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Comment by ls612 | Hacker News Reader

That’s not quite right. The Bill of Rights originally only applied to the federal government, until after the civil war when the 14th amendment was passed. Since then the clause in that amendment saying no one can be deprived of life or liberty without due process has been interpreted to mean most of the bill of rights also applies to the states. This ruling said as much for the 8th amendment prohibitions on excessive fines.

Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.

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As a permanent resident who lives in the US, the idea that basic protections of law should only apply to citizens is terrifying. It's not the same outcome at all. Due process is afforded to "persons".

No country on Earth affords equal rights to citizens and non-citizens. If this "terrifies" you, I encourage you to reflect on your fears and whether some of them may be disproportionate to reality.

Parent said "protections" and referred to "due process", not the broader topic of "rights". So, yes, non-citizens don't, e.g., get to vote. On the other hand, if they get arrested, the same standards of evidence apply as for a citizen.

Germany provides many Basic Rights to everybody.

Others are only for citizens (and EU citizens, but via a strange legal method), but the most fundamental ones state "Everyone", not "every citizen".

Same with Sweden. For example, Allemansrätten (Freedom to Roam) applies to alla människor (or all people), not just citizens.

Right. It's mentioned in every tourist guide I've seen about Sweden, and it is drawing outdoor types to the country.

Smart move. :-)

So, in other words, Germany provides different rights for citizens and non-citizens. Which is what the GP was saying.

Not having basic protections for non-citizens would be rather worrying, but let's not act like the mere existence of a difference is worth freaking out about.

EDIT: To be clear, I'm not suggesting that Justice Thomas's concurrence not providing these protections to non-citizens would be a good thing. I'm just saying that 'non-citizens should have the same rights as citizens' isn't a position held by any country on the planet.

In the context of this particular case, it sounds like the ruling by the majority protects non-citizens from having their property taken by the police, while Justice Thomas’s concurrence would not.

In my opinion, not having your property taken unfairly by the police is more of a basic right everyone should enjoy, rather than a special right afforded to citizens like voting.

> No country on Earth affords equal rights to citizens and non-citizens.

That's fine, but affording no rights to non-citizens would be highly problematic. Some argue the Constitution doesn't protect the rights of illegal immigrants, for example, but it makes clear distinctions by using "persons" in some spots and "citizens" in others.

Persons have a right to due process. Citizens have a right to vote. The difference is very important.

> That's fine, but affording no rights to non-citizens would be highly problematic.

Which is why we have the status quo: the vast majority of rights enjoyed my U.S. citizens and residents are enjoyed by aliens, with some discretion.

The Constitution is really quite bad at making things clear. Arbitrary rhetorical flourishes became the turning points of precendential cases, because quill and parchment made it hard to express ideas clearly.

The average ruling in a single minor case today is longer than the entire Constitution.

Everyone should have basic protections, or "fundamental" rights. Those are things that exist as a matter of basic human decency. Nonbasic rights are more like privileges, and they can apply discriminately.

A relevant recent case: the 9th circuit allowed to stand a federal law that limits 2nd amendment rights for certain non citizens unlawfully present in the US:

"... The panel affirmed a conviction for possessing a firearm while being an alien unlawfully in the United States in violation of 18 U.S.C. § 922(g)(5)(A)."

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/08/15...

The basic protections do apply to both citizens and legal residents - the issue is, if convicted a non-citizen may have their right to abode removed, and be deported.

Quite recently, we have had two Presidents claim that non-citizens had no right to challenge their imprisonment by the United States (Bush in Gitmo and Obama on Bagram AFB in the Middle East) who ran smack into a Supreme Court that found their actions unconstitutional.

The notion that Constitutional protections cannot apply to non-citizens is simply not true, even when applied to non-citizens being held by the US off of US soil.

I understand this and I'm heartened that the Supreme Court majority continues to find that. I was getting at the distinction between what the majority ruled; that excessive fines are a breach of due process, which applies to all "persons", and the comment that Justice Thomas would have preferred to arrive at the 'same outcome' on the basis that it was a breach of the 'privileges or immunities of citizens of the United States’.

My point is that those are different outcomes, not the same; one protects me - a person in the US who is not a US citizen - and the other does not. The difference is also a furtherance of a generally authoritarian idea that non-US-citizens should have not equal protection under the law.

Speaking as another non-citizen, you should be concerned that something as important as protection of rights of non-citizens, hinges in its entirety on a very convoluted and non-obvious reading of the Due Process Clause of 14A.

In the case of non-citizens being held outside of any US jurisdiction, what court has standing to rule? Where would I file a case if I had one?

This reminds me a bit of the Roman concept of the pomerium. Anything outside of the arbitrary line deciding what was Rome and what wasn't, was "anything goes."

Nobody. But US military facilities are considered US soil and thus US jurisdiction.

In the SCOTUS rulings on Guantanamo, SCOTUS went further and stated that they would have ruled the same way if it had been a CIA facility instead of a military facility, so long as Cuba had granted the CIA permission to exclusively use the land for its own purposes.

Quite recently, we have had two Presidents claim that non-citizens had no right to challenge their imprisonment by the United States

No, the argument was that foreign terrorists and other non-state enemy combatants were not "subject to the jurisdiction" of the US legal system (because they weren't on US soil when captured, and as non-state combatants that weren't covered by any treaties to which the US was a party) and thus also not afforded its protections. However, as a matter of international law, a country generally has legal jurisdiction over any person physically present in the country, whether present legally or otherwise, excepting specific diplomatic personnel (as defined by local law or treaty).

This was the reason for holding them indefinitely in an military facility located in another country. However, under US law, military facilities are considered US soil, and so persons being held in US military facilities are subject to the jurisdiction (and protection) of the US legal system.

The 14th Amendment's Equal Protection Clause ("nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws") means aliens are afforded the same protections as citizens.

>aliens

I really hate that usage of the word.

No, it means that states must have a pretty good reason for treating aliens differently, but the fact that an act which would otherwise be within their power is federally prohibited when targeting citizens but not aliens—the outcome of a Privileges and Immunities basis for incorporation rather than the more historically common Due Process one—may itself be sufficient to allow a distinction.

I mean, your basic argument is that Thomas is just pointlessly making semantic disagreements with the majority that would have no effect on this or any other conceivable case because either basis for incorporation produces exactly the same result not only on the present case but all possible cases. While I have a low opinion of Thomas, it's not quite that low.

This reads to me as a way for the authors of the amendment to narrow any potential loopholes in the protection of the newly freed slaves at the time. All persons born in the United States are citizens of the United States. However, this says nothing about whether or not you are a citizen of the particular state you were born in. So potentially, a state could deny equal protection under the law (protections under state law or infringe upon federally protected rights) if this clause mentioned "citizens", rather than "persons". "Citizen" could be misinterpreted or (mal-interpreted) to mean citizen of the state in question. Additionally, it could apply to a non citizen resident/visitor of a state. If I am a citizen of Pennsylvania and am I work in New York, New York must provide me with the same protections under the law as they would provide a citizen of New York. The 14th amendment did not have immigrant aliens in mind but rather was narrowly focused on newly freed slaves who were before it ratification citizens of no place at all. So when we speak of "aliens", we must keep in mind that while it applied to "aliens" today, it was not meant to protect the rights of foreign "aliens" in particular.

I find this argument a bit weak. Ratification of an amendment is a big process and I find it hard to believe that no-one realized the implications of the 14th amendment beyond it's impact on former slaves. People realized the implications, and went forward with the text anyhow. Otherwise, you have to assume that everyone involved was just completely ignorant to the implications of the text written as is, which is a claim you'll need to provide a great deal more backing for me to believe.

The 13th, 14, and 15th amendments were specifically written for the special case of newly frees slaves.

The 14th amendment was ratified in 1868. The total population of the US in 1870 was around 38 million. The total number of immigrants was around 2 million. The slave population was around 5 million.

The implications of the 14th amendment are clear today and they may even have been clear then. Nevertheless the most pressing, most politically salient issue was the newly freed slaves. In one day (the day after ratification) the United stares gained 5 million new citizens.

I would not be surprised at all if the people involved at what time were a tad bit myopic, with respect to the problem at hand.

It is an assumption of ignorance on a massive and universal scale that is beyond reasonable. There is too many people involved to assume this was not considered. It's the same problem as assuming the moon landing was faked. The position that noone involved considered birthright centizenship beyond slavery is ludicrous. All those state legislatures, all those senators, all those house representatives, all their staffs plus the best legal minds available to the office of the president and your claim is not a single one of them realized birthright citizenship would apply to people who weren't former slaves? That is a ludicrous amount of doubt in human imagination.

EDIT: In fact in 1860, the us census measured 4.1 million people not born in the United States. Is your claim honestly that while the census actively measured this, not a single person realized what birthright citizenship would mean for the children of those 4.1 million non-natives?

Indeed. If they can successfully rebind the Bill of Rights as applied to states based on P&I instead of the due process clause, the Bill of Rights may evaporate for non-citizen immigrants. A state(i.e. Republican ones) may then pass discriminatory laws for which the Bill of Rights no longer applies against.

> may then pass discriminatory laws for which the Bill of Rights no longer applies against.

Cannot they already do this to some limited extent (and perhaps are even required to do so)? For example, laws concerning voting.

> Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.

Do you read anything into this? Is there a reason a justice would prefer to highlight the excessive fines provision over the due process protections?

Its guidance for future rulings in the lower courts.

Abortion. And immigration.

"This may seem like a minor niggling point. It's not.

The Court's recognition of a right to abortion has been rooted in the Due Process Clause. Thomas & Gorsuch's concurrences document their opposition to grounding substantive rights in that corner of the 14th am."

https://twitter.com/stevenmazie/status/1098242972162768901

"Thomas and Gorsuch announce that they would incorporate Bill of Rights through the Privileges or Immunities Clause, not the Due Process Clause. This is a wonky distinction, but one with huge stakes for immigrants. Due Process Clause protects “persons.” P or I protects “citizens.” "

https://twitter.com/imillhiser/status/1098238933719240704

Wouldn't this completely screw over corporations? Or do we have some other mechanisms that will continue to protect them from these abuses them but not other types of "persons"?

Corporations in general have the constitutional protections that people acting in a group have. Corporate personhood is just a convenient legal fiction.

For example corporations don't have a right to free speech because they are "persons" but because we extend the rights of the individuals who make up the group to the group itself.

> we extend the rights

The constitutional basis for that is not secure.

It's not obvious that your right to free speech extends to secretly paying someone else to speak.

If I leave an iPod in a public park playing a speech, the authorities can remove or disable the iPod, not a violation of my speech rights.

I'm pretty sure they can also remove you; what they can't do is remove you based on the content of your speech, but then again I doubt they can have a policy of only removing iPods playing political speeches with certain viewpoints.

RBG herself is well known to be in favor of a different grounding. If Roe is weakened or overturned, let's test that case on its merits.

The due process issue was tangential.

From the ruling[1]:

The court did not address the Clause’s application to civil in rem forfeitures, nor did the State ask it to do so. Timbs thus sought this Court’s review only of the question whether the Excessive Fines Clause is incorporated by the Fourteenth Amendment.

[1] https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf

> Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.

It's the same outcome in this case, but it is rather different in the broader effect; not all people subject to punishment by states are citizens of the US.

It's actually a different part of the same sentence.

"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."

For the curious, this is called the "incorporation doctrine".

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