photo credit: alsay
Yes, you read that right. The Constitution applies to terrorists. It also applies to stay-at-home moms, illegal immigrants, truck drivers, anti-government radicals, and Mahmoud Ahmadinejad.
Put differently, the Constitution does not apply only to citizens of the United States. It seems that protectionist collectivists treat this document like a two-year-old treats his favorite toy—unwilling to share, and incorrectly believing that it is his and his alone. This fallacy has become so propagated throughout the country’s general political mindset that a barbaric jingoism has resulted, leading people to automatically support the denial of constitutional protections of freedom for anybody who is a “terrorist”.
But who is a terrorist?
The picture that first comes to mind is the “insurgent” fighting against our military in Iraq, Afghanistan, and the other countries of the Middle East in which our military is increasingly becoming engaged. Some examples of such “terrorists” might be: the vengeful man whose innocent brother was killed by an unmanned drone over the border of Pakistan; the adrenaline-fueled teenager taking on the militarized Goliath occupying his hometown; the man in the wrong place at the wrong time, picked up by a bounty hunter and sold to the American government with a fictional story created about his involvement in terrorist activities; and the list could continue, portraying stories far different than the standard “radical jihadist” that dominates our media’s narrative.
Things hit closer to home when the suspected terrorists have white skin. Take, for example, the Missouri Information Analysis Center report which labeled as terrorists supporters of Ron Paul, Chuck Baldwin, Bob Barr, and anybody sporting paraphernalia associated with the Constitution Party, Campaign for Liberty, or the Libertarian Party.
The absurdity continues—the government has also considered defenders of the Constitution, home-schoolers, peaceful protestors, and a host of patriotic organizations and individuals as terrorists. Do these “domestic rightwing terrorists” not merit constitutional safeguards of their liberty?
In other words, with a “terrorist” being any individual—U.S. citizen or not—upon whom the government arbitrarily imposes that label, why would anybody not consider the Constitution as applying to that individual? Some may take issue with this generality and instead specify the argument as only being relevant to non-citizens. But do these folks even understand what the Constitution is?
The Constitution is a document that created the federal government, and in so doing, specified powers granted to and denied that entity. It does not apply to a person or group of people, but rather to the government itself. In saying above that the Constitution applies to terrorists, truck drivers, etc., the idea is conveyed that the Constitution applies to all people who have any dealings with the federal government.
The cotton picker in Uzbekistan couldn’t care less about the U.S. Constitution, and taken literally, it does not really apply to him. But say this person vacationed in Pittsburgh, or say he visited the local American embassy. Having any interaction with agents of the federal government makes the Constitution relevant to him, since that governing document applies to the federal government and those who comprise it. Whether the person be a cotton picker, an “insurgent”, or anybody else, the federal government is bound by the constraints of the Constitution, and in attempting to administer legal punishment to another person, must give due process and protect other basic human rights—rights which the Declaration of Independence makes clear are given by the Creator to every individual.
Were this not the case, the government could extinguish the life of any non-citizen it wanted, at any time, for any reason—or for no reason at all. For if the guarantees enshrined in the Constitution apply only to U.S. citizens, what prevents the government from denying these rights to any non-citizen? The constitutional restraints are not specific to an individual who happens to be a citizen, thus (allegedly) preventing the federal government from denying them their rights, but rather are shackles of self-restraint placed around the appendages of the government itself, regardless of who the government deals with. Under the Constitution, all are recognized as enjoying basic rights such as life, liberty, and the pursuit of happiness; the government must follow an established process if it wishes to deny these rights to any individual, whatever his or her nationality.
Americans must resist the tendency to be so selfish with our supposed freedoms. We either believe that our rights came from our Creator—and thus exist for all His children—or we don’t. We either believe that the federal government has power to deal as it pleases with any non-citizen, or we don’t. And we either view so-called “terrorists” as human beings entitled, insofar as is possible, to due process when dealing with our government, or we don’t. The alternative is an alarming one, for tomorrow you and I might ourselves be branded with this dubious distinction, finding ourselves the subject of scorn and derision, reduced to a discardable humanoid whose very existence is at the mercy of another person.
This is not the America I grew up in, nor the one I want to pass on to my children. How about you?
54 comments so far. Care to chime in?
#1 Eric Checketts | May 17th, 2010 4:22 PM
Haha, I look forward to reading the responses to this one! You were dead-on when you said, “let the knee-jerk reactions begin!”. This is a great commentary on the topic.
#2 TommyK | May 17th, 2010 4:36 PM
Connor, thanks for another well-written expression of my own feelings about what’s wrong with American culture in this age. I’ve been absolutely disgusted with McCain and others grandstanding about whether someone should be “Mirandized”. The Court, in Miranda, was right to place the burden on law-enforcement. But, the law-enforcement act of notifying a suspect of his rights has become confused with the granting of those rights. The usual phrasing of a Miranda warning is “you have the right…” and yet folks somehow act as though the arresting officer were saying “I give you the right…”
Two very different things.
Thanks again, Connor.
#3 Doug Bayless | May 17th, 2010 4:37 PM
We either believe that our rights came from our Creator—and thus exist for all His children—or we don’t.
This is a much needed articulation.
#4 TommyK | May 17th, 2010 4:45 PM
Coincidentally, I suppose, within minutes of noticing your tweet, I received an email from the Mike Lee 2010 campaign (which I support) regarding this: http://www.washingtontimes.com/news/2010/may/11/restoring-peace-through-strength/
At least point #5 should be repugnant to those who love the rule of law. How we choose to treat (the very worst of) our enemies reflects greatly upon who we are, individually and as a people.
I would rather that Mike had not taken this particular cheap political point, and had instead defended a choice to not (fully) support that statement.
#6 rmwarnick | May 17th, 2010 5:17 PM
It’s amazing how many commentators (especially on cable TV) seem to think that constitutional rights only apply to American citizens. If that were true, then in theory at least resident foreigners could be rounded up and sold as slaves.
Maybe I shouldn’t say that, it might give Arizona (or Utah) legislators ideas.
#7 Jonathan | May 17th, 2010 6:58 PM
I have grown very tired of my friends’ argument that illegal immigrants do not have any rights. They conveniently disregard the wording of the Declaration when it fails to endorse their neo-con rhetoric.
#8 oldmama | May 17th, 2010 8:01 PM
you’ve written another good essay, in the opinion of this senior citizen–
#9 Bryan Hyde | May 17th, 2010 8:56 PM
Spot on, Connor! This is a huge blind spot for far too many “conservatives” who have allowed Hannity, O’ Reilly, Levin, et. al., to shape their vision of the purpose of the Constitution.
#10 Jim Davis | May 17th, 2010 9:00 PM
Connor did it again! I’d like to see anyone professing love of freedom and rule of law refute the points in this article.
On top of that I’d like to see any Latter Day Saint refute this article coupled with D&C 98:5-
And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.
The rule of law applies to all. Habeas Corpus applies to all. The Constitution applies to all.
#11 Dave P. | May 18th, 2010 7:30 AM
I’d like to add to your point, Connor.
Too many people in this country also think that it’s the Constitution that gives Americans their rights and this that translates into it only being applicable to them. One wonderful aspect of our Constitution is that, if the Constitution were to be suspended or declared null, the federal government would then be dissolved and full sovereignty returned to each State. If the clowns on capitol hill wanted to govern something, they’d still have the piece of swampland known as D.C. Of course that isn’t all that would happen:
-All three branches of the federal government would be dissolved and the members thereof lose all of their assumed powers.
-All federal laws would immediately be rendered null and void.
-All presidential Executive Orders would be rendered null and void.
-All Supreme Court rulings would be rendered null and void.
-All federal programs, positions, and institutions would immediately disappear.
-All federal taxes would be abolished.
-Federal grip over education, the environment and the economy would immediately loosen.
-The Federal Reserve would no longer have any power to manipulate the currency.
-There would be no more “legal tender” currency and citizens could use their own purchasing power for goods and services.
-All of the treaties and entangling alliances the US was ever involved in (not like it ever kept any of them anyway) would be nullified.
-All branches of the US Armed Forces and the National Guard would be dissolved, returning defensive power to state militias and the armed populace.
-All of the governing power would return to the States as they once again become independent and sovereign nations.
-Washington D.C. and its now-dictator would be the entity to shoulder all of the country’s current debt.
-The States would have to re-ratify the Constitution or a replacement before a federal government could be re-established.
And several others that I have yet to realize.
On a final note, I’m currently looking for someone who sells a bumper sticker that says something along the lines of “The real terrorists are on Capitol Hill” or “Al Qaeda: 3000 – Bush/Obama – 300,000. Do the Math.”
#12 President Obama | May 18th, 2010 8:17 AM
Can you tell me more about this Constitution? I’ve never heard of it before.
#13 Brandon | May 18th, 2010 10:35 AM
Great piece! I had to chuckle though, since I too received that e-mail from Mike’s campaign, and wondered what you thought of it. Guess now I know. Though I do still wonder how this affects your view of Mike, if at all.
#14 Rock Waterman | May 18th, 2010 10:39 AM
Spot on, as always, Connor.
This is what so irked me about Mitt Romney during the Republican debates when, rather than advocate closing Guantanamo, he said we should double it.
The Lord tells us in D&C 98:5 that these rights under our Constitution were intended to belong to ALL men. For a latter-day Saint such as Romney to want to deny these rights to anyone is a shame upon him.
#15 John C. | May 18th, 2010 2:26 PM
I’m in agreement for the most part, Connor. Of course, there are some rights that are justly reserved for citizens (the right to vote, for instance), but these fundamental human rights (religion, press, fair trial), I think, should be considered universal.
Of course, some people have different notions of what fundamental human rights should be. But figuring that out is one of the things that makes civil service interesting.
#16 John C. | May 18th, 2010 2:32 PM
Also, Dave P continues to prove my point about the link between libertarianism and the dissolution of the union.
#17 Jeffrey T | May 18th, 2010 4:09 PM
Great post! The rights protected by the U.S. Constitution against Federal encroachment are protected for citizens and non-citizens alike.
On a side note, most rights are, indeed, granted by God, and not government. Government merely protects them. The right to vote, however, is a political right granted by government. Only this explains the fact that citizens can vote, while non-citizen residents cannot, even though both are protected in their rights by the same government.
#18 TommyK | May 18th, 2010 7:33 PM
I hope I’m not splitting hairs, here.
The right to vote is universal, and it is a God-given right. Or, put another way, no agent who acts under someone else’s delegated authority, may rightly refuse to take direction from the one for whom he acts. It’s the granting of membership in the club (“citizenship”) that we’re talking about when we speak of a government-granted “right” to vote.
The distinction is important because it reminds that government never, ever creates anything. Groups of men (and women) acting by right of their own self-sovereignty under God come together by common consent and hire agents to protect what they rightly could protect for themselves. If they bid their agent to do evil, none may call that right. And, if they bid their agent to do good, none may (rightly) call that evil. And if the men come not together by common consent, then neither may they be ruled by, nor may they direct the affairs of that government. But, the stranger’s God-given rights remain a barrier to the actions of both the principals and the agents.
The “right to vote” is neither more nor less than that God-given right to delegate to a willing agent. It is the matter of who may become a principal to that particular agent, that remains privileged and arbitrarily-defined by those who already are principals.
There’s too much in this notion to convey here in a comment; I hope soon to comment here again, after I have written my thoughts on this matter in my own blog.
#19 The Constitution Applies to Terrorists | Utah People's Post | May 18th, 2010 10:56 PM
[...] By CONNOR BOYACK, UPP Contributor— Originally Published 05/017/10 at connorboyack.com [...]
#20 Mark D. | May 19th, 2010 12:12 AM
Of course the constitution applies to terrorists, the only question is how it applies. The question about terrorists revolves not around citizenship but whether they are determined to be (unlawful) enemy combatants.
“Citizens [of the United States] who associate themselves with the military arm of the enemy government, and with its aid, guidance, and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war” – Chief Justice Harlan Fiske Stone, Ex Parte Quirin (1942).
And if you are not only an enemy combatant, but an unlawful one, significantly different constitutional rules apply than if you are an ordinary criminal defendant or even an ordinary prisoner of war. This distinction has been upheld in several much more recent decisions, including Hamdi v. Rumsfeld (2004).
#21 TommyK | May 19th, 2010 12:47 AM
Free men don’t need robed justices to tell them what are their rights.
When anyone – citizen or not – acts with violence or immediate threat of violence, anyone may rightly act, even with violence, to resist. That is to say, we all possess God-given rights to self-defense and to protect defenseless, among others. And, it doesn’t matter where on the Earth (in whose “jurisdiction”) we happen to be at the time. Right is not relative, and is not defined by even an inspired Constitution. But that’s not what you’re objecting to, is it?
What you appear to be claiming (or reporting that The Nine have claimed) is that it only takes the President’s say-so for a man to be deprived of his life, liberty, and property without due process of law, and you (or they) think that’s good and right and within the meaning of the Constitution. And what I think Connor is saying, and if not Connor, then what I am saying, is that there is a more-correct answer.
I believe that for all crimes which do not involve immediate threat of irreparable harm, an accused person must be arrested, charged, and tried for the crime, and that for the safety of all of us, the arrest, charges, and trial must be matters of public record. All of these elements are specifically mentioned in the Constitution, and there are no good reasons (my opinion, of course) not to apply them equally to citizens and non-citizens alike.
The jargon (“enemy combatant”, “unlawful enemy combatant”, “Hague/Geneva convention”) has taken a life of its own, I think, and has obscured the fact that due process of law, even in the case of prosecuting actual guilt, costs civilization less than its absence would, and protects civilization more than its opposite (“indefinite detention”, “secret tribunals”) does. If some treaty says that it’s OK to kill a foreigner just because the President says he’s a terr’ist, that treaty has no place in our canon of law. An unconstitutional law (or treaty) is of no force, and void under our system of law.
#22 Brandon | May 19th, 2010 12:58 AM
I would just like to say I like the sentiment, but I disagree with some of the syntax.
“Terrorists” or otherwise all foreigners for that matter, are not signators nor participants in the document we call the Constitution. However, the INALIENABLE rights we claim that all people have, we cannot deny them.
Thus, do they automatically have the protections of our legal system, etc? No, that goes down a rabbit whole I have no intention of going down… But we cannot deprive them of their inalienable rights either, and maybe using existing system could work if we choose to continue the wars. But among the inalienable rights certainly includes forbidding “cruel or unusual punishment”, etc etc…
I think this is the principle confusion. Our rights, only some of which are articulated by the Constitution are not “Constitional Rights” but “Inalienable rights”.
#23 John C. | May 19th, 2010 9:05 AM
Perhaps we do have a universal right to give up some of our rights (because when we bind ourselves to some representative their decisions are as binding on us as ours are binding on them). But that idea of a right is so vague as to unhelpful. Perhaps a better idea is a right to establish who can legitimately represent us and who can’t, but even that gets hairy. Many American citizens have recently argued that presidents don’t really represent them, because they didn’t vote for that president. That’s not an idea with any real political power. Whether or not you chose a particular president to represent you, the president does represent you in making treaties, enforcing laws, waging war, and so forth (assuming you are a US citizen, but this could be equally applied to any head of state). Of course, they should do their best to represent their constituents, but this situation is always going to involve compromise between constituent and representative. It can’t be otherwise.
Regarding inalienable rights, I’m fine with the idea and believe in many of the same ones that you do. Unfortunately, we all have a tendency to declare certain rights as inalienable even when they are not, because those rights are important to us. So, for example, for some people, the notion of segregation established appropriate rights for all people. These rights were considered inalienable for all concerned at their appropriate levels. It is easy today to look back and see why that idea was wrong-headed and vile, but, to some degree, any declaration of a right (right or wrong) is an implication of other’s obligations to you. Some people argue for an inalienable right to food or health care. They may even be right. But it seems wrong to simply take someone’s assertion of a right at face value. Of course, that also seems wrong, because rights should be obvious, without need for justification. And so down the rabbit hole we go. The truth is that sometimes we do need someone else to aid in articulating our rights, because our appetite for rights is often greater than it ought to be.
#24 TommyK | May 19th, 2010 10:43 AM
The word “rights,” in my view, is nothing more nor less than a condensation of the meaning, “those choices of action that I may rightly (correctly, with God’s approval) perform”. My rights are never, and cannot be, demands upon another. However, because everyone else also has the same rights, there are certain acts that I may not perform, insofar as performance by me damages them or threatens them in the enjoyment of their rights.
Any other conception of rights has, as its foundation, the satanic notion that people should be compelled, rather than persuaded, to do good.
In relation to Connor’s thesis, the right to a fair and speedy trial, the right of habeas corpus, etc. all really are just expressions of the rights of life, liberty, and property. If one complains against his neighbor, to deprive him of his life, liberty, or property, it must be publicly demonstrated that he/she/they acted in violation of the rights of another. This demonstration is what we know as a criminal trial. The link between the few, defined rights of life, liberty, and property, and the right to a fair trial seems to me to be pretty straightforward.
The “right to vote,” likewise is just the right to dispose of my property. If I hire an agent to “represent” me, I may direct the manner in which he represents me. If he fails to represent me, I may fire him and hire a different agent, or represent myself. However, in the event that I pool my interests with those of my neighbors, and we together hire an agent or agents to represent us, we necessarily would restrict the capacity of the agent; this is the function of the Constitution and its “few, and enumerated” powers. It is only by ignoring the Constitution that we arrive at these crises by which they in Washington, who claim to represent some, trample the rights of others.
What twists of logic would be needed to get from the right to life, liberty, and property to the ability to demand treatment by medicine men? Certainly, I have a right to my life, and I may do everything within my rights to protect my life, so far as I do not violate the rights that others equally enjoy from their Creator. But I *would* have to violate their rights in order to compel them to treat me (or in order to compel some third party – the taxpayer – to persuade the doctor, by paying him for his service).
I strongly agree with you, that our people, generally, are ignorant of what their rights are. If I were inclined toward theories of conspiracy, I might claim that it almost seems deliberate, how such simple concepts have become confused. And, because the parents are confused, they do not recognize that their children are taught wrongly by teachers who also are confused. And so, the confused children become the next generation of confused parents, and so-on. The cycle can only end when we persuade them of correct principles.
#25 Jeffrey T | May 19th, 2010 11:23 AM
Non-citizen residents are protected in their life, liberty, and property by government, just the same as citizens are. However, only citizens can vote (have a say in who is hired to protect those rights). Thus, when voting, citizens speak for citizens and non-citizens alike in hiring government officials.
Even the Founding Fathers didn’t consider voting an inalienable right. They reserved that privilege to property owners. They only wanted those with skin in the game to be able to contribute in the hiring process. They also entrusted Congress with authority to decide how and when non-citizen residents can become citizens.
#26 John C. | May 19th, 2010 11:31 AM
Let’s assert that I have a right to self-defense. Depending on the situation, this could extend to a right to kill another or to compel behavior from another (force them to leave me alone by imprisoning or injuring them). Every right involves obligating others because every right (especially inalienable rights) is a constraint on other people’s behavior. Which is fine, but calling a constraint on behavior anything but is obfuscatory. Better to say that there are some ways in which behavior should be constrained by notions of rights for the general good (do no harm, etc.). But those rights are just as compelling as anything the Adversary may have suggested; it is just that it is up to us to compel enforcement, not God (at least, not God right now, setting aside afterlives).
In any case, if we are in a community, then our membership in the community allows for the creation of constraints and obligations on one another. You can’t live with other people without some form of constraint or compulsion. We are too little persuaded by reason and emotion to have a community work otherwise. So, policemen carry guns (as do many people trying to protect themselves from muggings). Guns themselves exist to aid in compulsion, whether through actual or implied violence (in fact, a good case can be made that the 2nd Amendment is an attempt to compel certain behaviors from the government by insuring that there is a well armed populace). There is no community without compulsion.
That said, it is totally appropriate to set limits on state and individual compulsion (that’s what the Bill of Rights is). But we shouldn’t kid ourselves. The only way to maintain complete personal liberty is to avoid all other people.
#27 Aaron Sellers | May 19th, 2010 12:07 PM
I think you have to differentiate between the initiation of force, which is wrong, and the righteous use of force to defend oneself or another from that initiation of force.
#28 Jim Davis | May 19th, 2010 12:50 PM
Well put Aaron.
Also, John, terms such as “general good”, “community”, and “common consent” are often used by people who endorse collectivism exclusively. Collectivism seeks to give priority to group rights over individual rights. Do you seek to give priority to group rights over individual rights?
For those wishing to see the difference between the opposing philosophies of individualism and collectivism watch this video. I don’t endorse either philosophy exclusively. To me, there is good and bad to both. At the same time, I believe individual rights should be protected because when groups receive rights over individuals then life, liberty, and property are violated. You can’t give special rights to groups without taking them away from others. Individual rights are equal, fair, non-biased, non-racist, etc.
#29 TommyK | May 19th, 2010 1:38 PM
Protecting my life and my stewardship by violence is not compelling another to honor them. It is the natural and just consequence of the conflict between my desire to act within all of the commandments and stewardships I’ve received, and the desire of another to interfere. And, even then, I may obtain blessings by forbearing to let those consequences follow. See D&C Section 98. And whether by forbearing or acting, I would do wrongly, unless I had obtained personal revelation as to the Lord’s will for resolving the conflict. In that sense, even my rights are not absolute. However, within the general commandments given for human justice, they are absolute – no man may rightly harm me for exercising my God-given right of self-defense.
As to the notion that community cannot exist without compulsion, I disagree completely and without hesitation, and I point to the prime example that we have been commanded to follow – that of the Kingdom of Heaven. Our Father invites us, without compulsion, as we are reminded at the end of D&C Section 121, to join him in his community. It would be twisted to say that we who are prevented from entering therein by consequence of our own choices are compelled to stay out. Likewise, it is a mistake to say that they who, premortally, were expelled by consequence of their choices, were compelled to leave.
I truly hope that my words do not give offense. If I seem to be vigorous in my responses, I excuse myself in that I believe that there are some problems of living together in communities here on Earth that are of our own creation, and result first from incorrect understanding of our relationship to our Father, and to each other, and to the Earth and all things in it. It is of this misunderstanding that I seek to be not guilty, and to persuade others to be not guilty.
#30 John C. | May 19th, 2010 2:03 PM
If I believed that the death penalty was entirely about preventing future harm, I might agree with you. But it isn’t and I don’t. As individuals and as groups, we often compel behavior. Besides, one man’s righteous self-defense can appear to be another man’s vindictive revenge. It’s hard to know from the outside (or in the courtroom).
I seek to find a balance between community and individual rights. I think that privileging one to the exclusion of the other always poisons societies and individuals.
“consequence of our own choices”
Who assigns the consequences? Who enforces the consequences?
I’m not seeing the difference that you are seeing. How is it that Satan and his followers weren’t compelled to leave in LDS doctrine? They certainly can’t stay in “heaven;” why?
It feels like your argument is that God doesn’t compel folks because God doesn’t compel folks. Perhaps the problem is that I tend to conflate obligation with notions of compulsion. If I feel obligated to someone or something, then I feel compelled to act in accord with (on my good days, at least). Perhaps the source of compulsion is myself (I want to be someone who lives up to obligations). But sometimes it isn’t (I don’t want to be thrown in jail, so I pay my taxes). My point is that being in a community means accepting some obligations that are compelling because you want to be a member of the community. You are compelled to participate because not participating removes you from the community (or, just as effectively, the community removes you). You don’t have to go along with everything in the community, of course, but you have to figure which behaviors are compelled in order to create community and which aren’t. So you could insist on singing the North Korean national anthem instead of the Star Spangled Banner at the beginning of baseball games, but I would guess that you quickly wouldn’t be a part of that community anymore.
Some people don’t feel like those sorts of constraints are compulsory, but I always have considered them as such. Perheps that is what is at the heart of our disagreement.
#31 Jim Davis | May 19th, 2010 2:15 PM
I seek to find a balance between community and individual rights.
I can’t conceive there being such a balance. If groups have rights that other individuals don’t get then that is unjust. Rights should apply to all individuals equally. Can you give examples of when it is just for groups to have rights? When do individual rights, applied equally to all, poison society?
#32 Kip Meacham | May 19th, 2010 4:56 PM
I completely agree with your essay, Connor. The Constitution serves us best in times of crisis. Setting its tenets aside out of some warped, fear-mongering expediency is exactly the wrong thing to do and something I want no part of.
Oh, and as for the ‘enemy combatants’ argument… my concern there lies in how the Federal Government has attempted to take license with how one is declared an ‘enemy combatant.’ Remember the rule of law, people, please!!!!
#33 John C. | May 19th, 2010 6:22 PM
Of course I can. American citizens get to vote for American politicians and other people don’t. Members of the police have the right to imprison you and other citizens don’t (for that matter, the state’s representatives have the right to kill you in a way that you don’t). Nobody argues that these inequalities are unjust. Members of a jury have the right (also the duty) to determine your guilt or innocence in a way that directly affects your rights of self-determination. Republicans can declare that only Republicans have the right to participate in their primaries and caucuses. Country clubs can, to some degree, prevent women from freely joining their establishment. BYU can be more discriminatory in its hiring because it is a religious establishment, so can catholic schools (even if they take federal money). There are all sorts of communities that include or exclude others from participation and we don’t normally argue that the exclusion is unjust so long as it isn’t permanent or impossible to overcome. Heck, in the LDS church, men who have the priesthood have rights that men and women who do not have the priesthood don’t (right to participate in ordinances, stuff like that). Perhaps that is even a permanent lack of equality.
How do you equally apply individual rights without a society? My point is that the more people become concerned with the maintenance of their own individual rights, the less need they have for other people and society as a whole. If you see government primarily as a negative (because government will always impede your rights to some degree), then you begin to doubt whether or not you should heed the government or participate therein (see Dave P fantasizing about returning to the Articles of Confederation above). My argument is that that poisons society, because maintaining the integrity of my rights is always easier without other people around, especially if I always see them as making demands of me that I feel interfere with my rights. Is that making any sense? I can try to clarify some more if you like.
#34 TommyK | May 19th, 2010 6:26 PM
Some of those very things are *exactly* what I would argue are wrong. A police officer doesn’t have special power to apprehend a violent criminal taken in the act; it is because we all have a right to life that it is good and right for any of us to intervene when we witness personal violence being done. A police officer is neither more nor less than a hired agent for defense. Any powers that the state would claim to grant to a police officer either are already within our power to exercise in defense, or are usurpation and the state actually has no power to grant.
#35 TommyK | May 19th, 2010 6:29 PM
Further, I would say that the poison is already found in our society, in the fable that so many would maintain, that government powers somehow rightly exceed the powers of the sovereign individuals who create the government.
#36 Clumpy | May 19th, 2010 8:40 PM
I love this post Connor, unconditionally! We are sometimes so eager to deny basic rights to our own citizens (this isn’t new, though many of the means to do so are), so it’s refreshing to see someone standing for the principles of our Constitution applied to humanity as a whole. I really believe that doing so will do much to negate the effects and reasons for terrorism (I’m talking foreign policy stuff here too) far more than bombs and tearing families apart will do.
I really feel that doing the right thing will result in a positive end, no matter what, though I understand why the cutthroat politicians and businessmen who dictate so much of our discourse and policy abandon these principles in the pursuit of the cold pragmatism we’ll have to shun to keep our soul as a nation.
#37 Bryan Kingsford | May 20th, 2010 11:09 AM
Great article and great discussion.
On the Constitution applying to terrorists:
I agree 100%. Here’s my article on a similar subject:
On balancing community rights with individual rights:
I don’t believe communities have rights; only individuals. However, individuals can and should have the freedom to make agreements with others. This is the fundamental basis of government. People who choose to live in a community implicitly accept the agreement already in place, including the established government.
Some libertarian minded people have in my opinion gone way too far down the path of individual rights, and would prohibit others from freedom of contract in the sense I’ve described. My approach allows for services like road building and police services funded through taxation. While some might call it compulsion and an affront to individual liberty, I call it exercising the freedom of association and entering into agreements.
On the subject of voting:
One unalienable right is certainly the right to participate in the process of choosing your own government. Government gets its power from the consent of the governed. If I’m subject to a governmental jurisdiction, perhaps with resident status, I should have the right to vote. I realize this currently isn’t the way things work in the United States, but it feels right to me.
#38 Mark D. | May 20th, 2010 7:47 PM
TommyK, There are a number of difficult issues here. There is of course a distinction between natural rights and constitutional rights. The former is a philosophical question the latter a legal question.
The legal question is based on the difference between civil and military law. The difficulty of finding the proper dividing line and making the determination aside, if someone attacks the United States he or she is a military combatant, not a criminal. In this case, an unlawful military combatant, aka a “terrorist”.
In a war, soldiers shoot back, injuring and killing other soldiers who have committed no crime. Is this a violation of the enemy soldier’s constitutional rights? If you think that it is, you must also agree that we must eliminate the entire concept of military law and the “law of war” and turn the military into a police force.
Needless to say, police tactics are not entirely effective at stopping an armored division crossing the border. Let’s see – that tank fired at us, so we can fire back. But the other tanks, they haven’t fired a shot, so we need to chase after them with police cars and set up some sort of road block.
#39 TommyK | May 20th, 2010 8:33 PM
Certainly, I took a tangent away from the point of Connor’s post. My apologies, as by sheer length alone, it appears as though I tried to dominate the conversation.
But while I agree with you that we may exercise our right to self-defense differently during wartime than we would do during peacetime, I disagree with your assertion of what makes an act of war; notwithstanding, it is the same kind of assertion recently made by many of our elected officials, it remains incorrect.
“War” is, by definition, a matter of State action. This is the traditional definition, and is undoubtedly the only meaning contemplated by the Constitution. So, we have no need to consider the law of war when contemplating Connor’s question. Rather, in order to reason about Connor’s question, we must instead consider rightness of various police actions – which led me to the tangent we’ve identified.
Tanks and AH-64′s in downtown Manhattan aren’t likely to be nearly as useful in our defense, in the case of a terrorist with a suitcase full of C-4 and plutonium strolling without fanfare toward his intended destination. But, good police work might – just might – identify him in time to arrest him before he harms others. Does it make sense to you why I reject the assertion that this man must be dealt with according to a different legal framework?
#40 TommyK | May 20th, 2010 9:06 PM
I would tend to agree with you only up to a point. While I believe that men have the right to bind themselves (“under contract”) to other men, I do not believe that it is or ever has been right for a man to bind any third party. As, for instance, in practice the offspring of those men who ratified the Constitution become bound by a law of men, simply because they had the mis/fortune of being born under some arbitrary circumstances not of their choosing. Don’t get me wrong – I count myself rather fortunate to have suffered this fortune, as almost anywhere else in the world would have bound me under a law even less close to the natural law.
This particular corner of my beliefs also denies that men may rightly make perpetual covenants with anyone but God, but maybe again I’m going off on tangents. Without saying that we should adopt the statutes and judgments given in Horeb, I note that the law given by God allowed no bond to remain unsevered more than 7 years; in the sabbath year all bondmen were to go free, and anything borrowed or lent was to be returned to its owner. Indeed, even until the 20th century, mortgages on homes generally did not exceed 7 year terms.
In any case, the idea of “well, if you don’t like it, leave” misses the point, which is this: by what right does a government claim to be able to compel its citizens, and why is it good and right for “government” (actually just men acting according to the bidding of other men) to be able to act in relation to its citizens in ways that are known to be crimes, when individuals, not under the cloak of State, act the same way? What is the foundational principle of right?
I claim that there is no such principle; it is only a manifestation of Hobbesian “war of all against all” and most of the time, most of us forbear to resist the injustices that follow in that war.
#41 oldmama | May 21st, 2010 9:37 AM
the ‘trouble’, as I see it, being an older person who personally had losses due to Viet Nam and, therefore, has a unique perspective on war and ‘terrorism’–
is whether or not *you* (I/we/anyone) believe what government leaders are telling *you*–
the trust that is exhibited by someone’s saying: “a terrorist is an enemy combatant”–
implies that *you* truly believe that a person who is stated by an American leader to be a terrorist really is one–
*I* believe that there have been innocent people impounded at Guantanamo, and I believe that many of *our* leaders have lied, baldly, to the American people–
therefore, this logic doesn’t apply.
I believe in the concept of blowback (yes, I have listened to Ron Paul), and I believe that we can’t be, quite, certain who ARE the terrorists.
Are they middle easterners (oh, so conveniently “brown” and ‘different’ from *us*) or are they our *own* leaders and their CIA/FBI subjects, not to mention the economic hit men–
and the warriors against drugs–
Once a person reads John Perkins (“Confessions of an Economic Hit Man”) this entire discussion takes a different turn–
and perspectives, entire paradigms, can change.
So, IF the terrorists are who the oligarchs who own the MSM say they are–
then you have a point.
If they are not . . . the entire argument has to be redesigned.
This is why, and for some reason I say this over and over again without being heard–
this is why LDS who ignore the warnings about ‘evil and conspiring’ men . . . in the Book of Mormon–
I mean, it is either there, or it isn’t–
it’s either real and true, or it isn’t–
and why do *we* as LDS get such a kick out of laughing down people who bring up modern evil and conspiring men–
I don’t know, but I suspect that those who do are busy filling their minds with MSM propoganda.
#42 JL | May 21st, 2010 11:43 AM
Short and sweet: “Well said.”
#43 Jim Davis | May 21st, 2010 6:14 PM
If any LDS person endorses the collectivist concept that group rights supersede individual rights then they should read D&C 134. This section outlines the proper role of government as well as man’s relationship to government. The second verse reads:
We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life.
Life, liberty, and property…Sound familiar? The section also mentions when rebellion is justified, the sovereignty of man over government, what a republic is, when it is justified for religions to get involved in civic matters, how it is just for people to defend themselves, their friends and their property and many other things liberty-lovers might be interested in.
#44 Clumpy | May 22nd, 2010 10:07 AM
I would like to comment my belief that this whole controversy is basically the result of racism and tribalism in the first place. We have this idea of a “terrorist” as some “derka derka derka” turban-wearing agent of hate, while the vast majority of domestic terrorism cases involve caucasians. We essentially see those who are not us as subhuman and unworthy of the same “innocent until proven guilty” that we are.
#45 Jeremy | May 22nd, 2010 10:47 AM
I agree with most of the article. I am a bit confused, and maybe this is me bringing in other conversations I’ve heard recently, but this appears to be a response rather than the start of a discussion, to a related issue I’ve heard a lot about recently. Connor, what prompted you to post on this topic?
#46 oldmama | May 22nd, 2010 11:03 AM
thank you, JL–
#47 Clumpy | May 22nd, 2010 11:27 PM
I’m with Jeremy actually, Connor. I’d like to see more on the overriding idea behind your original post. I’ve been having some interesting conversations with Jeff T on the constitutional rationale for immigration policy as well and I’d love to see your take on the issue.
#48 David M | May 24th, 2010 1:25 PM
Thanks, Connor! Your refreshing perspective on the Constitution answered many nebulous questions that have lately been trying to form in my mind.
#49 Carissa | May 24th, 2010 9:52 PM
Obama in 2006:
“… restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.”
Why the “180″?
#50 Bill | June 5th, 2010 7:49 AM
Interesting perspective, Connor. Definitely gave me something to think about
#51 Marcus | June 23rd, 2010 2:35 PM
Good stuff. I would say that the real discussion should not be rights, in it of itself, but the scope and depth of rights given to an individual. I think lthis ends itself to a great discussion. Everyone gets some rights, whether they be rights to a sanitary jail cell, eating rights or privilages, or whatever the government gives to the individual to sustain and maintain his or her life. The problem is the scope and depth of the rights. What do I mean? In Guantanamo, for example, individuals are often represented by a military personal representative, which the process allows some rights of review; however, most detainees have little rights when it comes to hearing of accusatory evidence. This is a depth problem. I believe, outside the constitution, that a mininal right allows the defendant to hear, at least, the accusations which he or she is being accused. In the non-combatant process, the individual can be held accountable for and found guilty for information that he has no access or review too. Information is often blackened and surpressed/witheld for national security purposes. Though there is a review process, the limited right of full review is not allowed. There are many other examples of the government giving very little rights, but not the whole right. I hope this makes sense. However, it is true that some rights have no depth because they are flatly denied.
Here’s James Madison in his Report of 1800:
Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.
To this reasoning, also, it might be answered, that although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens, without regard to that particular consideration.
But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.
If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.
#53 Monte B | September 30th, 2011 11:22 AM
I read about half the comments to make sure my point had not already been made. So if in the bottom half of the comments someone has already addressed this I apologize.
A clear distinction needs to be made between the words “rights” and “privileges.” As has been clearly stated, the Bill of Rights in the US Constitution does not grant anyone any rights anywhere. It merely affirms that these are God given rights. That means that it really doesn’t matter what nation or under what governmental structure you live under, these are the rights of every living human being. Whether a government chooses to recognize those rights or not is a totally different matter altogether.
Someone mentioned the “right” to vote. Voting in the United States is not a right as someone mistakenly said it was. It is a privilege reserved for the citizens of various states within this republic to engage in self-determination for the continued preservation of their form of government.
And let’s be clear about what the US Constitution really is. It is a document intended by our founding fathers, to be a contract between the Federal Government and the States that created the aforementioned entity. It clearly states the 31 enumerated powers which the Federal Government is allowed to exercise. All other powers are reserved to the states, or to the people.
So if someone is not a citizen of this nation, only the Bill of Rights is intended to affirm and protect their rights. Everything that is not a God-given right, is a privilege which can be granted and taken away by governments pen. So really, you have to look at each of the 50 state constitutions to see what additional privileges they grant or restrict in their document.
#54 David Welsh | September 30th, 2011 11:59 AM
Good job, Connor! Obama can count himself among such esteemed American Presidents as “honest” Abe–another lover of liberty and the rule of law.
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