inception.
-Over the past 2 centuries rights have expanded and contracted as times and social mores have changed
-With the detainees at Guantanamo Bay, and the controversy over government services supplied to undocumented workers the scope of these rights has been called into question
-The Founders never did define, constitutionally, who is entitled to said rights.
Overview
The rights defined in the Bill of Rights are in many cases well known (Freedom of the press, religion, and speech) and more obscure (not quartering soldiers, guarantee of states' rights). They have evolved (equal protection under the law, protection of individual liberty, privacy) and devolved (separate but equal, right of return of slaves) as the Supreme Court has seen fit over the span of US history. What has never been defined, in any constitutional sense is to who these rights apply. With the current controversies regarding the detainees at Guantanamo Bay, and government services rendered to undocumented workers, there has been a renewed interest in defining who should benefit from the ideals of the Bill of Rights.
Arguably, if we stand by the principle that these rights are God-given, or natural law, then all should be protected by them - every citizen of the world. In practicality, this is not possible or even prudent. Many people the world over live in oppression, and with severely curtailed rights. For the United States to go to war to grant rights to all would involve the country in a never ending war against a majority of the world. America hesitates to go to war when one of it's own citizens is held with no rights in a foreign country. These rights that we hold precious are precious for a reason. The reason is that among the societies of man, very few recognize the concept of the dignity of the individual, and the idea of individual liberty. The United States represents the first modern government to adopt those concepts as its foundation.
Rights are traditionally associated with countries or societies. A look at the historical application of those rights may shed some light for the American experience. When we think of democracy, most people in the western world see ancient Greece as it's pillar. Ancient Greece was an amalgam of many city/states. As a citizen, you would be a citizen of Athens, or of Sparta, or of Troy. Within the city/state of your citizenship, you were afforded the rights granted by the government to your class.
Landowners had the most similar to our impression as to what full rights look like. Non-landowning citizens received a more limited set of rights, and the full protection of the city/state. Slaves and non citizens had no formal rights. Other city/states would or would not respect your rights as a citizen of your city state depending in the state of relations between the two societies. War between the city/states was common until their full union under Alexander the Great.
Moving on to the next great western culture Rome made some advances. Roman citizens had full rights according to class. There were traditionally 2 classes - the patrician (landowning, wealthy and powerful) and plebeian (everyone else). Again slaves and non-Roman citizens had no formal rights. The advances made were that Roman citizenship could be bestowed upon non-Romans.
This occurred 3 ways - by the birth of a child between a non-Roman and a Roman, by the decree of a Roman magistrate or governor, or by the decree of Caesar. On the ascension of Julius Caesar (born a plebeian) to the throne of Rome, and additional right was granted to all citizens of Rome - the right to appeal directly to Caesar in any cause.
After the fall of Rome, the idea of individual rights and liberty fell by the wayside. Even the privileged and landowners were subject to the whims of the monarch in charge. This was forcibly changed by an armed rebellion of landowners in England which gave us the Magna Carta - the first bill of rights authorized by a King (albeit by knifepoint). This allowed a certain level of basic rights to the landowners, provided they remained loyal to the designated monarch. It provided no rights to the common people, though what came to be known as "common law" emerged.
Through the Renaissance, the Protestant Reformation and the Enlightenment, the concept of individual dignity and liberty grew - primarily as a doctrine of religion. These new religious doctrines took exception to the idea that a person needed a mediator to God in the form of a priest, and encouraged direct prayer and confession. The reasoning followed that if a man has dignity before God, should he not also have dignity among men. With dignity comes the expectation of respect of the individual, which after generations was formulated into law in western civilizations. The first nation founded on this concept was the United States.
A look at the history of rights in America shows that they have never applied to all. The initial application of rights went to those eligible to vote - at the time white male landowners over the age of 25. Within fairly short order this was extended to all free men and their families (with certain exceptions - such as the right to vote). Over the years various groups have been folded in by race, gender or other classification to having full rights apply to them. Never has it been said that anybody gets automatic rights, though the tradition has held that at least in legal proceedings, all persons held under civil authority are entitled to the legal protections of the Bill of Rights.
Which brings us to the riddle of the Gitmo detainees, and the undocumented workers living within the United States. Do the rights afforded to American citizens also apply to persons captured in active combat against the United States?
Under the traditions agreed to in the Geneva Conventions the answer is no - prisoners captured during hostilities can be held indefinitely without charge as long as they are treated humanely. Do the Geneva Conventions apply? According to the Bush Administration - no, as the combatants are not members of any recognized national army. This is the loophole that was grabbed to allow the "enhanced interrogation procedures" still in debate.
What about the American Taliban, John Walker Lindh? As he is an American citizen, even if he is engaged in treasonous behavior, the Bill of Rights applies. What rights apply to the millions of people living here in violation of US law? In addition to the legal protections that they are getting, are they entitled to government services, paid for by the taxpayers, even though their presence here is in direct violation of the law? What of John Demjanjuk - an 89 year-old naturalized citizen of the US, accused of being a Nazi war criminal recently deported to Germany for prosecution? Is he entitled to those protections?
Common Sense Dictates
A case by case granting of rights is a subjective and administrative nightmare. A prime example of this is the backlog of asylum cases being heard by Immigration and Customs Enforcement (ICE) where a he said / she said argument is provided against an official statement of a home government and a mid-level bureaucrat gets to make a life and death decision based on his feelings and a flip of a coin.
We have 200 detainees sitting in Gtimo limbo that no other country wants, that our legal system is ill-equipped to try, and out of which 60 are too dangerous to consider releasing anywhere.
It is the opinion of TPP that there should be a Constitutional Amendment defining the scope of who can be reasonably expected to have the full protections of the United States. Whether that includes everyone within our borders, or defined as citizen (both born and naturalized) and those legally residing within our borders will be the subject matter of the debate. The debate has proven necessary, if only to clarify the rules to all.
RLB
Categories: Rights and Responsibilities, Constitutional Issues
Tags: Framers intent civic responsibility
Wow, an honor to be first among many. In an ideal world these rights would be applies universally. Unfortunately, this is not an ideal world. That said, all rights must apply to US citizens - whether Lindh or Padilla (held as terrorists), the Rosenbergs (famous for their H-bomb indiscretions), or Lt. Calley at Mai-Lai. US rights ALWAYS apply to US citizens. The non-citizen thing is a bit dicey - especially if the subject of the legal action is trying to crumble the government. I think we should afford that person normal legal protections, but committing an act of war against the US is more serious than commission of what is normally considered a "crime". In the case of a crime, there is a victim - in the case of terrorism, or treason, we are all victims. A different deck of cards may need different rules.
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The argument being raised provides a great opportunity to nativists and other anti-immigrant types to restrict freedoms to groups that they aren't fond of. The two groups cited - Guantanamo detainees and undocumented workers automatically brings to mind a negative group stereotype, rather than an understanding of the dignity of the individual. It is only right that all people on US controlled territory, or under US jurisdiction be accorded the full rights of a native born Kansan. What happens outside of US control is beyond our reach to control, but where we can control things, our highest ideals should be the standard we go by.
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There is a difference between rights and benefits that gets muddied here. Rights are protections against government tyranny, and need to apply to all who are being brought before the government on any matter. These rights, are with very strict exceptions, non-negotiable and apply to all persons. Benefits are basically government give aways for whatever reason (social security, welfare, Medicaid)and should be reserved for people who are citizens, or those who are residing here with the permission of the US government. Every terrorist or illegal alien deserves his day in court with full rights. Neither is entitled to a nickel of government largess.
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It's a fine hair to split, but I'd have to come down with tripledindc on this one. If we go back to the Founders' definition, a right is something immutable and God given. Those apply to all, and should apply to anyone facing our legal system. A benefit is something taxpayer funded, and to be used for public purpose among the citizens and legal residents. There is no obligation on the part of the US to extend benefits to it's enemies, or to those in violation of US law. There's your common sense.
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Gotta disagree with you on this slaterj and tripledindc. How is the society best served by having an illegal underground, cut off from food aid, medical care and education? That is exactly the situation in France where every few months Muslim men riot and burn cars in protest. Better we should care for who we have here that tear apart the social fabric of American society.
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That's just plain wrong. The rioting Muslim youths are in France on "guest worker" visas (see Bush 43 immigration reform). They are in France legally, and are only granted limited rights and benefits. It's France looking for labor on the cheap, and paying the price by creating an economic underclass. In the US the immigrants are here illegally. The law states that both the immigrant and any employer are breaking the law. This is designed to either get them to follow the law, or to make their home country look better to them. There are no implied rights or benefits, so there is nothing to be upset about. France dangles a half-citizenship which is absolutely degrading and wonders why they have riots. Legal immigration is to be encouraged, illegal discouraged, and half measures are just destructive. That said - even illegal immigrants deserve full protection under the law should they be faced with prosecution.
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crackerjack is right on the France situation, and that's why setting up a "guest worker" status is a bad idea here. It should be full rights or no rights, not some 2nd class status. that will only breed resentment. On the rights issue I have to come down with full rights for citizens (including Lindh and Demjanjuk), full legal protections for anyone arrested on US soil, and benefits should be reserved for those who are citizens or here with the consent of the US government. Those who are here outside of the law, should not share the benefits of legal residents contributing to the good of the country, or the protections that the government has granted to it's less fortunate members. Sorry, but you need to be a member of the club to enjoy the benefits.
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The proposed Constitutional definition has been outlined here several times. The "Bill of Rights" protections apply to all people who fall within the jurisdiction of the laws of the United States. No exceptions. Benefits afforded by the government (social security, medicaid, unemployment, PELL grants) should be limited to citizens and legal residents. Also no exceptions. The government is not a charity.
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As is a lot of what the Founders left us, the Constitution is specific on rights, but very vague on application of them. The revolution was fought on the basis of individual liberty taking precedence over the state. To me that means any individual. The benefits discussion is a red herring to distract us from rights being denied every day - and not only to terrorist suspects or illegal aliens. Our individual liberties are attacked every day in the form of "social laws" with regard to matters of personal conscience or identity. Just look to the upholding of the gay marriage ban in CA, creationism being promoted as science, and the huge prison population of non-violent drug offenders. Our rights are constantly under attack, but we stay distracted on silly stuff. Ignorance is bliss.
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I'm going to have to go with the tightest possible way on this. America has been way too generous, and continually gets slapped in the face and abused by not only our enemies, but our supposed allies as well. If it's not the terrorist nutjobs holding our oil in the balance, or the aliens flooding our shores from every craphole on the planet, it's the French or Germans getting pissy with us. Screw em all. American rights are for American citizens. The rest of you can hide under the protections of your own countries.
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I just want to speak to the Gitmo detainee situation. These are not prisoners of the legal system. They committed no crime against the civilians of the United States. They were picked up on the battlefield, or in training facilities engaged in either acts of war against the United Statesw, or preparing to carry out acts of war. This has always fallen under the jurisdiction of the US military - from the revolutionary war to this current engagement. Civilian authority has no jurisdiction, and would not be capable of handling the cases with the discretion required to keep additional American lives safe. I have no problem with military courts. Every day they prosecute service members for offenses ranging from lies through assault and murder, and if it arises, treason. The hearings are ordered and fair, though not burdened with some of the niceties of the civilian courts. These are not criminals "suspected" of bad things, but enemy combatants caught in the act of making war on US. No one is getting railroaded - military tradition does not allow it. Justice is served confidently by this means. Bestowing full civilian rights on these terrorists goes against common sense and a long tradition of dealing with those who take up arms against the US. If the system wasn't just, I'd be the first in line to change it, but the system works very well.
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I get a little nervous when we start rationing the Bill of Rights. I am sure that there are legal arguments to be made on both sides about the Guantanamo detainees. I'm also sure someone well above my pat grade will sort it out. I look to the tradition that this is a country of laws, not men. If that is so then all men - even "enemy combatants" are entitled to equal protection. I'm no screaming liberal, but that just seems to be the position of principle and honor. Maybe the terrorists will use that against us, but is that any reason to sink to their level.
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Couldn't have said it better. Double amen here.
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Are we speaking about the curtailment of rights during war or emergency, or a permanent exclusion of rights for some? In war and emergency, some civil liberties must be curtailed out of security concerns, or to allow the government to act in a responsible fashion. These times are temporary, and normally are legislated - such as the Patriot Act. There are many examples similar to this in American history. Making a permanent decision to exclude groups or individuals from the rights we hold to be universal is a very slippery slope to explore. Jefferson and Franklin both warned that all government seeks to increase its own power at the expense of individual liberty - while calling it "security". We have laws and a legal system to determine the stripping of rights (incarceration, execution) from an individual. The system is not perfect, but it works. If the system is REALLY not suitable for the Guantanamo detainees, a similar system needs to be created, explained and put in place. The military tribunals were put in place, but never proerly explained. An explanation would do a world of good. Rigths are rights, and not optional. Benefits are not rights, and can be rationed.
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With the article on the current Supreme Court vacancy just posted, I think that really speaks to this issue as well. Wherever Constitutional issues come into dispute, they wind up in front of 9 black robes who were unelected to office, serve as long as they like, and are beholden to no one except their own conscience (which is rare enough in public life). If the Founders really were anti monarchy, and for the will of the people, how do thy make a branch of the government a knigship split 9 ways?
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