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We The People a.k.a. Americans Only

By   /  November 27, 2014  /  No Comments

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“We the people” is a term largely taken for granted within the United States. The Constitution’s Preamble first introduced American’s to this term in September 1787 stating,

“We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” U.S. Constitution

By referring to we the people, one could deduce that certain powers are reserved by the people including Article I and the First, Second, Fourth, Ninth, and Tenth Amendments. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). The interpretation of the word “people” has resulted in heated debates amongst American citizens.  To apply the Constitution to the laws of the states and the nation, we must define this vague and ambiguous word. Gouverneur Morris, who helped draft the Constitution, was the individual who decided to use the term “we the people” instead of “we the states.” The American Civil Liberties Union has suggested that the framers simply used this term to avoid any rhetorical redundancy. Brief for American Civil Liberties Union et. Al. as Amici Curia 12, n.4. However, the Constitution originally was interpreted to protect only white males who owned property. Eventually, non-property owning white males, women, American Indians, and African Americans were viewed to be protected under the Constitution.  It was Thomas Jefferson who informed us that the Constitution should be interpreted with the progression of time by stating, “I am not an advocate for frequent changes in laws and constitutions but laws and institutions must go hand in hand with the progress of the human mind.”

Determining the definition of the word “people” not only informs us of who is protected under the Constitution but also who is not protected. In a world where terrorism is afoot, our Government must be able to establish a bright line rule as to where protections extend. Individuals who are citizens of foreign nations were not intended to be included in “we the people.” While it is evident that all citizens are protected under the constitution, it has also been held that lawful, resident aliens enjoy the same Constitutional protections. 8 U.S.C. § 1101(a)(2).  Chief Justice Rehnquist has also had the same view that any aliens inside of this country enjoy the same protections of the citizens. United States ex. rel. Turner v. Williams, 194 U.S. 279, 292 (1904).

Significant case law supports the position that the protections given to the “people” do not extend to aliens. In Emmanuel, the court stated, “Aliens do enjoy certain constitutional rights, but not the protection of the Fourth Amendment if they have no previous significant voluntary connection with the United States . . .” United States v. Emmanuel, 565 F.3d 1324, 1331 (11th Cir. 2009).  While the Eleventh Circuit relied on a previous significant voluntary connection evaluation, the Fifth Circuit in Hernandez relied on the Verdugo-Urquidez test. Hernandez v. United States, 757 F.3d 249, 263 (2014). The Verdugo-Urquidez test determines whether an individual will be included as a person if they “are part of the national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” Verdugo-Urquidez, 494 U.S. at 265.  In Hernandez, a United States Border Patrol Agent shot a fifteen-year-old Mexican citizen. Hernandez, 757 F.3d at 255. After the parents of the deceased attempted to sue on multiple grounds, it was determined that the boy had no sufficient connection to the United States to invoke protection under its Constitution. Id. at 266.  Illegal aliens within the United States have also been excluded from “we the people.” United States v. Portillo-Munoz, 643 F.3d 437, 442 (2011) (holding that the Second Amendment did not apply to illegal aliens).

Some individuals may ask the question, why can we not apply “people” to include everyone? Who are we hurting by incorporating everyone into this ambiguous word? In Verdugo-Urquidez, the United States Government wanted to apprehend the leader of a large, violent drug cartel who had been supplying to the United States. Verdugo-Urquidez, 494 U.S. 259, 262 (1990). While the Drug Enforcement Agency (“DEA”) had a warrant for Verdugo’s arrest, they did not have a search warrant for his multiple residences in Mexico. Id. The court correctly held that Verdugo’s Fourth Amendment right was not violated because he was not within the definition of “people” that the Fourth Amendment protects. Id.  While it can be said that the DEA should have obtained a warrant to search the residences because it is uniform procedure, there is no indication that foreign nations would even uphold a warrant from a United States magistrate.

Interpreting “we the people” to apply only to American Citizens and individuals with substantial ties to the United States only makes sense. The Constitution was written to protect the citizens within its borders, not every individual who feels violated by the United States Government. As stated above, “we the people” is only incorporated in certain Amendments which provides that the rest of the Constitution would apply to all individuals within the United States and would not require the Verdugo-Urquidez analysis.


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