TortFeasor
Registered Users (C)
The following is a very academic discussion. It may be hazardous to your health.
This is written in response to comments made in this forum asserting that " Non-citizen rights are not guaranteed by the U.S. Constitution" and "Nor is the right to travel stated on the Constitution."
I. Background:
When we are referring about the constitutional basis for our rights, we are pointing to any of the following: (i) the written Constitution of the United States (signed in 1787), (ii) the Bill of Rights to the Constitution (the first ten amendments enacted in 1791 and the Fourteenth Amendment that made the constitutional rights binding on the states) and (iii) most essentially, how the Constitution has been interpreted and enforced by the United States Supreme Court. Since the great case of Marbury v. Madison (1803), our Supreme Court has been the final authority in saying what the Constitution is and is not.
II. Non-citizens have rights guaranteed by the U.S. Constitution:
Time and time again, the Supreme Court has ruled on this issue. The Fifth Amendment to the Constitution provides that NO PERSON shall be deprived of life, liberty, or property without due process of law. The Fourteenth Amendment restated this due process protection to ALL PERSONS by making the protection applicable to the various states. The Fourteenth Amendment also added a provision with the effect that states cannot deny the equal protection of the laws to ALL PERSONS living within their jurisdictions. This duty to afford equal protection has also been made applicable to the federal government by the Supreme Court. The written Constitution did not make a reference to citizens when granting the due process and equal protection rights, but to PERSONS. The Constitution, when it seeks to limit rights only to citizens, has made such limited grants explicitly. For example, the privileges and immunities of citizenship clause of the Constitution does not apply to us.
How did the Supreme Court enforce and extend the due process and equal protection rights under the Constitution to non-citizens like us? Few examples:
1. In Mathews v. Diaz, a 1976 case, the Supreme Court stated that the Fifth Amendment as well as the Fourteenth Amendment of the Constitution protects every one of the million of aliens within the jurisdiction of the United States from deprivation of life, liberty and property without due process of law. Even undocumented aliens fall under this protection.
2. In Plyer v. Doe, a 1982 case, the Supreme Court held that children of undocumented persons are entitled to equal protections and due process protection under the Constitution in having access to public education.
The notion that the Constitution applies to us is so basic and accepted that even Ashcroft & Co. did not and have not yet challenged that. The recent pronouncements from the Supreme Court about the detainees in Cuba is further evidence about the reach of the Constitution.
Of course, we may not have all the rights of citizenship, but as a minimum, we have access to the courts and the judicial process to enforce our due process and equal protection rights as PERSONS. This means that we might challenge not just agency inaction if we can show that the inaction violated our substantive due process (see below III) or equal protection (vis a vis other persons who face little or no restrictions in their international travels), but even challenge statutes enacted by Congress if such impair our constitutional rights. The mere fact that Congress has enacted some statute does not give it automatic constitutional validity. Statutes have been challenged and stricken when found to be in violation of the due process and equal protection rights of non-citizens.
We may not know the exact limits of our rights, but we sure will not know where that frontier is unless we act to demand, enforce and get respect for those rights from Congress or the INS.
III. There is a constitutional right to travel.
If we are looking for express statements in the Constitution to see if we have certain rights or not, then a lot of key rights afforded to us by the Constitution, such as the Miranda warning rights during arrest, reproductive rights and other privacy rights will not have been protected. Fortunately, our Constitution is kept alive (to the most part) by the Supreme Court. Under the doctrine of substantive due process, the right and freedom to inter-state travel is held to be a fundamental freedom that cannot be restricted by the government without passing what is known as strict scrutiny of the courts. See Shapiro v. Thompson, 394 US 618 (1969) and its progeny.
Unlike inter-state travel, international travel is not yet a fundamental freedom but it is still deemed to be a liberty interest protected by the due process clause. Such freedom cannot be abridged by agency action unreasonably without a rational basis to do so. Our question: is what the INS doing a reasonable and rational process to justify such intrusion into the liberty interest of us PERSONS, who have been granted such right in the Constitution? We will not know until we push for and demand a respect for that right.
IV. International standards.
THANKFUL, mentioned that the Universal Declaration of Human Rights (UDHR) is not an enforceable treaty. I agree that the UDHR is not a self-executing treaty to be enforced in the US courts. Note though that the UDHR and the UN Charter are cited in the preamble to the 1951 UN Convention relating to the Status of Refugees, as made applicable to the United States by its accession to the 1967 Protocol. Art. 28.1 of the Convention requires member states to issue to persons in our position travel documents for the purpose of international travel. I will not mind throwing in this international obligation argument as an added point in our request. The history on the status and enforceability of international treaties in US courts is at best marginal. I say we have a good foundation under the constitutional framework, without a need to rely heavily on international norms.
Need we say more?
Cheerio
This is written in response to comments made in this forum asserting that " Non-citizen rights are not guaranteed by the U.S. Constitution" and "Nor is the right to travel stated on the Constitution."
I. Background:
When we are referring about the constitutional basis for our rights, we are pointing to any of the following: (i) the written Constitution of the United States (signed in 1787), (ii) the Bill of Rights to the Constitution (the first ten amendments enacted in 1791 and the Fourteenth Amendment that made the constitutional rights binding on the states) and (iii) most essentially, how the Constitution has been interpreted and enforced by the United States Supreme Court. Since the great case of Marbury v. Madison (1803), our Supreme Court has been the final authority in saying what the Constitution is and is not.
II. Non-citizens have rights guaranteed by the U.S. Constitution:
Time and time again, the Supreme Court has ruled on this issue. The Fifth Amendment to the Constitution provides that NO PERSON shall be deprived of life, liberty, or property without due process of law. The Fourteenth Amendment restated this due process protection to ALL PERSONS by making the protection applicable to the various states. The Fourteenth Amendment also added a provision with the effect that states cannot deny the equal protection of the laws to ALL PERSONS living within their jurisdictions. This duty to afford equal protection has also been made applicable to the federal government by the Supreme Court. The written Constitution did not make a reference to citizens when granting the due process and equal protection rights, but to PERSONS. The Constitution, when it seeks to limit rights only to citizens, has made such limited grants explicitly. For example, the privileges and immunities of citizenship clause of the Constitution does not apply to us.
How did the Supreme Court enforce and extend the due process and equal protection rights under the Constitution to non-citizens like us? Few examples:
1. In Mathews v. Diaz, a 1976 case, the Supreme Court stated that the Fifth Amendment as well as the Fourteenth Amendment of the Constitution protects every one of the million of aliens within the jurisdiction of the United States from deprivation of life, liberty and property without due process of law. Even undocumented aliens fall under this protection.
2. In Plyer v. Doe, a 1982 case, the Supreme Court held that children of undocumented persons are entitled to equal protections and due process protection under the Constitution in having access to public education.
The notion that the Constitution applies to us is so basic and accepted that even Ashcroft & Co. did not and have not yet challenged that. The recent pronouncements from the Supreme Court about the detainees in Cuba is further evidence about the reach of the Constitution.
Of course, we may not have all the rights of citizenship, but as a minimum, we have access to the courts and the judicial process to enforce our due process and equal protection rights as PERSONS. This means that we might challenge not just agency inaction if we can show that the inaction violated our substantive due process (see below III) or equal protection (vis a vis other persons who face little or no restrictions in their international travels), but even challenge statutes enacted by Congress if such impair our constitutional rights. The mere fact that Congress has enacted some statute does not give it automatic constitutional validity. Statutes have been challenged and stricken when found to be in violation of the due process and equal protection rights of non-citizens.
We may not know the exact limits of our rights, but we sure will not know where that frontier is unless we act to demand, enforce and get respect for those rights from Congress or the INS.
III. There is a constitutional right to travel.
If we are looking for express statements in the Constitution to see if we have certain rights or not, then a lot of key rights afforded to us by the Constitution, such as the Miranda warning rights during arrest, reproductive rights and other privacy rights will not have been protected. Fortunately, our Constitution is kept alive (to the most part) by the Supreme Court. Under the doctrine of substantive due process, the right and freedom to inter-state travel is held to be a fundamental freedom that cannot be restricted by the government without passing what is known as strict scrutiny of the courts. See Shapiro v. Thompson, 394 US 618 (1969) and its progeny.
Unlike inter-state travel, international travel is not yet a fundamental freedom but it is still deemed to be a liberty interest protected by the due process clause. Such freedom cannot be abridged by agency action unreasonably without a rational basis to do so. Our question: is what the INS doing a reasonable and rational process to justify such intrusion into the liberty interest of us PERSONS, who have been granted such right in the Constitution? We will not know until we push for and demand a respect for that right.
IV. International standards.
THANKFUL, mentioned that the Universal Declaration of Human Rights (UDHR) is not an enforceable treaty. I agree that the UDHR is not a self-executing treaty to be enforced in the US courts. Note though that the UDHR and the UN Charter are cited in the preamble to the 1951 UN Convention relating to the Status of Refugees, as made applicable to the United States by its accession to the 1967 Protocol. Art. 28.1 of the Convention requires member states to issue to persons in our position travel documents for the purpose of international travel. I will not mind throwing in this international obligation argument as an added point in our request. The history on the status and enforceability of international treaties in US courts is at best marginal. I say we have a good foundation under the constitutional framework, without a need to rely heavily on international norms.
Need we say more?
Cheerio