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Originally Posted by Greedy,Greedy,Greedy
OK, I found this a surreal response. What federal/state issue was I talking about?
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You said, "I think Scalia, and, to be fair, the court in general historically, would not find that to apply to action of the US government taken against foreign persons on foreign soil." I wasn't sure whether you said "US" to distinguish from the states.
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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.
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Yup, I had that backwards.
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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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About fifteen years ago, I knew these cases really, really well. Two observations: (1) many of the cases you cite are about immigrants who were physically in the country, so what you have is a doctrine that is not really related to geography, and (2) this is court-created doctrine, not something that comes from the text of the Constitution.
