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Originally Posted by Tyrone Slothrop
On the federal/state issue, there is no real dispute that the Fourteenth Amendment makes the Due Process Clause apply to the federal government.
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OK, I found this a surreal response. What federal/state issue was I talking about? And, uh, I'm a corporate lawyer, so take my constitutional thinking with a grain of salt, but didn't the 14th amendment make the Due Process Clause apply to the STATES, not the federal government.
Also, to move up the argument pyramid and directly rebut your point, Bicycles don't ride Fish.
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Otherwise, perhaps Scalia was making your point, and it's a little hard to tell from the news story, but I doubt it. Over more than two hundred years, the Court has had many opportunities to create exceptions to the principle of the Due Process Clause, and I'm sure Scalia knows them far better than I do, but it beggars disbelief to think that the Founders, familiar as they were with the way people had been tortured by the King of England over the previous centuries, would think that they were giving that power to a chief executive who simply claimed a serious, exigent need.
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The point I was making is that the constitution constrains the government with regard to how it operates at home. It may constrain the government with regard to how it operates abroad in dealing with US citizens. But, time and time again (think Chinese exclusion cases, Haitian boat people, etc., etc.) the court has ruled that the constitution doesn't apply and there is no due process right or constitutional rights for non-US citizens dealing with the US government abroad.
It's not that there is an exception to the due process clause. It's that the constitution doesn't even apply here.
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