Recently, Trump’s travel ban disrupted the lives of about 90,000 people traveling to or returning to the US. Most of these people were non-citizens, but many were in fact citizens. For example, a US-born NASA scientist and US citizen named Sidd Bikkannvar was recently detained at the airport by Border Patrol agents while returning from Chile, almost certainly because of his skin color since Chile wasn’t even part of the travel ban. Despite the fact that the agents had no charges to bring and no probable cause, they searched him and seized his phone and demanded his password to unlock the phone. The phone was owned by NASA and Sidd was responsible for keeping the sensitive information on it out of unauthorized hands. Eventually, Sidd relented and gave them his password, because that was the only way he could go home.

State of the Absurdity

Now, if Sidd was inside the United States, there would be no question that such action was unconstitutional search, seizure, and detainment. But it has been often argued that the US constitution only has jurisdiction within the US. Non-citizens outside the boundaries of the US usually aren’t afforded constitutional rights by the military or any other US government agency. And while we may imagine that the constitution travels with citizens abroad, in practice, those citizens have often been unable to have their rights enforced or obtain reparations when their rights have been violated by the US government abroad.

While this may seem to make sense – of course the US government doesn’t have jurisdiction outside the US – in reality, this is a logical inconsistency. If the US doesn’t have jurisdiction outside the US, it shouldn’t have *any* ability to act outside its borders, which would mean the US is *more* constrained outside its borders than it is within, not less. But courts seem happy to maintain this logical contradiction in rulings such as the refusal to hear a lawsuit brought by a quickly-exonerated terror-suspect who is also a UC citizen when he claimed an FBI agent tortured him.

The story becomes even hazier when considering US territories that aren’t states. The infamous “insular cases” were a series of supreme court cases in 1901 that decided that full constitutional protection does not extend to unincorporated territories, like Puerto Rico and Guam. Instead, courts pick and choose which constitutional provisions to uphold in those places. This is the reason that people in territories like that pay federal taxes, but have no voting representation in the federal congress.

Constitutional Application

All this constitutional gray area comes from one source: political expediency. The government often tries to get away with grabbing more power for itself where the public will bear it, and there is no easier target than non-citizens who can’t vote. The absurdity of a pick-and-choose mentality for constitutional application is made clear when we consider what a constitution is and what constitutional rights are.

As I’ve said in more detail in a previous post, a constitutional right isn’t something a citizen possesses per se. Constitutional provisions (including the bill of rights) do not give individuals rights directly, rather they take *away* the rights of our government to perform certain actions. For example, the first amendment does not give you the right to say anything you want without consequence, rather it prevents the government from taking action against a person based on the content of ideas they communicate. A constitution, in short, is a document limiting the actions of the government it is part of.

A case currently (as of Feb 21 2017) being heard by the supreme court is the case of 15-year-old Sergio Hernandez who was shot and killed in Mexico by a border patrol agent in the US. Its disappointing to note that the Supreme Court seems “divided” on this issue at the moment. The idea that somehow the US government is not bound by the constitution outside its boundaries is ludicrous. Either the border patrol agent is acting as a government agent, in which case he is bound by the constitution, or he’s acting as a free agent, in which case the border patrol agent is liable for murder or man slaughter in either the US or Mexico. The answer simply cannot be “none of the above.” Will update when the case is decided.

Nowhere in the constitution does it say that only citizens are afforded any rights. Therefore, it is simply criminal that our supreme court has long held a pick-and-choose stance on upholding constitutional provisions outside the borders of the US proper including in US protectorates.

It’s absurd that the constitution somehow ends at the US border, or in fact anywhere. The US constitution should be in full effect anywhere in the galaxy that the US government goes. Think of the constitution like a magical document that imbues life into the US government. Without that document, the US government doesn’t exist. Therefore how can some of it not apply somewhere that the US government is occupying?

Whether in the middle east, or in the middle of Kansas, every person (citizen or not) that deals with the US government should be afforded the rights the constitution provides. It is logically inconsistent and morally bankrupt to treat the constitution in any other way.