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.
- - Preamble United States Constitution, ratified 1788
This is arguably one of the greatest documents written in human history. It was radical for its time in the granting of a diversity of human rights to all classes, though it was limited to white males. These rights have been extended over the last two centuries to include all citizens of the United States regardless of race, religion or sex. Today the citizenry of the United States take these rights for granted. While the founding fathers did limit who they granted rights to I argue that they intended these rights to extent to all men in or outside of the United States, though they knew they could only enforce these rights within their country’s borders. Thus, United States Constitutional rights should be extended to all people when they have cause to deal with the US justice system.
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. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
- - Paragraph 2 The Declaration of Independence, adopted 1776
The Declaration of Independence was written by the founding fathers twelve years before the Constitution was ratified. It clearly states, “all men are created equal, that they are endowed by their Creator with certain unalienable rights”. “Men” as stated in the Declaration of Independence, I assert, includes all people regardless of color, genders, religions and nationalities per the redefinition of Constitutional Law protections over the last two centuries. All human beings have unalienable rights, and among these are life, liberty and the pursuit of happiness.
So why in the United States today, is our judicial system excluding people from protections under the Constitution?
There are many political, social and fear-based reasons for the current standing of non-documented and other political detainees to be outside of the protections of the Constitution. Most reasoning comes down to budgetary concerns and protectionist mentalities as well as a combination of conservative federal judges and limited court challenges from detainees.
Currently the United States is engaged in one official armed conflict in Afghanistan, however we have troops in over 150 countries, in which the United States can detain people as enemy combatants in the War on Terror. Normally, as an enemy combatant/prisoner of war a person’s human rights are protected under the Geneva Convention, however an enemy combatant is defined as having been apprehended on a battlefield, during the course of a war. This definition may or may not apply to combatants in Afghanistan, since the United States hasn’t declared “war” in Afghanistan. It most definitely does not apply to individuals turned over to the military by foreign governments or people swept up in raids in a country where there is no “open hostilities”. This allows the US government to define detainees as outside of protections of the Geneva Convention. Since they are also rarely US citizens they do not qualify to have rights under the United States Constitution.
Most of these individuals are held on indefinite detainment. Without the protections of the Geneva Convention or the United States Constitution they have no right to even know the charges by which they are being detained.
There are also many detainees who are being held for violations of their immigrations status, these people may or may not have been picked up in the United States. Immigration processes disregard any Constitutional rights of these individuals based on the fact that the person is not a citizen of the United States. People in immigration detention face numerous obstacles to defending their due process and human rights, including inadequate access to lawyers and medical care. Do we really want to define that citizenship is the only basis to exercise the rights granted by the United States Constitution?
Mistakes in immigration arrests are made on a regular basis. Does it really matter if that is a small percentage? How many people arrested for immigration violations are white? Or rich? There are many inequalities and abuses in the system that would be rectified by the acknowledgement of detainee’s human rights under the Constitution.
Parsing human rights as to US citizens v non-citizens is not only demeaning of everyone's humanity, it is based in an imperialist paternalistic mindset that the western world is "superior" to those deemed outside of the west. Not only is this problematic and outdated but creates the disingenuous state of mind that torture is acceptable because these aren’t “our people”. The delineation of citizenship is random lines drawn on a map; it is not a true representation of humanity or a basis for granting human rights.
What is the benefit to limiting Constitutional rights of foreign nationals?
"The Supreme Court has also held for more than a century that aliens within the United States are persons entitled to constitutional protection. That includes aliens who are unlawfully present, although recent Supreme Court dicta suggest that intensified concerns over both drugs and migrants penetrating the border may put pressure on that commitment.”
- Strangers to the Constitution: Immigrants, Borders, and Fundamental Law
Gerald L. Neuman, JD, PhD
Historically Constitutional rights were afforded to anyone living within the US, however in the past ten years with the Unites States purging on a diet of fear post 9/11, immigration has been used extensively as an excuse to interview, detain and deport suspected “terrorists” (i.e. people of Arab descent). The assumption that terrorist are strictly from outside of the United States, solidly grounded in the identity of “other”, goes against the history of terrorist attacks like the Oklahoma City Bombing, the Atlanta Olympics Bombing, and the anthrax attacks after 9/11, all perpetrated by American Citizens.
Expanding on the fear of “other” the Government has included the War on Drugs under the immigration authority, which is primarily directed at Latin American peoples who are living in the United States. This coupled with the fear mongering of immigration opponents, who decry the porous nature of our southern borders reflects in the disproportionate numbers of Latin Americans being held in the immigration deportation centers.
Part of the reading of the constitution that expands rights to non-citizens is grounded in the desire to alleviate caste-like classes from US society. I assert that in the last ten years, since 9/11, the conservative elements in our political system have been actively pushing for a caste system under the guise of national security and an ideological identification of who is “truly” a citizen/patriot. The argument that being able to curtail people’s human rights makes us safer is illogical at best and in actuality leads us down a path to fascism. Short cuts around human rights are never going to ensure our safety. Not short term suspensions or in the long run, because depriving others of their human rights damages our own personal Constitutional rights. And voiding anyone’s human rights not only damages our standing in the international community, but it should damage credibility in the US social and political spheres.
The citizens of the United States should demand their government recognize that every human being has unalienable rights, including the rights guaranteed by the Constitution regardless of where they were born. This is the only way to ensure the rights of those that cannot protect themselves. Protecting all people’s rights is the only way to truly ensure our own human rights will be respected.