My Textualist Moment — the Use of the Words “Person” or “Persons” or “People” in Our National Bill of Rights

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4 Responses

  1. Jordan says:

    check out the reasoning in Verdugo-Urquidez (U.S. 1990), aliens are not “the people” but they are persons, accused, etc. re: 5th & 6th

  2. Joe says:

    The different terminology has some importance but with equal protection principles and Kennedy’s comment in his separate opinion in the case cited by the first comment:

    Given the history of our Nation’s concern over warrantless and unreasonable searches, explicit recognition of “the right of the people” to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.

    only so much. So, e.g., “the people” in the 1A very well might in some sense particularly apply to citizens or some larger class of people but not foreigners in respect to campaign contributions (they were treated differently in a post-Citizen United case, for instance), but foreigners still would have “1A rights” even then to some extent. Even if, quoting Stevens in the V-U case, we don’t read “the people” to cover “lawfully present.”

    The 9A, e.g., entails rights of “the people” in this country in some sense particularly, our traditions and practices affecting the determination, as compared to some collection of natural rights or whatever that might be developed elsewhere. Meanwhile, the basic protections of due process, e.g., would clearly be enjoyed by all “persons,” even non-citizens. Still, the 3A wording is interesting, including possible extraterritorial applications.

  3. Jordan says:

    concerning human rights and the Ninth Amendment, see, e.g., 60 Cornell L. Rev. 231 (1975)