Unfortunately, I’m running short on time, so this post will have to be the beginning of an idea, to be explored in more depth later. In brief, then:
This past Sunday, Senator Jim DeMint (R-S.C.) squared off against Claire McCaskill (D-MO) over Obama’s response to the (thankfully foiled) Christmas Day airline bombing. DeMint appeared to repeat, as if by rote, the best of the last ten years’ of Republicans’ talking points, rather than actually engaging Senator McCaskill on the merits. Consequentially, McCaskill acquitted herself quite well.
Only one point bears further response: DeMint’s oft-repeated argument that terrorists do not deserve to be treated with any of the rights accorded American citizens.
This argument mistakes the place of rights in American society. We as citizens do consider our constitutional rights to be entitlements, holdovers from that sovereignty ceded to the United States at the Constitution’s ratification. That’s partially correct, but it’s not the whole picture. While ancient notions of rights did limit them to citizens (Paul’s “civis Romanus sum” wouldn’t have worked were he not a citizen), American democratic theory adds a further gloss. Rights don’t exist simply because citizens deserve them, but because oppressive government is an evil, the restraint of which is its own virtue.
I don’t speak in the legal sense, but in the rhetorical. The Founder’s mortal fear of government transcended concerns for citizens alone: government power is a danger that, directed externally, still threatens those who reside within its protection, for a minor change in the target of government power is the only difference between military prowess and tyranny. It’s for that reason that the Founders, who knew how to contain rights to citizens alone (see U.S. Const., Art. IV, § 2, cl. 1), drew the Fifth Amendment’s due process clause to sweep within it any “person” (“No person shall be… deprived of life, liberty, or property, without due process of law”).
The Magna Carta had the seeds of this idea:
To no-one will we sell or deny of delay right or justice.
And although medieval England, a deeply hierarchical society, probably didn’t intend those words to be taken literally, we should probably strive to improve on feudal notions of law.
As a matter of practicality, we can’t afford non-U.S. citizens all the rights of citizenship. No-one argues that we should. But the Founders’ conception of rights, and the danger of government power, expressly disclaims a world in which a government is only a danger to its citizens when it acts directly upon them. I’ll develop this thought more later.