(Headline by way of this Onion classic.)
Now here comes the part where I basically steal a whole Adam Serwer blog post, because he is right on every point and McConnell is an idiot:
Senate Minority Leader Mitch McConnell…:
“These are not American citizens. We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court,” McConnell told “Fox News Sunday.” “I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.”
I’m looking forward to McConnell introducing legislation that would force parents suspected of killing their children into the military commissions system. When will the Democrats understand that we’re at war with child abuse…?
Also, despite the right wing populist argument that foreigners aren’t “entitled to all the protection in the Bill of Rights,” the Constitution has never in history been interpreted that way by the Supreme Court. Quite the opposite, going as far back as 1886 Wong Wing v. U.S. case:
Applying this reasoning to the fifth and sixth amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.
Serwer notes that the Bill of Rights applies its protections to “persons” or, in the Sixth Amendment, the “accused.” The Fifth Amendment, in particular, goes out of its way to use the word “person” rather than “citizen”:
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 offence 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 Serwer points out, the Framers of the Constitution (text here) were perfectly capable of using the word “citizen” when they wanted to — e.g., Art. III, S. 2; Art. IV, S. 2; and so on. Why did they use “person” in the Fifth Amendment?
Because they were perfectly well aware that there would be many non-citizens in the U.S. and in overseas territories controlled by the U.S., and they were attempting to establish a singular, supreme law governing the behavior of the government of the newly-formed nation. To see the Bill of Rights as merely enumerating a list of privileges of citizenship is to misunderstand the project at hand when the Bill was written. It’s to forget Jefferson’s memorable declaration “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights” and “That to secure these rights, Governments are instituted among Men.” The Bill of Rights does more than list off the benefits of being an American citizen — it declares the rights of all men, rights the Framers considered to be fundamental and “unalienable,” and which governments exist in order to protect.
(All of this is, of course, to say nothing of the obvious point that Mitch McConnell is more interested in “convictions” than in “justice” or “protecting society from criminals” or any of the other reasons we have “laws.” The idea that having a high burden of proof in order to convict people of crimes and send them to jail might be a good thing doesn’t seem to have crossed his mind.)