Who Deserves Liberty?

| Thu Aug. 11, 2005 3:19 PM EDT

Over at QandO, Dale Franks says: "The bottom line is that, if you are a foreigner, and if you intend to reside in this country, then those of us who are already here have a perfect right to boot you out the moment you displease us."

That doesn't seem quite right.

Franks was discussing a bunch of proposed British laws that would authorize the deportation of any "non-citizens" found guilty of "fostering hatred" or "glorifying terrorism." The law wouldn't apply to British citizens who, of course, have the freedom of speech and association. So is this distinction between citizen and non-citizen tenable, especially here in the United States? Franks says yes; I would say no. For starters, at least here in the U.S., we're treading on iffy constitutional grounds: Basic rights such as due process, equal protection, and the freedoms of speech and association should, in theory, apply to all "persons" within the United States, not just citizens. I'd go further: the fact that non-citizens cannot vote often makes it more essential that they be afforded protections under the law. This was James Madison's murmur-provoking view—"Aliens are not more parties to the laws, than they are parties to the Constitution"—and most federal courts have by and large agreed with Madison, although the current Supreme Court has obviously wavered.

But set aside the constitutional issues, or let the lawyers duke it out. Pragmatically, does it make sense to restrict the rights of non-citizens? David Cole, who would no doubt be vigorously shaking his head right now, has warned: "Our own historical experience with restricting fundamental rights on the basis of citizenship"—an experience that includes Dred Scott—"should give us pause." He quotes Yale law professor Alexander Bickel, who makes a philosophical point: "A relationship between government and the governed that turns on citizenship can always be dissolved or denied [since] citizenship is a legal construct, an abstraction, a theory." I don't think we're in immediate danger of anything dissolving, mind you, but it's worth thinking about. We make our government a government "of the citizens, by the citizens, and for the citizens" at our peril.

A more practical concern is that alienating non-citizens—by, say, restricting their free speech rights, on pain of deportation—could, in theory, make those communities less likely to cooperate with law enforcement in rooting out terrorist cells. Especially, as was the case after 9/11, when most of the non-citizens rounded up and detained are never even charged with a crime and, for all we know, not guilty of inciting anything. Another worry, and this ought to concern even those who don't think "foreigners" deserve rights, is that limiting the rights of non-citizens almost always sets a disturbing precedent for limiting the rights of citizens. Exhibit A: Yasser Hamdi, Exhibit B: Jose Padilla. Two U.S. citizens held indefinitely, under "wartime powers" that, as the president assured us in the heady Arab-hunting days after 9/11, were intended to apply only to "foreigners." Then we have the historical precedents, again, citing David Cole:

The line between alien and citizen has often been crossed before. In fact, two of the most shameful episodes of our nation's history also had their provenance in measures initially targeted at non-citizens. The McCarthy era of the 1940s and 1950s, in which thousands of Americans were tarred with guilt by association, was simply an extension to citizens of a similar campaign using similar techniques against alien radicals in the first Red Scare thirty years earlier. The earlier Red Scare, which culminated in the arrests of thousands of aliens for their political associations during the Palmer Raids, was coordinated by a young J. Edgar Hoover, then in the Alien Radical division of the Justice Department. Hoover applied what he had learned in the first Red Scare to U.S. citizens during the second Red Scare, which targeted thousands of them.

The same pattern underlies the internment of U.S. citizens of Japanese descent during World War II. Since 1798, the Enemy Aliens Act has authorized the president during wartime to arrest, detain, deport, or otherwise restrict the freedom of anyone over fourteen years old who is a citizen of the country with which we are at war, without regard to any actual evidence of disloyalty, sabotage, or danger. The justification for that law, which the Supreme Court has upheld as constitutional, is that during wartime one can presume that citizens of the enemy country are loyal to their own country, not ours, and that there is insufficient time to identify those who are actually disloyal.

In World War II we simply extended that argument to U.S. citizens through the prism of race. The Army argued that persons of Japanese descent, even if they were technically American citizens because they were born here, remained for all practical purposes "enemy aliens," presumptively likely to be loyal to Japan.

Now granted, some might think that locking up communists is just peachy, but it ought to give civil libertarians a moment's pause. A government that can restrict the rights of non-citizens has all the tools it needs to do the same to citizens. Honestly, I won't go so far as to say that no liberties can ever be restricted in the name of security, but I will say that the sort of double-standard Franks proposes, and the distinction between the basic rights of citizens and basic rights of non-citizens, seems wholly untenable to me.

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