It seems to me that they would have construed it to allow taking enemy prisoners of war during a war. Wars, at that time were declared by Congress and has clearly defined victory conditions. Prisoners were expected to be repatriated at the end of the war.
Now we're engaged in hostilities not declared as a war and without clearly defined victory conditions. If enemies in that conflict are treated as POWs, their detention is indefinite. I'm pretty sure the Constitution's authors did not intend anything of the sort.
Why do you choose to read the 5th amendment as granting protections to a class of people, instead of reading it as a declaration of prohibitions to government action?
I'm reading it as a prohibition of government action with respect to a certain class of people. Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). Second, because that's how it's always been interpreted. You can trace much of the language of the fifth amendment back to the Magna Carta, which was an enumeration of limitations on the power of the English King with respect to the free men of England.
More generally, at the time of the founding it was taken for granted that the Constitution only applied to American soil. Most of the extra-territorial application of the Constitution has been the result of subsequent legal development.
The Constitution doesn't mention geography, that's true. That could either be because the framers intended it to apply to everyone everywhere, or because they thought it was obvious it would only apply to Americans in America.
Luckily, the Constitution is not a disembodied bit of text. We have copious context to use to evaluate the significance of the lack of geographical distinctions in the Constitution. The English legal tradition, which the Constitution is a product of, is highly territorial. English law applied to Englishmen in England. Thus, it is reasonable to conclude that American law, including the Constitution, was intended to apply to Americans in America.
Scalia's dissent in Boumediene has a good discussion of the application of Constitutional rights to non-citizens: http://www.law.cornell.edu/supct/html/06-1195.ZD1.html. I'd skip to Section II to get past the political rant.
It is obviously more nuanced than you make it seem. Do you really think it would be constitutional for the government to target a specific religion or race with drone strikes as soon as any of the targeted group were to go on vacation in e.g. the Bahamas? I don't necessarily disagree with your conclusion with regard to the current drone strikes, but I think your rational/analysis is deeply flawed and there certainly isn't a complete trashing of the constitution as soon as a citizen leaves our borders.
I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply.
You're looking at it wrong. It's that the text does not allow for a certain class to be excluded, which is what the Obama Administration is doing with respect to "military-age males."
No kidding, the farmers (who grew up in the heartland of america) of the constitution knew that only god fearing american citizens were worthy of the rights specifically enumerated to them by the state via the bill of rights.
I don't know where people get the idea that these rights extend to everyone, or that there may be more rights than specifically listed in the bill of rights.
Leave aside what you learned in high school about the Constitution, and look at the document and the actual history. At the time of the founding, and for more than 100 years after the founding, the Bill of Rights didn't even prevent North Carolina from detaining an American Citizen without trial. And you're seriously telling me that the founders would have contemplated applying Constitutional protections to Afghans in Afghanistan?
It's weird how often discussions about amendments get caught up on wording, precedents and people's intentions rather than what is good or bad. It's as if the founding fathers figured it all out and wrote it all down back in the day, and with only the right interpretation everything will be perfect. Sounds a lot like religion.
Debates about Constitutionality become legalistic because the Constitution is a legal document. It's basically a contract that represents the last time Americans ever managed to (kinda) agree on anything.
You also have to keep in mind that debates about Constitutionality arise over politically unpopular topics. It's a way for people with minority viewpoints to say: "well, whether you think this is good or bad, it is inconsistent with this larger scheme we all agreed to."
If you held a vote and asked people whether they thought people accused of terrorism, especially abroad, should have rights, you'd lose. I remember in college being the lone dissenting voice in a discussion of the merits of turning the entire Middle East into a glass parking lot. Ordinary Americans believe very deeply in the sovereign right of the American government to kill foreigners who do anything contrary to American interests.
Hence the resort to legalism. You can't convince Americans that it's good for suspected terrorists to be given trials, etc, so the best you can hope to do is convince them that they, collectively, bargained away the ability to hold suspected terrorists without trial.
There are two problems with this analysis. The first is that the Constitution is not a "contract" with which Americans "collectively bargained away" anything, because modern Americans were not alive at the alleged time of bargaining away things, and being alive is a prerequisite for making a contract. To believe in constitutionalism is essentially to not believe in governance by the consent of the governed.
The other problem is that even if it was a contract, we seem to ignore it, because we pass the laws described in the article. So it's not a very effective system.
I'm using "contract" in a somewhat figurative sense here. Obviously the Constitution isn't an ordinary contract, but it has many of the characteristics of one. Also, I think it's a modern conceit that one cannot be bound by obligations agreed to before one was born. Society and government are continuous, and we "consent" to the governing rules by being born and choosing to remain a part of a particular society governed by a particular government.
As for the laws described in the article--they are not the product of Congress "ignoring the Constitution." The appearance of "ignoring the Constitution" is itself the product of certain civil libertarians believing the Constitution says more than it does, or focusing on what they wished the Constitution said rather than what it does say.
It's called "the rule of law". It's a concept that came as a reaction against a ruler make decisions based on his own opinion of what is right and wrong.
Yes, there is a place for a discussion of ethics outside of the current legal framework, and if the Constitution is found to be lacking in that area, then it should be amended. Until that happens, our government is legally bound to abide by the Constitution as it is written, and to judge whether or not that is happening, the document must be interpreted. One important aspect to interpretation of a document is to understand the circumstances under which it was written. To do that with a 200+ year old document requires a little knowledge of history.
The framers of the Constitution did not achieve perfection, but at least the idea of the "rule of law" does give us a relatively consistent and stable society in which to live. The disadvantage is that written law is static and cannot quickly adjust to changing circumstances. Ideally, we would have an enlightened leader who knew the right thing to do in every circumstance, and would govern with perfect justice. If we could be assured of that kind of government, we wouldn't need to worry about interpreting documents.
What're we in court here? Does pg come in at the end and bring up the highest-voted comments at his next illuminati meeting? The original article lists lots of pretty bad things. The fifth amendment is relevant to the extent that it should be improved to prevent those bad things. I don't think the word of the law is the biggest problem here.
So I don't have a problem with drone strikes. I think they're cheaper and safer than the only practical alternative, which is sending special forces abroad. I also don't think non-Americans outside American soil have rights under our Constitution, because they're not members of our society. I also don't have a problem with monitoring of internet communications so long as its done by computers with security protocols to prevent misuse of the information, and robust court supervision of the use of the resulting evidence. I think my views are actually representative of typical Americans. So where does that leave us? You think those things on that list are "bad things" and I think they're "better than the alternatives."
This is why discussions turn legalistic, because people dissagree about what's good and what's bad, so they instead fight over what is legal and what is illegal.
Yes, it is amazing how quickly some Americans shift from a discussion on whether it is justified to recognise the rights of non Americans to whether it is justified to not murder them.
> I also don't have a problem with monitoring of internet communications so long as its done by computers with security protocols to prevent misuse of the information, and robust court supervision of the use of the resulting evidence.
"Security protocols" to prevent misuse, huh? Why would you think they'd be concerned with something like that?
What do you think is the idea behind NSA's massive spy center in Utah? "Hey guys, let's capture all traffic on the Internet, and then make damn sure we'll never do anything with it that might compromise someone's privacy, ever!"
> robust court supervision of the use of the resulting evidence
As robust as the supervision on mortgages in the past few years, perhaps?
Case in point: With all those hundreds of thousands of mortgages the bank bought, it simply stopped filing basic paperwork – even the stuff required by law, like keeping chains of title. A blizzard of subsequent lawsuits from pissed-off localities reveals that the bank used this systematic scam to avoid paying local fees. Last year, a single county – Dallas County in Texas – sued Bank of America for ducking fees since 1997. "Our research shows it could be more than $100 million," Craig Watkins, the county's district attorney, told reporters. Think of that next time your county leaves a road unpaved, or is forced to raise property taxes to keep the schools open.
But the lack of paperwork also presented a problem for the bank: When it needed to foreclose on someone, it had no evidence to take to court. So Bank of America unleashed a practice called robo-signing, which essentially involved drawing up fake documents for court procedures. Two years ago, a Bank of America robo-signer named Renee Hertzler gave a deposition in which she admitted not only to creating as many as 8,000 legal affidavits a month, but also to signing documents with a fake title.
No, it's not called the rule of law. It's called reading your personal ideology into a 300-year old constitution because you're too cowardly to actually come out and pass laws or - Heaven forbid O noble Americans! - amend the Constitution to line up with modern times.
>It's weird how often discussions about amendments get caught up on wording, precedents and people's intentions rather than what is good or bad.
That's only natural. You have to determine what the amendment really means before you can decide whether or not it's a good idea.
Madison didn't want to include a bill of rights at all. He viewed the US Constitution as a document enumerating what the federal government can do, which is the most restrictive interpretation, and thus things like prohibitions on speech were obviously outside the powers of the federal government.
He felt that by including the Bill of Rights the meaning of the entire document was changed and people would argue it allows the government to do anything that isn't prohibited.
When I read the text of the amendment, I think that they very much would have considered it to cover everyone.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;"
Our declaration of independence says that "We hold these truths to be self-evident, that all men are created equal" -- ALL men. Not just American men. I think those two, taken together, imply that the founders would have meant for the 5th amendment to cover American men, Englishmen, Frenchmen, and natives of foreign lands which they had not heard of yet.
1. Assume for the sake of argument that imprisonment of suspected terrorists without trial violates the Fifth Amendment. The question then becomes: What must the government do about the violation --- that is, what is the prisoner's remedy?
A) The canonical remedy for unlawful imprisonment is the writ of habeas corpus [1]. When a court issues "the Great Writ," it orders the prisoner's jailer(s) to bring the prisoner to court and, by implication, to release the prisoner if the court so directs.
B) Article 1 of the Constitution expressly empowers Congress to suspend habeas corpus --- in other words, to strip from courts the authority to order the release of prisoners --- "when in Cases of Rebellion or Invasion the public Safety may require it." [2] Nothing in the Fifth Amendment alters this congressional power of suspension.
C) It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11.
D) The courts try to interpret the various parts of the Constitution to be in harmony with one another if at all possible.
E) So, "properly" interpreted, the Fifth Amendment might not stand in the way of imprisonment without trial in a case covered by a congressional suspension of habeas corpus. (The breadth of this possibility troubles me, incidentally; also, I'm far from a constitutional scholar.)
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2. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell, not least because if that principle had been followed, the U.S. would not long have survived as an independent state.
"It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11."
Even if someone did argue for that, which you didn't do, they would argue that 9/11 was an "invasion", not an invasion. See how that works?
Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked, talking about how he's an evil man which had fuck all to do with him attacking the US. That's kinda where your whole post falls down like a house of cards. Remember Powell before the UN, with a dry throat and sweating a lot, showing his slides about what might be mobile WMD labs? Heh. No, to anyone not accomplice to it, or suffering from Stockholm Syndrome, this is rather clear. And it's old. Americans have been warning Americans for a century now. The military industrial complex doesn't do this since lately.
As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell
If you simply define "military age males" who died in drone attacks as those, then they're not really enemy combatants, they're "enemy combatants", which raises the same issue as the "invasion" stuff does. Also, simply attacking people and calling it war doesn't make it "wartime". Just saying "it's war!" doesnt make it war.
It can't have been that self-evident that all men were equal when they wrote the Constitution. Indians didn't count and slaves only counted for 3/5 of a person.
"according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."
That specifically states that not all men are equal.
If you want to get an idea of what protections the founders thought should apply to non-Americans outside U.S. soil, you need look no further than see how they handled the American Indians. Hint: they didn't bring Indian chiefs to Philadelphia for trials in American courts.
If you want to be completely literal and pedantic about it, "in the land and naval forces" refers to persons serving in the Army, Navy, and Marines (or their historical equivalents).
Just a note, the declaration of independence is not part of the law in the US. In fact, there is little overlap between the signers of the declaration of independence and the framers of the Constitution.
You can't say with a straight face that the founders thought Constitutional protections should apply to everyone, even people abroad, when they declined to extend any protection to black men living in America. Or Indians. Or women.
Except that you can say it with a straight face. The fact that they had to explicitly call out exceptions for Indians and Blacks means that they felt that they would have otherwise fallen under the general classification of "men".
