Capitol Hill Blue Forums Political Issues Constitutional Issues Taiwanese entitled to US constitutional rights

I've looked through some of the major cases addressing the issue, and although many are old, taiwancapsule has correctly stated that constitutional protections have not been given the same weight in territorial areas that they are given in the States and incorporated territories. Frankly, the Supreme Court's rationales in this area are perplexing and unpersuasive (although controlling!). It appears that this approach is being ameliorated by more recent decisions - the Guantanamo cases - but there has not yet been a break with this outdated approach (except in the case of Reid v. Covert (1956) which was subsequently reheard and amended to re-assert the incorporated/unincorporated distinction; Reid v. Covert (1957)). Curious, no?

The following report is over ten years old, but at present it is one of the most comprehensive on the subject of constitutional rights protections in "currently recognized US insular areas."

(In this report, the subject of Taiwan is not yet discussed.)

U.S. INSULAR AREAS
Application of the U.S. Constitution
http://www.gao.gov/archive/1998/og98005.pdf

The title of your post stated that Taiwanese are entitled to US Constitutional rights – not some Constitutional rights.

You then claim that the US Supreme Court has the Constitutional authority to decide what rights are “fundamental”. I can find no such granting of authority by the Constitution to the US Supreme Court to do this, so if it is in fact doing this, it may need to be taken to the woodshed for a Constitutional ass-whoopin’. That’s probably not an acceptable legal term, is it?:-) If you can direct me to that part of the Constitution that does grant this authority, I would appreciate it.

In the links you provided, one of the rights being demanded was one recognized in the 14th Amendment to the US Constitution, the right to the equal protection of the laws. This right is recognized by the Constitution as belonging to any person (not only citizens) within the jurisdiction of a state. This would seemingly include any non-citizen who is under the legal jurisdiction of the United States – whether at a federal, state, or territorial level.

So, it would seem to me that if the case you are referring to requests the US Constitutional right to equal protection of the laws, it would seem that by necessity it would include the protection of ALL the protected rights found in the Constitution. How can one have the equal protection of the laws of the Constitution if some of the laws of the Constitution are being withheld?
Yours,
Issodhos
P.s. Out of curiosity, why would the people who are championing this case not want the Taiwanese to have the protection of all the recognized enumerated rights found in the US Constitution (especially the 1st Amendment) rather than just a few?

It is interesting, Issodhos, that the very suit in question asserts some of those Constitutional rights (as a basis for jurisdiction), but does not address (at least, I don't think so, without rereading it) the full panoply of Constitutional authority. I appreciate your reference and link to the GAO Report. I'll be reading that next. As to the distinction "between" rights, the U.S. Supreme Court has indeed had a long history of distinguishing between competing interests, and identifies some rights as "fundamental" and others - usually, but not always, unidentified by a Constitutional provision - as of a "lesser" quality. This has led to a three-tier analysis of government interference with such rights. "Fundamental" rights - and suspect classes - get a "strict scrutiny" analysis when addressing governmental infringements. (Footnote 6 of the GAO article discusses this concept briefly.) Lesser "rights" get a "rational basis" analysis, whereas some have received an "intermediate" analysis depending on the extent of the infringement and the strength of the government interest. Like you, I don't know that the Supreme Court should be in the position of opining on which rights are "fundamental" or not. The fact is, however, that they have.

Two quotes from the GAO report are relevant, whether or not they show a reasonable approach to the issue:and

Read the Insular Cases of the US Supreme Court for relevant analysis.

I suggest that you research the Insular Cases of the US Supreme Court, and also read all the US Court of Appeals Briefs filed in the case of Roger C. S. Lin v. USA -- http://www.taiwanbasic.com/insular/lin-excerpts.htm


Here is a brief introduction to the Insular Cases. However, you definitely need to read each case and take notes. http://en.wikipedia.org/wiki/Insular_Cases

Sorry, taiwancapsule, but I'm not going to get into a legal beagle swap fest over the issue. If you can explain your position or the position and motive of the group championing this effort, fine, else, if it is not that important to you let's just say it's been real.;-)
Yours in a laid back, easygoing, live-and-let-live mood,
Issodhos

I appreciate the insight, NW Ponderer.
Yours,
Issodhos

It is obviously important to us, and I have been trying to explain the various legal concepts in various threads on Capitol Hill Blue. However, many posters here continue to advance a puzzling array of subjective "insights" and other "opinions" which have very little, if any, legal basis. Then when I challenge them on various points, or ask them to list out their "objections" in detail, I get no response.

As regards the legal framework for US overseas territories as established in the Insular Cases, if it is important to you, and to the other members posting in this thread, then you should read the cases and other relevant original sources, take notes, and learn about the legal reality concerning the governance of these overseas territories.

I already did the research, and I am familiar with all of the details. I also read all of the court documents filed in Washington DC on Nov. 3 and Dec. 17, 2008. In my viewpoint, the analysis is brilliant. Taiwan is definitely an overseas territory under the jurisdiction of USMG, and the local populace is entitled to fundamental rights under the US Constitution.

Following the entry into force of the SFPT on April 28, 1952, Japan renounced all right, title, and claim to Taiwan. In the 20th and 21st centuries, the ROC has never exercised sovereignty over Taiwan and/or held title to its territory. Taiwan/ROC is not an independent sovereign nation.

Okay, we'll give them the same rights as the Cherokee Nation in the 19th century.

I am still waiting for loganrbt's comprehensive list of items which he/she claims contradict (or "invalidate") my position.