First they came for the communists, and I did not speak out—because I was not a communist;
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist;
Then they came for the Jews, and I did not speak out—because I was not a Jew;
Then they came for me—and there was no one left to speak out for me.

–Pastor Martin Niemöller

The claim that the “Constitution doesn’t apply to foreigners” didn’t begin with the Bush administration, but it gained a lot of momentum under it. So much so that I would guess everybody reading this article (thanks to both of you) has heard that claim multiple times and may even believe it to be legally sound. It isn’t.

The Constitution covers a lot of ground, so I am not going to pretend to offer a treatise on each provision that may or may not apply to foreigners. Instead, let’s keep this to the context in which the claim currently is being made in the news- that foreign terrorists have no constitutional rights under any circumstance.

First, let’s begin where any constitutional analysis should begin- its text.

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