More Dehumanizing than Dred Scott, More Emancipatory than Brown v. Board of Education -- Deconstructing Verdugo-Urquidez's 'The People' to Save the People's Constitution from the Court's Secret Interpretation of a 'Person' in Boumediene v. Bush

Abstract

If a Guantanamo detainee, or any other extraterritorial citizen who has never been United States brings a claim under Constitution's Due Process Clause, does Constitution apply? In Verdugo-Urquidez, Supreme Court answered no -- at least for Fourth Amendment -- these extraterritorial noncitizens were not a part of Fourth Amendment's the people. In Boumediene v. Bush, Court seemed indicate sometimes long as practical considerations favored application of Constitution in that situation. This piece argues that contrary common readings of Verdugo-Urquidez, and Boumediene, Constitution and Court's jurisprudence requires due process apply extraterritorial noncitizens. This This piece claims that substantive due process at its core is an immutable principle of basic fairness that exists as long as Supreme Court refrains from justifying conduct of government solely on basis that something is constitutional because political branches said so or unconstitutional because Court said so. That is, as long as Court gives even slightest slither of an independent justification for its ruling, framework originalism is just, people can attack Court's underlying justification of law and thus know how to change Constitution. I attempt prove that this concept of substantive due process, what I call residual due process and always-already constitutionalism, by analyzing Court's extraterritorial jurisprudence for Constitution in United States v. Verdugo-Urquidez and Boumediene v. Bush. In my piece, I show that Boumediene majority's impracticable and anomalous test and dissents strict territoriality approach Constitution, if taken their logical extreme, each constitutionalize Holocaust. I then bring reader back from brink of throwing out Constitution by demonstrating that residual due process existed in majority and dissenting opinions of Boumediene and thus as a matter of American identity we lack capacity become Nazis. In order demonstrate this thesis, I analyze what, if any, constitutional safeguards would exist if United States issued Letters of Marque and Reprisal capture Somali pirates for prosecution in United States as a solution current epidemic of Somali Piracy. The piece is unconventionally written as a Supreme Court opinion that reader can discover “truth” for himself or herself rather than having someone tell them what truth is.