Legal History
B.L.U.F.
This case is quoted in Heller as the Court’s understanding of the meaning of “The People”. In reading the opinion, it becomes crystal clear that the Supreme Court has been using text, history, and tradition for a long time.

(2500 words)


Introduction

There are numerous terms we use to describe the courts and judges of the United States. The first term is “inferior”. This is a technical term. The Constitution establishes the Supreme Court and such inferior courts as congress might authorize.

All courts are inferior to the Supreme Court.

Below the Supreme Court are the Circuit Courts and state Supreme Courts. Under the Circuit courts are the district courts.

The states also have hierarchies of courts.

Inferior courts are supposed to follow the guidance given to them by their superiors. When they do not, they are “rogue” courts or justices.

I use the term “agenda driven” to describe those courts, judges, and justices that are so driving by their agenda that they can twist the plain text to mean whatever they want it to mean.

Listening to some questions and comments from circuit judges, it is often easy to identify those agenda-driven judges. When a judge says, “It can’t mean shall not infringe because that would mean we can’t regulate guns!”. It is pretty clear that their agenda is more important than the law.

Text, history, and tradition


In 2008, the Supreme Court issued the Heller decision. The holding was that the Second Amendment protected an individual right to keep and bear arms. This is an easy reading for any honest judge or justice to reach.

After announcing their holding, the court went on and described how they reached their opinion. From that we get the famous phrase “text, history, and tradition”.

For me, this was new. For gun owners, tired of fighting for crumbs in the courts, it was a remarkable step in the right direction. In the direction of The People.

For the people who follow the Supreme Court, it should not have been a surprise. The Supreme Court, faithfully, applied their standard methodology in evaluating a constitutional question.

What does the plain text mean, as it was understood when the constitution was adopted and when the amendments were ratified?

Once they determined the meaning, they looked to the history of regulation and the tradition of those regulations.

What does “and tradition” mean? It means that the regulation must not be an outlier, that it existed in multiple jurisdictions and for a reasonable time. It must also be a regulation that would survive a constitutional challenge, today.

If there is a facially racist regulation, it would have been vacated when racist laws were struck down.

Plain Text

A constitutional challenge beings by examining the plain text. If the conduct implicates the plain text, then the state has the burden to prove a history and tradition of regulations supporting their modern regulation.

That first stage should always be easy.

A narco, who was a Mexican citizen and a resident of Mexico, managed to piss the United States off enough that the state was able to obtain a warrant for his arrest. He was arrested in Mexico and extradited to the United States for trial.

The Mexican police, along with DEA agents, proceeded to search his Mexican residences and seized documents.

At trial, Verdugo-Urquidez (the narco) moved to suppress all the evidence collected during that search, claiming that he had a Fourth Amendment protected right to be secure in his person and papers.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
— Fourth Amendment to the U.S. Constitution

The DEA did not obtain a search warrant for the narco’s residences, so he had a right to be secure in his person, houses, and papers. This is the plain text.

The district, circuit, and Supreme Court all agreed that the DEA’s conduct implicated the plain text of the Fourth Amendment.

The district court and the Ninth Circuit agreed with the narco. The state appealed to the Supreme Court.

The question presented by this case is whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. We hold that it does not.
United States v. Verdugo-Urquidez, 494 U.S 259, 261 (U.S. 1990)

In order for there to have been a violation of narco’s civil rights, he would need to be a part of “the people”, there must have been a search or seizure, it must have been reasonable or, if it was “unreasonable” a warrant shall have been issued.

Was there a search? Yes.

Was there a seizure? Yes.

Was the search and seizure unreasonable? According to the court, it was not unreasonable. The DEA requested and was granted permission to do the search and seizure by the appropriate Mexican officials.

Is the narco part of “The People”? That is not clear, but the courts presume that the narco is a part of the people until proven otherwise.

History

So the answer, after examining the conduct and the plain text, is that the Fourth Amendment protections are implicated. The burden now shifts to the state to prove a history and tradition of regulations.

That text, [the Fourth Amendment,] by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U. S. Const., Amdt. 1 (“Congress shall make no law … abridging … the right of the people peaceably to assemble”) (emphasis added); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States“) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words “person” and “accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
id. at 265,266

The majority is limiting “the people” to those that are part of the “national community”.

While questioning whether the narco was part of “The People”, the court moved on to the history of the Fourth Amendment.

What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters. id. at 266 Here, the court makes note that the Fourth is limited to domestic matters.

There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters. Only seven years after the ratification of the Amendment, French interference with American commercial vessels engaged in neutral trade triggered what came to be known as the “undeclared war” with France. In an Act to “protect the Commerce of the United States” in 1798, Congress authorized President Adams to “instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas.” …
id. at 267
The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.
id. at 270 quoting Reid v. Covert 354 U.S. 1(1957)

Just an aside. I love reading things like this.

These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.id. at 271.

dicta is not holding

This is text that the good guys should be throwing at the rogue inferior courts every day:

The Court of Appeals found some support for its holding in our decision in INS v. Lopez-Mendoza, 468 U. S. 1032 (1984), where a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but our decision did not expressly address the proposition gleaned by the court below. The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment’s exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country. The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, compare, e.g., Maine v. Thiboutot, 448 U. S. 1 (1980) (assuming State is a “person” within the meaning of 42 U. S. C. § 1983), with Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989) (State is not a “person”), and such assumptions -even on jurisdictional issues -are not binding in future cases that directly raise the questions. Id., at 63, n. 4; Hagans v. Lavine, 415 U. S. 528, 535, n. 5 (1974). Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens would be entitled to Fourth Amendment protections, their situation is different from respondent’s. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among “the people” of the United States.
id. at 272,273

When a court assumes a position without deciding, it is not the same as deciding/holding. Often, it is advantageous to the court to presume something and then dispose of the case on the grounds that the court wishes to use.

The methodology

And here we have it, in black and white: Text, History, and application.

We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent’s claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.
id. at 274–75

Concurrences and Dissents

For somewhat similar reasons, I cannot place any weight on the reference to “the people” in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation’s concern over warrantless and unreasonable searches, explicit recognition of “the right of the people” to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of “the people.”
id. at 276 Justice Kennedy, concurring
In my opinion aliens who are lawfully present in the United States are among those “people” who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. …
id. at 279 Justice Stevens, concurring.
What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The “sufficient connection” is supplied not by Verdugo-Urquidez, but by the Government. Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose “societal obligations,” ante, at 273, such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment.
id. at 282,283 Justice Brennan, dissenting

Things that make you go, “hmmmmmm”. According to Justice Brennan, if you are subject to the laws of the country, then you are part of The People and have the right to keep and bear arms.

I am inclined to agree with JUSTICE BRENNAN, however, that when a foreign national is held accountable for purported violations of United States criminal laws, he has effectively been treated as one of “the governed” and therefore is entitled to Fourth Amendment protections.
id. at 297 Justice Blackmun, dissenting

Again, if our laws apply to you, then you are part of The People.

Conclusion

Within this entire 40-page opinion, at every stage, the Justices were rooted in text, history, and tradition. They have different opinions on who “The People” are, but the dissent wanted a broader definition of “The People”, not a narrowing.

How wholly different from the rogue opinions of today’s inferior courts, trying to dice words so fine that they no longer make sense.

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By awa

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