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Comment by i_dont_know_ | Hacker News Reader

I've heard people say the US constitution lays out limits of what the US government can do, as opposed to rights of US citizens.

So, if the US government wants to hold you in detention, they have to tell you why, not because you have that 'right', but because they are bound by law to do so in all circumstances irrespective of what passport you're carrying.

Again, I've only heard this before -- I'm not at all a legal scholar. Can anyone confirm or deny this interpretation and possibly give more reading material around it?

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(Sorry, no links, but this is fairly uncontroversial US history:)

There was a big debate around the bill of rights. Proponents felt it was essential, because otherwise the government would violate those rights. Opponents either didn’t feel this was a justified fear, actively wanted more state power, or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people.

That last objection was the basis for the Tenth Amendment.

That said, in practice, what the government can and can’t do is decided not by the text of the Constitution but by the string of precedents that control its legal interpretation.

In other words, reading the Constitution gives you at best a very basic intuition of how the US political system works, and this intuition will often be very very wrong.

So, you’re theoretically right, but it doesn’t affect the practical reality on the ground even in principle.

While true, if the constitution is not fulfilled in the eyes of the citizens, it can just flush all those legal governmental proceedings down the toilet, including the whole body of government. Some even argue it to be their duty.

That is the basis of every democracy. Consent of the governed and all that.

<tin foil on> Supposedly democratic governments learned a few tricks on how they could manipulate the opinions of the governed to avoid being thrown out. Some fear works. Wars, too (that is, when at war people will cut their government extra slack), so they claim wars on {drugs,terrorism,...}.

They also leverage mass media. This is not a relationship of control, just symbiosis: fear is still pretty easy to sell. <tin foil off>

>or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people.

Which is the situation we're in. If you don't have a positively asserted specific legal right, it doesn't otherwise exist, except in how limited your behaviors are by law.

"The sky is the limit" vs "the limit is the sky"

The first ten amendments are literally called the "Bill of Rights". It limits what the government can do because doing so would be in opposition to the rights of US citizens.

"Rights of citizens" and "limits of government" are two sides to the same coin.

Edit: should have used “person” rather than “citizen”. I was mirroring the verbiage used by the OP and should have been clearer. E.g. non-citizens are still granted Miranda rights

I think GP is asking whether these are limits in government as compared to all people or limits against only US citizens.

Exactly

This question has been debated and discussed often, especially since the “wars” on drugs and terror (with similar results). The truth is that the constitution protects all people in MOST cases, but not all. (0) It’s a complex answer and, as someone else mentioned, things change by case law (court decisions) all the time.

Note that if someone is being charged as some type of combatant or intelligence operative, they will have very few “rights” and apparently can be held for a very long time (see Gitmo).

0. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?a...

Thank you! Just what I was looking for :) Though I get sadder the deeper I read

"Citizen" is never mentioned in the Bill of Rights. It's all "The Government shall make no law" or "the people" or "the accused" which apply equally to any other person within the United States. Even undocumented immigrants are protected by the Bill of Rights and legal non-citizen residents certainly are.

The question is whether the Bill of Rights ends at US border from what I understand.

Well, one might expect the exercised powers of the US government to end at the US border...

I think /u/ReptileMan is talking more about situations like border crossings, where the Border Patrol claims some rights don't apply because you haven't been granted entry yet, even though you're technically on US soil.

There are also questions about scenarios like https://en.wikipedia.org/wiki/Anwar_al-Awlaki, where a US citizen was executed by the US without trial while overseas.

I think it’s a bit more complicated than that. I think the issue is whether those rights apply to non-citizens outside the border.

I think it’s generally well established that rights travel abroad with citizens. However, it’s less clear if they apply abroad (or even to U.S. territories) to non-citizens. E.g. United States v. Verdugo-Urquidez claims it does not apply to non-citizens who do not have a voluntary association with the U.S.

Edit: I'll try to be more clear. The rights of U.S. citizens extend beyond the border when dealing with the U.S. government. I was not implying other governments must recognize U.S. Constitutional rights when dealing with U.S. citizens.

Interestingly enough, the phrasing in the article implies that the Justice Department is arguing that speech made outside the US is not protected, not simply speech made by non-citizens.

I would be incredibly surprised if that argument held up.

See Anwar al-Awlaki for some evidence of how the US applies constitutional rights to citizens abroad when they are considered enemies of the state

Was that legally supported? I think it just wasn't challenged

ACLU challenged with multiple cases. As far as I know they were dismissed

https://www.aclu.org/cases/al-aulaqi-v-obama-constitutional-...

https://www.aclu.org/cases/al-aulaqi-v-panetta-constitutiona...

Heck, there is a question about whether the Bill of Rights even makes it to the border, given the existence of border checkpoints as much as 100 miles from said border.

https://www.aclu.org/other/constitution-100-mile-border-zone

No disagreement here. I should have used “person” rather than citizen. I made the distinction in my other comment

But it's not framed as "rights of citizens" in the actual wording of the Constitution (it was intended to be, yes, but that's another topic).

For instance, the first amendment doesn't say "All citizens have the right to...", but rather says "Congress shall make no law..." Subtle difference, but important.

Similarly, other parts of the bill of rights refers to "people", not just citizens. Generally, for issues that happen entirely within the United States, it's interpreted to really mean "people". So if you're in the US on a work visa and get arrested, you are allowed to plead the 5th and it's supposed to be honored.

It gets weirder when events aren't entirely contained in the US. If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution? If so, does that come from my passport, or from the fact that the US government just isn't allowed to do that to anyone, period?

That's more what I'm asking.

>If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution?

If you are a citizen, yes. If you are not, there’s at least some precedent that the answer is no.

I’m curious to your perspective on the subtle difference in wording. What does this difference impart legally? To me it feels like a distinction without a difference

Edit: after having my morning coffee, I realized an important distinction is when the U.S. citizen is considered a combatant. See Anwar al-Awlaki, where the government stated, "We do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action", although it looks like the specific details about their opinions on his 4th amendment rights were not clear due to redaction. [1]

[1] https://www.washingtonpost.com/world/national-security/legal...

Someone has linked to a really nice legal review somewhere up in the comments, so my question is mostly answered now... but to answer your question about what I see as a difference in wording above:

If the law said "All citizens have the right to express their opinion" then a law saying "Non-citizens expressing their opinions will be punished" is OK.

If, on the other hand, the law said "Congress will not make any laws restricting the expressing of opinions" (closer in wording to what we have) then a law saying "Non-citizens expressing their opinions will be punished" is no longer OK.

Thanks for clarifying. In addition to your point, it sounds to me that the clarification is already built into the specific wording, since the Bill of Rights doesn't use the word "citizen" as you previously stated.

In general, the individual liberties set out in the Bill of Rights apply broadly to all people, in all their interactions with the US government. The Bill of Rights does not use the word "citizen," but does in several places use the broader term "person." For example,

> 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;

It also uses the phrase, "the people." For example, in the 4th 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.

In the case of the 1st Amendment, which concerns freedom of speech/religion/the press, it appears to be a general prohibition on government interference with freedom of speech, with no specification of whose freedom of speech is meant:

> 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.

They are inalienable rights first. It has nothing to do with citizenship. If I'm on US soil then I have (roughly) the same right as a US citizen. That's what so great about the Bill of Rights. (note there some specific clause for US citizens but they are labelled as such eg US president etc)

It should also be noted that historically these were restrictions on the federal government only (see Barron v Baltimore). This is a pretty important distinction since states were not limited here. In practice most states have their own constitution which generally follows the federal constitution to some extent.

Of course after the 14th Amendment was passed the legal theory of selective incorporation under the Due Process clause was developed in the early 20th century. Interestingly we are still in the process of incorporating the first eight amendments to the states 150 years later; e.g. the second amendment is the most recently incorporated amendment, the third still hasn't been incorporated though.

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