Treating Foreigners as Persons: Why American Citizens Must Care
“Whoever digs a pit will fall into it, and a stone will come back on him who starts it rolling.” (Proverbs 26:27)
Since the debate over the Alien and Sedition Acts, passed by Congress in 1798, the people of the United States have been confused about the rights, immunities and privileges non-citizens enjoy under the Constitution of the United States. Those Acts were signed into law by President John Adams, a staunch advocate of God-endowed unalienable rights, and the Constitutional provisions intended to safeguard them. He was among those who advocated the addition of the first ten amendments to the U.S. Constitution, since known as the ‘Bill of Rights.’ Yet he signed into law a bill providing that, in the event of declared war between the United States and any foreign nation or government “all natives, citizens, denizens or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be Liable to be apprehended, restrained, secured and removed, as alien enemies,” as directed by the President of the United States.
This Alien Act was passed with the prospect of war with France in view. Since war never came—and it included a two year “sunset provision,” it was never enforced. However, the Sedition Act was enforced. In addition to legal sanctions against people who conspire to prevent the operation of duly enacted laws, it allowed for fines and imprisonment to be imposed on anyone who “shall write, print, utter, or publish, or shall cause or procure to be written, printed uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, with intent to defame the said government….”
The ongoing threat of terrorist attacks perpetrated by people involved with or inspired by violent Islamic Jihadist movements, involves the United States in a formally undeclared war, likely to be of indeterminate duration. President Trump’s imposition of a travel ban against people from countries he deems to be party to that threat brings those early Acts of Congress to mind. The Acts were in part a partisan response by the Federalist Party to criticism and demonstrations orchestrated by the Democratic Republican Party, driven by the latter’s support for the revolutionary movement that overthrew and executed King Louis XVI, establishing the First French Republic.
The Alien and Sedition Acts of 1798 never came before the SCOTUS. It’s unlikely that the broad scope and imprecise language of the Sedition Act would be upheld by that tribunal in our day. We cannot say the same of the Alien Act. In fact, we are living under a regime of law, so far upheld by the SCOTUS, that uses the rubric of “national security” to make foreigners deemed a threat to the United States liable to what amounts to punishment, in the absence of trial and conviction, once they become “persons of interest” involved in, associated with, or having knowledge related to, terrorist threats. Though such punitive treatment, imposed without benefit of indictment or trial, obviously suspends due process of law, many Americans, perhaps even a majority, believe it is permissible against foreigners, even if they think it is not permissible against citizens of the United States.
The U.S. Constitution does withhold from non-citizens the right to vote and hold office in the U.S. government. But in respect of the basic ingredients of due process, and equal justice under the law, the language of the U.S. Constitution makes no distinction between citizens and non-citizens. In principle, this should come as no surprise. When the people of the United States declared their Independence, and “assumed among the powers of the earth” their “separate and equal station,” they appealed to “the laws of Nature and of Natures God” for the authority that entitled them to do so. Those natural and Divine laws, being antecedent to all human governments, apply to all human beings.
If the people of the United States, in the conduct of their self-government, discard the authority “of Nature and of Nature’s God,” they cast aside the basis for their claim of sovereignty over themselves. And if there is no such lawful basis for their sovereignty, then the Constitution ordained and established by their authority has no basis in law. The United States would go from being a government of laws justly constrained and administered in respect of God-endowed right, to being a government by power, according to the whims of those with sufficient power to impose their will.
More perhaps than any nation in the history of mankind, the people of the United States are logically constrained to accord to all human beings the respect they rightly demand for themselves, as human beings—which is to say as “persons,” shielded from unjust treatment behind the image and likeness of God. Does this mean that they can take no extraordinary measure against the constantly impending threats involved in the insidious, unlawful war the violent Islamic Jihadists are waging against us? Of course not. But neither does it mean we can carelessly abandon our due regard for the right treatment of persons, mandated in our Constitution for them as well as ourselves.
We must be careful for own sake. When national security is invoked to deal with the ongoing emergency of an undeclared war, with no clear end point in view, the suspension of wholesome respect for Constitutional guarantees of right treatment under law must be narrowly construed and diffidently implemented. The cold calculus of necessity should drive our actions, not indiscriminately angry or resentful passions. War always involves some prejudice against the enemy, justified because of his declared intention to do us harm. But, even aside from the sacrifice of useful intelligence it might involve, indiscriminately abusing individuals because they come from or live among the enemy deprives us of opportunities to influence the minds and hearts of individuals subject to our enemy’s power, but otherwise open to our influence.
Finally, since the Constitution’s provisions for right and equal treatment under the law mostly refer to “persons,” we ought not to forget that, like the Sedition act mentioned above, that word applies generally to citizens and non-citizens alike. What if we carelessly relax our vigilant insistence on respect for the Constitution’s language, blithely assuming that it will only affect foreigners? What’s to keep would-be tyrants in our own midst from taking advantage of that precedent to turn the tables against us. Once “national security” trumps personhood, it may be used as the excuse to deprive any person of right treatment. Just like that, it can be turned against citizens, who are also persons capable of treason and sedition. Just like that, the Constitution is neutralized. The Executive will no longer require evidence to put any citizen in the crosshairs, under a cloak of “national security” impervious to judicial oversight.
Seeking security from one quarter, we would find our claim to right drawn and quartered from another, leaving us, as Benjamin Franklin warned, with neither liberty nor safety.
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