By Dave Anderson:
Just a quick reminder from Scott Lemiuex about the 'seriousness' of the anti-trial, anti-Constitutional, anti-Magna Carta advocates in America:
People arguing that civilian trials are never appropriate for terrorist
suspects are arguing from a position well
to the right of the Bush administration (at least the 2006
version.) And if you have less respect for due process than the Bush
DOJ...I think this point makes itself.
Eugene Volokh tossed an interesting bit into this discussion last year when he pointed out that James Madison -- yes, THAT James Madison -- was of the opinion that non-citizens could expect the same constitutional rights and protections as citizens.
ReplyDeleteAgain, 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.
http://volokh.com/posts/1235007104.shtml
Those who argue otherwise are painting themselves into an indefensible legal corner.