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Aug. 12th, 2005 09:03 amPop quiz: Name this decision.
Who knew (or even took a wild-assed guess and came up with) Dred Scott v Sanford
If you ask me it pretty much gives the lie to things like this, "Mason said the U.S. government is interpreting its powers in such a way that passengers never intending to enter the U.S. connecting to international flights at U.S. airports must prove they are no threat and could be allowed to enter the country.
If passengers are deemed to be inadmissible, they have no constitutional rights even if later taken to an American prison. Mason told Judge David Trager that's because they are deemed to be still outside the U.S., from a legal point of view.
"Someone who's inadmissible is in the same category as the people that the CIA snatches and grabs from other countries," said Barbara Olshansky, a lawyer for the U.S.-based Center for Constitutional Rights, which is suing a number of U.S. officials on Arar's behalf.
"You are fair game for however executive branch wants to treat you." Flyers passing through U.S. have few rights, Arar judge told
That might give me pause, were I Mexican, or Canadian, and planning a tripp which passes through the US. because, "Fair game for the executive," sounds a little scary to me, and I'm a citizen. Then again, so was Richard Reid. He hasn't been tortured, so far as we can tell (mind you, per the Atty. Gen.s' office that means the've not caused pain consonant with organ failure or death, so...)
They promise they won't condone torture. They don't promise to let you sleep or eat, but torture (the real kind) that's not going to happen. Mind you Maher Arar might not have so sanguine a view about it, as he was in a Syrian prison for something like a year, and claims he was tortured. The US Gov't doesn't even deny that, not really. They take a more biblical view and wash their hands, after all, Syria ia a soveriegn nation.
On the plus side they did catch a guy trying to get onto a plane with a bomb. I'm sure it was easy, because we all know what they look like. This one was white, and a US citizen, but they caught him anyway.
But I digress.
Dred Scott is a favorite of those opposed to Roe v Wade and Balkinization is having a nice little conversation about that here, where the issue is substantive due process.
He points out the better parallel isn't Dred Scott, but rather the more recent decision, Kelo v New London (because they are both, at heart, sunstantive due process cases, relating to the taking of private property, and giving it to another private person) I've long held the case of Dred Scott was properly decided (apart from the silly aside where Taney tried his hand at "original intent," and muffed it something fierce, in the very passage which the Roe v Wade opponents quote, and misunderstand [that whole persons clause, which Balkinazation covers, so all I'd be doing is quoting, and you can read the swipe at Scalia for yourself).
The result (from that very referenced passage) was horrid. It served to unperson an entire people, and was used to keep them in a state of semi-personhood for another century. We are still working our way past it.
I'm digressing again (this was much more coherent before the computer crashed and all was lost. The stuff in the clipboard was, of course, gone too).
Dred Scott says we owe it to the residents of our territories (be the citizens or not) the same rights citizens have inside the actual borders.
Sadly there are decisions, relating to the land we took from Spain, which call some of that into question (it was held those territories were different, because they were taken, not incorporated, and so the full writ of the Constitution didn't really run there), but Dred Scott (that bogeyman) has kernels of hope, points we can cite to show that the Constitution is as big as those who like think it to be.
The U.S. was founded on some very big ideas, some powerful (and frightening) Ideals. The sovereignity of people, collected, was what made Gov't legitimate. It's a dangerous ideal, and has caused great strife (France, Viet-nam, Germany, Russia, Poland, Hungary, the United States, Bolivia, South Africa; all have had wars because of the manifesto we sent George the Third. That list of grievances turned the world upside down).
If we can keep those principles, as we defined them in the Constitution, we have a great thing. But we can lose them. All we have to do is let the Gov't take them back, one little bit at a time.
We have to recall what it was which made the Declaration of Independence needful, the thousand little slights which became too much to bear. If we remember soon enough, it shan't be needful to reclaim them the way they were bought the first time.
For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
Who knew (or even took a wild-assed guess and came up with) Dred Scott v Sanford
If you ask me it pretty much gives the lie to things like this, "Mason said the U.S. government is interpreting its powers in such a way that passengers never intending to enter the U.S. connecting to international flights at U.S. airports must prove they are no threat and could be allowed to enter the country.
If passengers are deemed to be inadmissible, they have no constitutional rights even if later taken to an American prison. Mason told Judge David Trager that's because they are deemed to be still outside the U.S., from a legal point of view.
"Someone who's inadmissible is in the same category as the people that the CIA snatches and grabs from other countries," said Barbara Olshansky, a lawyer for the U.S.-based Center for Constitutional Rights, which is suing a number of U.S. officials on Arar's behalf.
"You are fair game for however executive branch wants to treat you." Flyers passing through U.S. have few rights, Arar judge told
That might give me pause, were I Mexican, or Canadian, and planning a tripp which passes through the US. because, "Fair game for the executive," sounds a little scary to me, and I'm a citizen. Then again, so was Richard Reid. He hasn't been tortured, so far as we can tell (mind you, per the Atty. Gen.s' office that means the've not caused pain consonant with organ failure or death, so...)
They promise they won't condone torture. They don't promise to let you sleep or eat, but torture (the real kind) that's not going to happen. Mind you Maher Arar might not have so sanguine a view about it, as he was in a Syrian prison for something like a year, and claims he was tortured. The US Gov't doesn't even deny that, not really. They take a more biblical view and wash their hands, after all, Syria ia a soveriegn nation.
On the plus side they did catch a guy trying to get onto a plane with a bomb. I'm sure it was easy, because we all know what they look like. This one was white, and a US citizen, but they caught him anyway.
But I digress.
Dred Scott is a favorite of those opposed to Roe v Wade and Balkinization is having a nice little conversation about that here, where the issue is substantive due process.
He points out the better parallel isn't Dred Scott, but rather the more recent decision, Kelo v New London (because they are both, at heart, sunstantive due process cases, relating to the taking of private property, and giving it to another private person) I've long held the case of Dred Scott was properly decided (apart from the silly aside where Taney tried his hand at "original intent," and muffed it something fierce, in the very passage which the Roe v Wade opponents quote, and misunderstand [that whole persons clause, which Balkinazation covers, so all I'd be doing is quoting, and you can read the swipe at Scalia for yourself).
The result (from that very referenced passage) was horrid. It served to unperson an entire people, and was used to keep them in a state of semi-personhood for another century. We are still working our way past it.
I'm digressing again (this was much more coherent before the computer crashed and all was lost. The stuff in the clipboard was, of course, gone too).
Dred Scott says we owe it to the residents of our territories (be the citizens or not) the same rights citizens have inside the actual borders.
Sadly there are decisions, relating to the land we took from Spain, which call some of that into question (it was held those territories were different, because they were taken, not incorporated, and so the full writ of the Constitution didn't really run there), but Dred Scott (that bogeyman) has kernels of hope, points we can cite to show that the Constitution is as big as those who like think it to be.
The U.S. was founded on some very big ideas, some powerful (and frightening) Ideals. The sovereignity of people, collected, was what made Gov't legitimate. It's a dangerous ideal, and has caused great strife (France, Viet-nam, Germany, Russia, Poland, Hungary, the United States, Bolivia, South Africa; all have had wars because of the manifesto we sent George the Third. That list of grievances turned the world upside down).
If we can keep those principles, as we defined them in the Constitution, we have a great thing. But we can lose them. All we have to do is let the Gov't take them back, one little bit at a time.
We have to recall what it was which made the Declaration of Independence needful, the thousand little slights which became too much to bear. If we remember soon enough, it shan't be needful to reclaim them the way they were bought the first time.
