Comment by willmarch
7 days ago
The “founders didn’t intend to protect X” argument is more about history than law. Whatever the founders personally believed, the Constitution they wrote and endorsed (as interpreted for well over a century) restrains government in its treatment of “persons,” not just citizens. Non-citizens (documented or not) still have due process protections, and law enforcement still has to stay inside Fourth Amendment limits.
On “what actions violate the Constitution”: you’re also overstating what’s been “held.” An emergency order/stay is not a merits ruling that a policy is constitutional; it’s often just “this can proceed for now while litigation continues.” And the fact that multiple branches haven’t stopped something yet doesn’t mean checks and balances are “working”, it can just mean they’re failing in slow motion, which is exactly the scenario the founders warned about.
As for the specific amendments: time/place/manner doesn’t cover suppressing disfavored speech under pretext, and reasonable suspicion can’t be race/ethnicity-by-proxy or broad dragnet logic. If you want to argue the recent ICE-related tactics are clearly constitutional, cite the exact language you’re relying on and I’ll read it. But “emergency order exists” does not equal “constitutional on the merits.”
>…the Constitution they wrote and endorsed…restrains government in its treatment of “persons,” not just citizens.
Sure, it does now, but your original statement was “You should read more of the thoughts of America’s founding fathers”. But, do remember the founding fathers didn’t seem very concerned about the early government’s treatment or protections of many groups of people. Otherwise, we wouldn’t have needed: The Bill of Rights Amendments 13,14,15, and 19 The civil rights act Title 9, etc
>Non-citizens (documented or not) still have due process protections, and law enforcement still has to stay inside Fourth Amendment limits.
Sure, and those protections aren’t being violated, as evidenced by the Supreme Court holding that doesn’t even find enough risk to the plaintiffs to temporarily pause these enforcement actions. Just like they also agreed that TPS could be ended, parole could be ended, 3rd country deportations were allowed, etc.
At a certain point, when Congress doesn’t care to legislate against it, the Supreme Court via rulings/shadow docket allows it to continue, and the President authorizes it, the action is legitimate.
You can not like it, and you’re welcome to vote against it in the midterms and in 2028, but that doesn’t make it unconstitutional.
Just as emergency order doesn’t equal constitutional, complaints about enforcement of existing laws does not equal unconstitutional.
You’re conflating three different things: (1) founders’ personal moral failures, (2) the legitimacy theory they articulated, and (3) what an emergency posture from SCOTUS actually proves.
On (1) vs (2): yes, the founding generation tolerated massive injustice. That doesn’t refute the point I was making. The Enlightenment idea they leaned on is that rights pre-exist government and government power is delegated and limited. The later amendments you list aren’t a rebuttal to that framework, they’re the country painfully applying it more consistently over time via the mechanisms the Constitution itself provides.
On the Court point: “SCOTUS didn’t temporarily pause X” does not equal “no constitutional violation.” Emergency stays/injunctions turn on things like posture, standing, likelihood of success, irreparable harm, balance of equities, and deference; not a full merits finding that the challenged conduct is constitutional. “Shadow docket lets it continue” is not the same as “the Court blessed it.”
And the biggest issue is your last paragraph: legitimate does not equal constitutional.
Congress failing to act, the President authorizing something, and courts not immediately stopping it may show the government has the power to do it right now; it does not show the action is within constitutional limits. If that were the test, then any coordinated abuse across branches would become “legitimate by definition,” which is exactly what checks and balances are meant to prevent.
If you want to argue “these protections aren’t being violated,” then argue the specifics: what’s the standard being used for stops, entries, detentions, and removals, and how is it being applied? “It’s enforcement” is not a constitutional analysis.
You’re just trying to robe your personal idea of what’s constitutional in some fairytale amalgamation of modern social justice and enlightenment writings.
The reality is simple: the founding fathers did not and would not care that illegal (or heck, even legal) African immigrants were being arrested and deported, as evidenced by the fact that many of them literally held slaves. So, your opening position that I “should read more of the thoughts of America’s founding fathers” is wrong.
To checks and balances, the current state of government action is ironically in line with how those founding fathers would want government run.
Hamilton: “The courts were designed to be an intermediate body between the people and the legislature… to keep the latter within the limits assigned to their authority”. If the courts don’t see fit to constrain this exercise of power, it’s within the authority.
Washington himself led a militia against the Whiskey Rebellion, since the members were using intimidation, violence, and obstruction to impede a government function (wow, sounds familiar…)
Turning back to the present day, the standard being used is simple: The Immigration and Nationality Act authorizes immigration officers to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” 66 Stat. 233, 8 U. S. C. §1357(a)(1). Immigration officers “may briefly detain” an individual “for questioning” if they have “a reasonable suspicion, based on specific articulable facts, that the person being questioned . . . is an alien illegally in the United States.” 8 CFR §287.8(b)(2) (2025); see United States v. Brignoni-Ponce, 422 U. S. 873, 884 (1975); United States v. Arvizu, 534 U. S. 266, 273 (2002). The reasonable suspicion inquiry turns on the “totality of the particular circumstances.” Brignoni- Ponce, 422 U. S., at 885, n. 10; Arvizu, 534 U. S., at 273.
If you want to argue these protections are being violated, you should probably make a stronger case than the one before the court that’s likely to lose. I’ll defer to the Supreme Court for constitutional analysis, as the founding fathers intended.
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