October 4, 2003

WHEN TRANSNATIONALISTS ATTACK:

Foreigners' Rights in the Post-9/11 Era: A Matter of Justice (DAPHNE EVIATAR, October 4, 2003, NY Times)

[D]istinctions between citizens and foreigners are justified, says Viet D. Dinh, a law professor at Georgetown University and a former assistant attorney general at the Justice Department, where he was a principal author of the USA Patriot Act. Quoting the philosopher Edmund Burke, Mr. Dinh argues that order is a precondition to liberty, and that the war on terrorism is a means of defending liberty. "This war is fundamentally about an effort to restore international civil order toward people who would disrupt that order," he told an audience on Tuesday at the university during a debate with his Georgetown colleague David Cole. "When you adopt a way of terror, you've excused yourself from the community of human beings."

Some legal philosophers and critics hotly dispute this reading, however. "The rights of political freedom, due process and equal protection are among the minimal rights that the world has come to demand of any society," Mr. Cole writes in his new book, "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism" (New Press). He argues these are "fundamental rights" that are "owed to persons as a matter of human dignity;" they are, he continues, quoting the Supreme Court, "implicit in the concept of ordered liberty."

Whether everyone is born with certain "unalienable rights" or whether rights are bestowed by a particular government in a particular place and time is, in some ways, at the heart of the current debate. It has also been at the center of American constitutional history.

The founders believed that individuals possess "natural rights" granted by God. Still, the United States has repeatedly denied certain rights to foreigners. Beginning with the Alien and Sedition Acts of 1798, Congress declared immigrants from "enemy" nations ineligible for naturalization, and authorized deportation of those "dangerous to the peace and safety of the United States." The Enemy Alien Act of 1798 authorized the president to detain, deport or otherwise restrict the liberties of citizens of countries with which the United States is at war. And since the early 1900's, Congress has enacted a range of laws restricting the speech and political association of foreigners.

Some scholars like Mr. Cole reject the idea that certain rights are merely privileges that a government can grant to some and deny to others. Indeed, the international human rights movement and the treaties that have grown out of it over the last 50 years depend on a conception that all human beings share certain rights regardless of nationality or citizenship.


What a terrible lot of nonsense. The Constitution is exclusive on its face, beginning with a statement of who is covered by its provisions: "We the People" and proceeds to bar non-citizens from elective office and those not born here from ever becoming President, even if they do become citizens. Only those with a profound hostility to national sovereignty could read such a document to require that all living persons on the planet are entitled to identical treatment from the American system of governance.

Posted by Orrin Judd at October 4, 2003 6:24 AM
Comments

"Some scholars like Mr. Cole reject the idea that certain rights are merely privileges that a government can grant to some and deny to others. Indeed, the international human rights movement and the treaties that have grown out of it over the last 50 years depend on a conception that all human beings share certain rights regardless of nationality or citizenship."


In this context, the "international human rights movement" means Europe, of course. Rather than waste time arguing on principle, why not urge all those American ex-pats to lay a collective legal claim to those juicy state pension and other benefits? Derrida and his buddies and the EU have made it clear they consider those to be part and parcel of human rights.

Posted by: Peter B at October 4, 2003 8:42 AM

Ever notice how when you try to vindicate the most basic rights--like freedom for Iraqis--that entire human rights community opposes you?

Posted by: oj at October 4, 2003 8:57 AM

For the left, rights are protean, which means they don't really exist at all in any concrete way. The best I've seen in a while is the opening salvo from the Guardian in yesterday's post on how Iran somehow has a right to nuclear weapons because the US has them.

Although, to be even-handed, I'm still in awe of all the implications of PJ's property rights in his telephone bell. :)

Posted by: Peter B at October 4, 2003 9:23 AM

The next wave of "rights" creation for illegals will include the right to vote - just watch.

Posted by: jim hamlen at October 4, 2003 12:07 PM

Of one thing we remain certain--there's nothing easier than to whip voters up into an anti-immigrant frenzy. It would be great politically for the GOP, but the effort to extend voting rights would not only be bad politics but bad policy on the part of the Democrats, especially because it would provoke that exact response.

Posted by: oj at October 4, 2003 12:10 PM

In the later years of the Kingdom of Hawaii, non-citizen Americans could vote, but Chinese born in the Kingdom could not.

The results were interesting. It put elections in the hands of non-citizen Portuguese immigrants.

Posted by: Harry Eagar at October 6, 2003 11:39 PM
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