Thursday, January 06, 2011

The constitution protects the rights of ... who?

Okay, consider this a High-School Civics Test.

No wait! It's a Supreme Court challenge of the most basic precepts of the Constitution of the United States!

Is there any difference between the two questions? Should there be?

The first .. the Civics test... wonders what we are teaching our new citizens today.

The second .. the SCOTUS .. wonders what we will be teaching our new citizens "tomorrow".

And who are our "new citizens"? Does this include only the children of today's citizens, or does it include naturalized citizens? Resident Aliens? Temporary (but legal) migrant workers? Illegal aliens?

Who is granted (acknowledged?) protections under the Constitution of the United States of America?

Let's look at the First 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.
This enumeration of "our" rights; acknowledges freedom of religion, freedom of speech and of the press, freedom to gather ("in protest?") and to petition.

Who is here granted the right to worship as he or she pleases? Is it only natural born citizens? Natives or Naturalized? Immigrants, visitors, interlopers?

Who has the RIGHT to march with a La Raza flag and sign on our nation's streets?

Who would deny ANYONE that right, in America?

How about the Fifth Amendment?

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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Who is protected against Double Jeopardy? Who protected from being impelled to bear witness against himself? Who may be imprisoned without a trial, or be deprived of his home?

For that matter, in regarding the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Who is protected, constitutionally, against unwarranted search and seizure?

In America today there are many definitions of "The People", and it is so confusing that you and I are sometimes not only not certain who constitutes "The People", but we have no clear guidance, especially in the Constitution, to define what this body of people may be.

Sure, we have amendments to ascertain and define that much of the 14th Amendment was composed to address this question:

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This may be a clear and definitive description of those people whose rights under the Constitution may be applied: namely "citizens of the United States and of the State in which they reside".

That last part may be confusing to you, though. It is to me.

Should we assume that the only persons resident in the United States who are "citizens" enjoy the Constitutional Rights here defined?

For example, if a person is not a Citizen (either natural born, or naturalized),. may he publish a newspaper, meet with his neighbors to discuss Important Issues, freely practice his chosen religion, and be free from warrantless search?

Or do those who do not have the right to define themselves as "Citizens" not also have the right to enjoy constitutional guarantees?

I draw your attention to the Second Paragraph of the Declaration of Independence:

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,
Do "all men" find themselves under the protection of the Constitution, regardless of their legal status? We have generally accepted that certain classes of men .. felons, the insane, children who are too young to exercise the judgment which comes from maturity and experience .. may not be either entitled or competent to enjoy certain rights, at least until their individual situation changes.

But if "all men" is no more limiting than that "all men" be sane, mature and responsible people, and if these rights are ordained by God and not by The State .. .then do all Amendments of the Bill of Rights apply equally? Isn't this the basis of our American Society.

(Note that the 13'th, 14'th, 15'th and 19'th Amendments include more classes of people who have the right to vote ... does this define "citizen"? Is it the sole criteria of :people who are (citizens / legally resident . otherwise not legal, but resident) in the United States who are granted the "God given" right to liberty ... by The State?)

We who demand an all-encompassing "Individual Right" according to the Second Amendment have been vocal for decades in demanding that right be applied "universally", because it is a "God-given Right" and not 'granted' by the state.

But now we find ourselves having to deal with the question: what of a person who is a legal resident is not a "Citizen". Does the Second Amendment apply to him as well and as thoroughly and as definitively as it applies to "us"? We who may have born in this great country? Those whose most enduring monument is the Stature of Liberty, which enduring motto includes the phrase: "Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door."

How high do we lift that lamp; how many are TRULY welcome through that golden door?

Many of us are disrespectful of the American Civil Liberties Union, because it has presented and argued against issues which we intuitively believe should stand without need for defense. We believe that our definition/interpretation of the Constitution is obvious.

But is it?

Those of us in that assumptive group also believe that the Constitution is a rigid uncomprimising traditional, uncontroversial body of law, and those who disagree with our interpretation should, if they are sincere in their controversial beliefs, be willing to mount a movement to change the Constitution, rather than to "re-interpret" it to meet the "Interpretation De Jour".

Now we are met with an issue which challenges our most sacred beliefs, and to our astonishment we discover that there are multiple interpretations which may not both be true in accordance with our individual belief systems.

ACLU Sues to Protect Immigrant's Gun Rights From Change in South Dakota Law -

We are here challenged to decide whether the constitution as written may be interpreted to deny Constitutional rights to (legal) residents who are not Citizens.

That is, specifically, the 2nd Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
That statement is obviously NOT worded to include issues of citizenship, or membership in any definitive body: The "Collective Rights" folks, who we have opposed for so long and have attempted to define it as supporting a governmentally sponsored, say that it has nothing at all to do with the citizenship of the individual, as long as that individual is a member of the "army:". We, however, have rejected that interpretation, and made it clear that it is an INDIVIDUAL right irrespective of support from the State.

(But are we really that sure about this point?)

And .. what individuals may legitimately lay claim to this right?

The egregious Dred Scott decision, made by the Supreme Court of the United States, includes may arguments (and they of the SCOTUS were then honorable men) discussing how and why Negros would not and should not be counted as 'citizens'; not the least of which is that they were NOT entered into the country as 'immigrant's, willingly, but that they were universally brought into the country as "property".

Also, and this is the most frequently quoted portion of the judgementl we should consider it a 'telling' reflection of the bias of the SCOTUS at that time (although we are assured that the current SCOTUS has no comparable bias or 'hidden agenda': (quoted directly from FINDLAW):

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
So we are given directly from history the most awful ruling of SCOTUS , based entirely on race and the dubious but well defined principle of "involuntary servitude" which is deemed not to qualify a human being for consideration under the Bill of Rights because .... come ON guys! .. the dude didn't want to be here in the first place, so why should we give him the same consideration which is naturally ceded to those folks who WANTED to be here?

(This argument, given the time in history, carefully avoids the question of "involuntary servitude" which may or may not characterize the ancestors of not a few men who were arguing the case .. and judging it.)

I ask you once again.
Upon what basis would you deny a person, who is resident within the geographic boundaries of the United States of America, the right to the full protection under law of the Constitution of the United States of America? Any clause, any amendment, any nuance?

If Dred Scott was denied Constitutional Protection because he was not a "voluntary immigrant", then what of the rights of those who are today "voluntary immigrants"?

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