Who are “the people?”

My previous post said that some courts have held that the Second Amendment does not apply to illegal aliens in part because they are not part of “the people” described in the Constitution.  Why should we think that “the people” is a term of art rather than just a plural for person?

Here’s how the Supreme Court explained this in United States v. Verdugo-Urquidez:

The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law … abridging … the right of the people peaceably to assemble”); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words “person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

If we go back further, Dred Scott said that “the words ‘people of the United States’ and ‘citizens’ are synonymous terms.”  As far as I know, this was the first judicial statement on the issue, but this cannot be the only definition of “the people” in the Constitution, as that would mean legal aliens are not protected by the Second or the Fourth Amendment.  On the other hand, legal aliens do not vote for members of the House of Representatives, which would support the narrower view of what “the people” are. Note that the definition given in Verdugo-Urquidez (and repeated in Heller) does not cite any Founding-era materials.

Here is one last conundrum.  In incorporating the Second and Fourth Amendments, the Court held that these rights are fundamental, implicit in the concept of ordered liberty, etc.  If so, how can they not apply to illegal aliens?  Are there two kinds of fundamental rights?  Some apply to illegal aliens (say free exercise of religion) and some do not?  Perhaps one should say that any incorporated right applies to everyone, whereas unincorporated rights do not.

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2 Responses

  1. Shag from Brookline says:

    Is the self-defense aspect of the 2nd A per Heller and McDonald not available to aliens, legal or illegal? Does Scalia’s dicta of limitations in Heller include any reference to aliens, legal or illegal? Perhaps some might consider the illegal alien (who may have children who are U.S. citizens) somewhat like the felon listed in such dicta. Or in anticipation of Brett’s view, is an illegal alien on a par with an invading force? Are inalienable rights universal or limited to America and its “people,” however defined?

  2. Joe says:

    The “sufficient connection” test does not seem to be automatic – a traveler spending the night at a NYC hotel on the way from Mexico to Canada who is a foreign national doesn’t seem to meet it. Thus, undocumented aliens are not the only people at issue here. I think equal protection and the rights of “persons” covers most of the ground here, though things might be a bit unclear, putting aside Scalia’s belief things are “unambiguous” here. Such “unambigous” text in Scalia’s view does not require an appeal to history to clarify.

    The reach of the opinion’s language cited (V-U) is unclear. Justice Kennedy, the likely fifth vote here, said he concurred, but noted:

    “I cannot place any weight on the reference to “the people” in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. 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. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of “the people.” ”

    As to voting for the House, Heller does separate that usage of “the people” (though an individual right is at issue there too — “the people” having a right to vote for the members of the House following state rule) from those in the BOR.