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Walen on Constitutional Rights for Nonresident Aliens

By Lawrence Solum

Alec D. Walen (Institute for Philosophy and Public Policy) has posted Constitutional Rights for Nonresident Aliens (Philosophy and Public Policy Quarterly, Vol. 29, No. 3/4, Summer/Fall 2009) on SSRN. Here is the abstract:

I argue that nonresident aliens, in places that are clearly not U.S. territory, should benefit from constitutional rights. This is a matter of mutuality of obligation. The U.S. claims the authority to hold all people accountable for respecting certain laws, such as the law of war as defined in the Military Commissions Act. Accordingly, it must accord them basic legal rights in return. At the same time, I argue, contra Benjamin Wittes, that this would not lead to absurdly opening the courthouse doors, nor does it require abandoning principle to keep the flood of litigation reasonably contained. Not all harms inflicted by the U.S. government can give rise to a lawsuit, and that the distinction between those who should have a right to sue and those who should not can be drawn in a principled way.

Interesting & recommended.

Full post as published by Legal Theory Blog on January 11, 2010 (boomark / email).