The framers of the Constitution were careful to use the word “persons” says Strossen.

Question: Should illegal immigrants get the same rights as Americans?

Nadine Stossen:  The ACLU from the beginning has always defended the rights of all persons against abuses by the United States government. I said this way at the beginning. So, it is not limited geographically. It is limited by who the government officials are. So, even if an American citizen in this country were abused by a Mexican government official, I mean we would maybe go after the US government for not sufficiently protecting against Mexican official. But it doesn’t matter what the person's citizenship is or where they are located. Our government is always accountable to constitutional standards and other legal standards including under international law regardless of where our home it is using its power. We are and so, one of the first issues that the ACLU dealt with right at the very beginning of its existence was rights of immigrants. I mean there were the Palmer Raids and people who were treated as having no rights among other reasons because they were non-citizens and here we have a very strong constitutional leg to stand on. If you look at provisions in the Constitution, some of them do apply to citizens, but the most fundamental rights are explicitly granted to persons and so when you know that the framers in two different clauses of the very same amendment, one of them talks about citizens and the other one talks about persons. They were deliberately saying it doesn’t matter what your citizenship status is. You still are entitled to fundamental due process rights, to fundamental equal protection rights. They may not be exactly the same process that is due to a citizen, but they certainly are there and I don’t know a single Supreme Court justice who has disagreed with that position. You can fight about the details of exactly what the rights are that are due, but…so that is something that we have always taken a decision on, where there is more debate now and is an issue that is before the Supreme Court in the last case arising out of Guantanamo that it heard arguments on in December and that is when the United States government acts against anybody outside of our territorial jurisdiction and then becomes more pointed if you are talking about a non-citizen and the ACLU actually filed a brief in that case in which we argued specifically that the Constitution is not limited geographically and in particular there are great writ of habeas corpus that allows somebody to go before a judge to challenge the fact that he or she is being detained by the government is something that should pertain regardless of geography and regardless of citizenship. The lower court had reached the opposite holding and the brief is very persuasive if you look at all the precedents where something occurs and who the victim is, is a factor, but it is not conclusive.

Recorded On: 2/14/08