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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Much ado is being made of Fred Barnes’ article claiming that if Coakley loses, Senator Kirk, the interim Massachusetts (not Massachusettes, Martha) Senator, would cease to be a Senator immediately upon the closing of the polls.
Barnes’ claim is apparently being taken at face value by much of the blogosphere. Keep in mind, first of all, that it is Fred Barnes making the claim (he is right about as often as Ben Affleck makes a good movie- it can happen, sure, but when it does, admit it- you are surprised). Also keep in mind, the “source” for his article is an unidentified group of Republican attorneys. Well of course they think Kirk loses his seat immediately. They are charged with promoting their client’s best interests so long as they have a colorable legal claim. They aren’t charged with weighing all information and coming to the fairest reading of the law.
As is frequently the case, the legal “answer” isn’t immediately obvious (and may actually favor Democrats in this instance).
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