The text of the US constitution explicitly talks about the rights of people, not citizens - so I would argue that the constitution itself has always prohibited this.

However, there is a long history of interpreting 'people' to mean specific groups - from only white people to only citizens.

> The text of the US constitution explicitly talks about the rights of people, not citizens - so I would argue that the constitution itself has always prohibited this.

No, it talks about "the people." As in the preamble: "We the People of the United States."

> However, there is a long history of interpreting 'people' to mean specific groups - from only white people to only citizens.

Playing with the interpretation of "people" has never been a mechanism for excluding people from constitutional protection. For example, the 3/5ths clause states as follows:

> Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

It refers to enslaved people as "persons." The Fugitive Slave clause likewise refers to a "person held to service or labour."

>As in the preamble: "We the People of the United States."

The preamble is discussing who is creating the constitution and why. It does not say it only applies to certain individuals. I don't see how you can use that to argue that the government is free to infringe upon the rights of noncitizens.

As a grammatical matter, the phrase “the people” must refer to an antecedent. Even standing alone, “the people” clearly refers to certain people, not “all people.” The term isn’t read as applying only to citizens, because certain provisions of the constitution specifically require citizenship. It encompasses citizens and non-citizen residents, and to some extent people present on US soil. But it’s hard to read “the people” to mean “people in other countries.”

>But it’s hard to read “the people” to mean “people in other countries.”

The Constitution makes it clear that these rights are universal by saying that the government may not make laws that infringe upon them. They aren't granting rights, they are declaring which rights they must abide by. And with that, the use of "the people" in the part about free assembly should rely more on the context there then the preamble, where it clearly means "the people assembling" not "the citizens assembling."

Further on your "persons" point, the relevant Fourth Amendment makes it clear the terms are interchangeable.

>The right of the people to be secure in their persons...

The first half of your post contradicts the second half of your post.

No it doesn’t. The condition of slavery wasn’t addressed by interpreting “people” to exclude enslaved people, additional words were added to distinguish enslaved people from free people. But free Black people, for example, were always included in the count of “free persons.” Other laws may have imposed limits. In 1789 women couldn’t vote and in 2021 children still can’t. But they were all included in the definition of “people.” Those other laws changed but the meaning of “people” didn’t.

The first half of your argument is about how the constitution specifies citizens (a subset of people) with "we the people". The second half is about how "we the people" refers to everyone (not a subset of people).

yes, i'd generally agree, but not everyone does. and we see that politicians are relentlessly driven to expand their own power, so soemtimes we need to spell out limitations like this explicitly.

The US government has a history of requesting extraordinary powers for extraordinary situations and never give them back. All the modern surveillance apparatus had its beginning during WW2. When the war was over, instead of pacifying the world, they immediately switched to create a cold war against a former ally to justify an even more expensive surveillance apparatus. With the end of former Soviet Union, instead of dismantling the surveillance industry, they started to create new enemies around the world, so people would be coerced to keep them employed against the interests of the population.

Yes. The Stalinist Soviet regime were innocent, peace-living victims.

The government only has the powers granted to it by the constitution. If the power for the executive to unilaterally conduct searches was not given to it, then it doesn't have it. Just because it doesn't say the government can't surveil foreigners doesn't mean they can - it has to specifically say the government is granted the right to surveil foreigners. And there's really very little reason to think that a power never granted to the government in the first place in the case of Americans was actually, somehow in secret, granted in the cases of non-Americans.

Note: military surveillance should notcross with Law Enforcement surveillance.

They are two different things in the eyes of the judiciary.

The military can get away with surveillance under the mandate of defending the United States from all threats, foreign and domestic.

The product of that surveillance, however, is not permissible as far as I know in a court of law unless it's specifically UCMJ.

Not a lawyer though. If one is around willing to enlighten us on this odd question, it'd be much obliged.

i'd also generally agree with this, but not everyone does, so let's spell it out more clearly, even if somewhat redundantly.

Government exercises exactly the powers it claims and is not restrained from exercising. E.g., the US Constitution does not grant the Executive branch the power to torture prisoners taken without due process. Instead, persons nominally overseen by the Executive branch exercise those powers exactly until they are exposed and stopped.

The main use of surveillance is, always and everywhere, extortion. We see this daily among local, state, and federal police, abusing it to coerce the public to become informants; among prosecutors to coerce false admissions of guilt; and among spooks to convert formerly free individuals to "assets", and to enforce silence about abuses. It is used to coerce judges to issue unjust orders and decisions, to coerce witnesses to remain silent, and to coerce elected officials to vote against the interest of their constituents, or even to step down from an elected position or not to seek re-election. It is used to coerce awarding contracts or custom to undeserving suppliers, or to coerce lower prices in services sold.

Coercion need not be based on surveillance of the person coerced; it can come from surveillance of parents, siblings, offspring, friends, business partners, customers, service providers.

'Any non-governmental foreigner' includes the vast number of non-official-cover spies sent by other nations. The government is to serve the people, but it must balance the fact that other world powers and enemy nations are seeking to undermine the nation.

then get a warrant since spying is probable cause. but no warrant, no surveillance. and the warrant should be reviewable/challengeable by more than a secret/military court. transparency and balance of power are crucial to maintaining a service (rather than a domineering) orientation.

also, foreign governments in general spy with non-cover agents not to undermine our (US) government secretly, but to get an edge for their own power and prestige. undermining activities usually happen either with government agents for high secrecy operations (like stuxnet) or relatively openly if obscurely (disinformation/propaganda campaigns).

the long-running encroachment against our liberties has been largely due to fundamental misgivings/misunderstandings like 'everyone is out to get us'. those are the same impulses that led us to performative responses to a pandemic rather than relatively minimal but targeted federal action (e.g., honest information dissemination and financial support for r&d and the at-risk/marginalized).

I agree. I think the constitutional limitations placed on our government should limit it universally, not just within the borders of the country.