Revisiting the Constitution and non-citizens

The time has come to once again take on this little nugget:

The Constitution applies only to AMERICAN CITIZENS!

Recently I got into an online discussion with a person in Montana about this. Another person was involved momentarily as well and made this little pot-shot argument:

Those here that are citizens of another country have no rights. If they had them, they’d (non-citizen legal residents) be allowed to vote.

This assertion shows some the hypocrisy with conservatives. They say that rights are God-given, but I guess God only gives you those rights when you actually become a citizen, at least according to this – if I may be so bold – pile of shit. And the person who made the above comment seems to believe that rights are all or nothing without realizing that there are, in fact, two classes of rights: natural and legal. Not all legal rights are natural rights, but all natural rights should be legally-protected rights.

Now I’ve said time and again that the legal protections of the Constitution do not apply exclusively to citizens because the language of the Constitution does not make such a limitation on its applicability. Typically when I say this, the person with whom I’m arguing brings the preamble of the Constitution into the fray:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The person from Montana did just this while also saying the Constitution must be taken in whole cloth. Even taken in whole cloth, however, the protections of the Constitution are still not limited to just citizens. The word person is used very specifically in the Constitution to make it clear that its protections are not limited to citizens exclusively. The word "citizen" appears in the Constitution with regard to the following (feel free to verify this for yourself):

1. Specifying the requirements for office for the House of Representatives¹Article I, Section 2 – "No Person shall be a Representative who shall not have…been seven Years a Citizen of the United States…", Senate²Article I, Section 3 – "No Person shall be a Senator who shall not have…been nine Years a Citizen of the United States…", and President³Article II, Section 1 – "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President…"
2. Specifying types of cases that shall be within the scope of Federal court jurisdiction⁴Article III, Section 1 – "The judicial Power shall extend…to Controversies…between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." and specifically denying such jurisdiction to two types of cases⁵Eleventh Amendment – "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
3. the Privileges and Immunities Clause⁶Article IV, Section 2 – "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." and its clarification⁷Fourteenth Amendment, Section 1 – "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
4. defining who shall be considered a citizen⁸Fourteenth Amendment, Section 1 – "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."
5. penalizing States attempting to deny the right to vote to any citizen within its jurisdiction⁹Fourteenth Amendment, Section 2 – "But when the right to vote…is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
6. prohibition of discrimination on the right to vote based on race¹⁰Fifteenth Amendment – "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude"
7. prohibition of discrimination on the right to vote based on sex¹¹Nineteenth Amendment – "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."
8. prohibition of poll taxes¹²Twenty-Fourth Amendment – "The right of citizens of the United States to vote in any [Federal primary or election] shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax."
9. setting the guaranteed voting age to 18¹³Twenty-Sixth Amendment – "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

Out of the Preamble, Seven Articles of the main Constitution, and Twenty-Seven total Amendments, the word "citizen" in one form or another is specified in these relative very few number of places. And if you do a search of the text of the Constitution, the places where the word "citizen" is specifically and explicitly lacking are the clauses and sections restricting the Federal and State governments with regard to interactions with all persons within said jurisdiction. These include, but are not limited to:

• privilege of writ of habeas corpus cannot be suspended except in certain circumstances by the Federal government¹⁴Article I, Section 9 – "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
• prohibition of bills of attainder and ex post facto laws at the Federal¹⁵Article I, Section 9 – "No Bill of Attainder or ex post facto Law shall be passed." and State¹⁶Article I, Section 10 – "No State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." levels
• jurisdiction of the Federal courts¹⁷Article III, Section 2 – "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority"
• requirement of a jury trial for all crimes¹⁸Article III, Section 2 – "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed" ¹⁹Sixth Amendment – "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed" unless otherwise waived
• protection of the natural rights of religion, speech and peaceful assembly²⁰First Amendment – "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
• requirement of due process before a person may be deprived of any liberties²¹Fifth Amendment – "No person shall…be deprived of life, liberty, or property, without due process of law…" ²²Fourteenth Amendment, Section 2 – "…nor shall any State deprive any person of life, liberty, or property, without due process of law…"

among many others, but I’m not going to write a book on the topic right now.

Basically what I’m getting at is simply this: as I have said previously on this same blog and in other venues, the government is indiscriminately restrained when it comes to the interaction of the government and any person subject to that government’s jurisdiction. For a person to not have the Constitution’s protection of their natural rights, such person would have to be immune from the jurisdiction of the United States. Not even those with diplomatic immunity are immune from the full jurisdiction of the United States and the States therein when they are within the borders of the United States and any State therein.

I believe the assertion discussed herein first manifested in force only over the last decade, in the time since the attacks of September 11, 2001. Those attacks brought Islam to the forefront of the minds of people. It did not take long before an association was made between Muslims and terrorists that grew to the point where people started labeling all Muslims as terrorist material. From there, it was likely soon realized that a good portion of Muslims in this country are immigrants not yet naturalized, and there are a lot of Christians who want to deny the freedom of religion to Muslims in any way possible, even going so far as to assert that the protection of freedom of religion enshrined in the First Amendment applies only to Christians and that the religious liberty Muslims currently have is merely a "privilege":

The First Amendment was written by the Founders to protect the free exercise of Christianity…Islam has no fundamental First Amendment claims, for the simple reason that it was not written to protect the religion of Islam. Islam is entitled only to the religious liberty we extend to it out of courtesy…From a constitutional point of view, Muslims have no First Amendment right to build mosques in America. They have that privilege at the moment, but it is a privilege that can be revoked if, as is in fact the case, Islam is a totalitarian ideology dedicated to the destruction of the United States.²³Fischer, Bryan. (March 23, 2011). "Islam and the First Amendment: privileges but not rights". On the blog "Rightly Concerned" hosted by the American Family Association.

The assertion that the protections of religious liberty apply only to Christians is gaining a lot of traction in the United States and it is a very, very dangerous idea. The desire for this point of view is rising in the face of two opponents seeing rising numbers: Islam and atheism.

In the case of the former, they see within Islam a "civil code" that allegedly must be countered at all costs: Sharia law of the Qur’an. The one thing rather intriguing about this is idea is that Christians are calling for countering one particular religion because of the laws stated in its holy book while not seeing their own hypocrisy: the Mosaic laws of the Bible, basically the Christian equivalent of Sharia. And the abrogation argument given by many Christians does not hold water as no place in the Bible did Jesus say he was overturning or vacating the Mosaic law.

In short the argument goes something like this: Muslims must not be allowed to implement Sharia into the civil code because it is a false religion and we are instead supposed to follow and implement into the civil code the Mosaic laws of the Bible – i.e. "God’s law".

The language of the First Amendment, applicable to the States by way of the incorporation doctrine, says that the free expression of religion shall not be prohibited. The language is not restricted to mean that only religious expressions applicable to Christianity shall not be prohibited, meaning that expressions applicable to any religion, including to deny or counter religion, is protected by the First Amendment. And no amount of redefining of a particular religion away from being called a religion will cause its expression to lose the protection of the First Amendment.

The Declaration of Independence asserts that there exist rights held by all persons:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

As such no amount of assertion that the Constitution does not provide protection of these rights to all persons subject to its jurisdiction will make that fact. A plain reading of the language of the Constitution makes it clear that it protects the rights of all persons who become subject to its jurisdiction.

"We the People of the United States" have stated that the Federal government and the governments of the States shall not deny to any person (not just citizens, but every person) the equal protection of the laws and shall not deprive any person of liberty without due process of law, and that included in those liberties that shall not be denied are the natural rights possessed by every person, as asserted by the Declaration of Independence.