Who does the Fifth Amendment really apply to?

Have you read the Fifth Amendment to the U.S. Constitution lately? If not, take a look, with a little added emphasis on two key words:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As I read the Fifth Amendment, I see mention of “persons” but no mention of “American citizens;” however Patrick Dorwin of Badger Blogger, who clearly eschews a literal interpretation of the Constitution, seems to think the Fifth Amendment only applies to American citizens:

I understand that this terrorist has already “lawyerd-up” and is exercising his “right” to remain silent, even though he is NOT AN AMERICAN. Don’t you feel safer now that Barry and his crew are running things?

Personally, I’d love to hear Patrick Dorwin’s definition of a “person,” because my definition of a person isn’t exclusive to only those who happen to hold American citizenship.

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33 thoughts on “Who does the Fifth Amendment really apply to?

    1. No I haven’t; I’ve made the case that even non-citizens deserve some measure of Constitutional protections, since the Constitution doesn’t specifically state that it applies to citizens only.

  1. The Constitution doesn’t apply to non-citizens and I’d love to hear somebody argue otherwise. The “smoking gun” here, the word person could use a little context, huh? How about a document quite literally framing the context of the Constitution, the Preamble:

    We the People of the United States,…

    There’s your definition of person.

    If you think the Fifth applies to foreigners, then it follows so do the rest, right? Like how about 19? We should go into Saudi Arabia & force them to allow women to vote, right? And of course Washington can collect income taxes from foreigners. How about the 2nd? We should see to it that the Japanese are allowed to own firearms, right? Of course not.

    The U.S. Constitution is the governing document for the United States. We choose to grant some of rights to non-citizens because there are times where it is appropriate, “right” or fair to do so but are under no obligation to do so.

    1. Of course it applied to foreigners during the great migration to the US. No one can say otherwise. Locke, how can you say it did not?
      There have been exclusions like slaves, women, the Civil War, and the internment of Japanese in WW2.
      The document was written as an ideal and the US has fallen short of what is expressed within it.
      I see the Constitution as not defining what a citizen can do but rather as what government is permitted to do and constrained to do. How can this not be true?

    2. Your preamble argument is legitimate one to be made, but you ruined it by asserting applying the constitution to a person in America is the same as applying it to someone in a foreign country.

    3. I’d buy your argument if “person” was used consistently instead of “citizen” in the Constitution and Bill of Rights, but that isn’t the case. When the framers wanted to specify what applied to citizens, they used the word “citizen,” so the fact that they didn’t use the word citizen in the Fifth Amendment speaks volumes, at least to me.

      1. Zach,

        Under your argument wouldn’t the Second Amendment also extend to non-citizens, including illegal aliens as it uses the phrase “the right of the people?

        The full text is as follows:

        A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

        1. No, because the Supreme Court already ruled in U.S. v. Guerrero-Leco that the Second Amendment doesn’t apply to illegal aliens.

          1. U.S. v. Guerrero-Leco, is a magistrate court’s recommendation to a district court. In other words, its at the bottom of the legal totem pole. I happen to agree with the outcome of the decision, but the reasoning was a little looney (illegal aliens wouldn’t have been viewed as people by the founders as there was no such thing as an illegal alien).

            But my larger point is that if “people” means all people, to be consistent with the text of the Constitution the term would necessarily have the same meaning in both the 2nd and 5th amendments.

    4. Fun fact, that’s in the constitution. The fifth amendment is in the Bill of Rights. While tied together, they aren’t the same document and that line doesn’t necessarily apply to all of the Bill of Rights.

      And the Founding Fathers were NOT stupid people. They didn’t carelessly word their documents. There’s a reason it’s “person” and not “US Citizen.”

  2. If only there was a time when another attempted bombing was thwarted and he was tried in federal court.

    Oh wait, http://en.wikipedia.org/wiki/Richard_Reid_(shoe_bomber)

    He wasn’t an American citizen, but was tried in federal court. He wasn’t an American citizen, but he could ‘lawyer up’.

    What is the difference besides timing? Bush was president for the shoe bomber. So if it looks like a double standard, sounds like a double standard, it must be a republican talking.

    Or you could just look at the entry for ‘Dick Cheney’s selective memory’ just down the page and watch the clip destroy all the republican outrage. But when it comes to facts, republicans run away screaming with their fingers in their ears.

  3. Zach and Patrick are both partially correct and partially incorrect.

    The short answer is that a non-citizengains limited constitutional protections once he, she, or it (yes, corporate entities do have constitutional rights) comes into the united states.

    As explained in the U.S’s brief in UNITED STATES v. SALIM AHMED HAMDAN:

    “The Supreme Court has, however, also held that aliens are entitled to some constitutional rights. See United States v. Verdugo-Urquidez, 494 U.S. 259, 270-271 (1990) (Citing Plyer v. Doe, 457 U.S. 202, 211-212 (1982)(illegal aliens protected by
    Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590-596 (1953)(resident alien is a “person” within the meaning of the Fifth Amendment); Bridges v.Wixson, 326 U.S. 135, 148 (1945)(resident aliens have First Amendment Rights);Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931)(Just Compensation Clause
    of Fifth Amendment); Wong Wing v. United States, 163 U.S. 228, 238 (1896)(resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)(Fourteenth Amendment protects resident aliens). Each of the cases cited by the Verdugo-Urquidez court, though, stand only for the proposition that aliens may gain
    limited constitutional rights after coming within the territory of the United States and developing substantial connections with this country. Id.”

  4. I’m not a historian, a lawyer, or an expert in this kind of stuff in any way – and I don’t claim to be. But I don’t get Locke’s argument.

    The fact that these words are a part of the US Constitution (to ME, anyway) says that we as a nation agree to these things. Not that these things only apply to citizens, but that IN the US these are the ‘rules’. Any PERSON on US soil must follow the laws of the US and therefor should have the rights to the protections that go along with them regardless of citizenship. Of course we can’t enforce our laws in other countries – when a US citizen is in another country he must follow the rules of THAT country.

    Maybe I’m oversimplifying, but I don’t see anything that should be confusing here.

    1. I think thats a pretty solid articulation of the way things ought to be, if it’s not the way things are.

        1. OK – so I realize that legally the answer is, because it was ruled that way in X vs. Y and that set precedent. What are the principles – the underlying rationale for why some apply and some don’t? I just can’t see where there is any line drawn. Why does the 4th or 5th apply, but not the 2nd?

  5. I give you the preamble to the document in question…

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    1. But Patrick, you didn’t refer to the preamble in your tirade; you referred to the right to remain silent and the right to an attorney, which fall under the Fifth Amendment.

  6. Article II, Secrion I – …The “person” having the greatest number of votes shall be the President.
    Hmmm, I guess in the liberal mind, you really DON’T have to be citizen to qualify as “people/person” in the constitution !!! (BWA HA HAAA !!!)

    1. Alexander, you skipped over this part of Article 2, Section 1 in your rush to make your point:

      “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President;”

      1. No, I know that part, I was just being silly.
        The discussion’s been great here, I now need to look in the Big C to find if it specifically address “non-citizens” anywhere. If it does, than “person/people” used anywhere outside of that section would clearly address only citizens. If there is no such section, that “people/person” is open to (as you example) context and legal judgment.
        Again, I just couldn’t resist the joke. HA !

        1. Alexander, thanks for adding to the discussion, and thanks for the attempts at humor. Unfortunately, humor doesn’t always translate well to words on a screen. 😛

  7. My call – Once the terrorist was taken and charged, he became subject to American law and the Constitution.
    Note – while this is correct, it never should have happened. He should have been turned over to the military and held as a p.o.w.
    America’s (this administrations) unwillingness to do just that only strengthens the enemy.
    He has now gone from “combatant”, to criminal, and while he may not go free, we are now unable to obtain important strategic information. Too bad that.
    Everyone knows he’s a terrorist, we KNOW it.
    …we also KNOW that O.J. did it.
    Seems both guilty parties will not get what they both deserve.

    1. Again, now that the terrorist was charged, he became a “person/people” under the Constitution.
      …and again… to bad…

  8. Sorry, final thought – once this terrorist touched American soil, he became a “person/people” under the constitution, which is the whole idea behind Getmo and other such sites.

  9. How would this scenario play out if we were invaded by an army, rather than one guy at a time? Would we go around capturing soldiers and giving them trials? If not, why is this different? I realize Al-Qaeda is a terrorist organization and not a nation, but we have declared war on them, no?

    So basically, if I am an Islamic militant I can be sought out and bombed or killed in my own country, but if I somehow manage to get on a plane over U.S. airspace and unsuccessfully blow it up, I get a lawyer, trial, and a bunch of rights. Isn’t that a perverse incentive?!

    1. “Give me your tired, your poor, your Islamo fascists yearning to terrorize…”

    2. If we were invaded by an army we would actually be at war, as declared by Congress, and anyone captured would be a legitimate prisoner of war.

      Do you think an American that tried to blow up a plane should be treated differently than a foreigner? That’s a real question, I’m trying to draw lines between who gets criminal trials and who doesn’t.

  10. “We are at war with Al Qaeda” — President Barack Obama, January 7, 2010

    I think we ACTUALLY are at war, Jim. As declared by Congress? Well, by that definition we haven’t been at war since 1941.

    So if we are at war with Al Qaeda and the Christmas bomber was Al Qaeda, then logically, we captured an enemy combatant. His action was not a criminal act, but a terrorist act — an act of war.

    Yes, I do think an American should be treated differently than a foreigner in an instance like this. Timothy McVeigh comitted an act of terrorism but deserved a trial as an American citizen. I think as a citizen, one’s Constitutional rights must be protected (I believe the founders would agree, to prevent one’s political opponents in power from suspending rights in the false name of terrorist actions). I also do not have a problem with following the usual procedures for non-citizens in criminal actions, just not crimes against the state. What’s wrong with military tribunals?

  11. “by that definition we haven’t been at war since 1941.”

    Correct, the last time our soil was attacked by a foreign military. Also the last time the US was involved in a completely justifiable war. Not to say there hasn’t been some justification in military actions taken by the US, but some were clearly wrong.

  12. The 5th Amendment is clear that is referring to anyone in the U.S. committing a crime here. Mirandizing a suspect is standard practice and it ensures that anyone will not be walked over by the state.

    Think about it, if a person robs a bank in Georgia, and the police catch that suspect. At that moment they don’t know if the person is a U.S. citizen but they are read their Miranda rights because it is a protection for all people inside the U.S. accused of a serious crime. If that person turns out to be a foreigner they are allowed by law to seek out their consulate and have an attorney to represent them on their behalf.

    Unless their are some rules about certain crimes not needing to have Miranda rights read, it is clear the the framers meant it to cover everyone since it says “No person shall be held to answer for”.

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