The Meaning(s) of "The People" in the Constitution

Harvard Law Review, February 2013 | Go to article overview

The Meaning(s) of "The People" in the Constitution


The Constitution famously begins with a flourish, "We the People." (1) Less famously, the phrase "the people" appears in several other constitutional clauses, five of which are in the Bill of Rights. (2) The First Amendment ensures "the right of the people" to petition the government and to assemble peacefully; (3) the Second Amendment protects "the right of the people to keep and bear Arms"; (4) the Fourth Amendment protects "the right of the people" against unreasonable searches and seizures; (5) and the Ninth and Tenth Amendments reserve to "the people" nonenumerated rights and powers, respectively. (6) Do these references to "the people" point to particular individuals, or are they merely rhetorical? If they point to particular individuals, do they refer to American citizens, or to everyone in the country irrespective of citizenship? Finally, could "the people" mean different things in different amendments?

The courts largely overlooked these questions for 200 years (1789-1989). (7) Since then, the Supreme Court has twice commented on this phrase's meaning, but the two analyses are in tension. In United States v. Verdugo-Urquidez (8) in 1990, the Court said that "the people" refers to those "persons who are part of a national community," (9) or who have "substantial connections" to the United States. (10) The touchstone was not citizenship, but the extent of one's connection to this country. This definition of "the people" applied consistently throughout the Bill of Rights, the Court said. (11) In District of Columbia v. Heller (12) in 2008, the Court approvingly quoted Verdugo-Urquidez's definition, and similarly suggested that the term "the people" has a consistent meaning throughout the Constitution. (13) But Heller also said that "the people" "refers to all members of the political community." (14) Heller thus contains a confusing three-part analysis: (1) it approved of Verdugo-Urquidez's interpretation; (2) it substituted "members of the political community" for "persons who are part of a national community"; and (3) it suggested that "the people" means the same thing throughout the Constitution. Heller's analysis has created a tension that has attracted little notice. (15)

This tension could be resolved in several ways, but one way should give us pause: Heller could be viewed as changing the meaning of "the people" throughout the Bill of Rights by limiting "the people" to "members of the political community," which might be interpreted to mean, inter alia, "eligible voters." This interpretation could have significant consequences for individuals who seemingly enjoyed several constitutional rights after Verdugo-Urquidez, but who might not enjoy them under this view of Heller. These individuals could include (1) non-citizens, whether foreign students, those on work visas, or undocumented immigrants; ( 16) and (2) certain classes of citizens who typically cannot vote, such as minors and felons. (17) Since Heller, a few lower court opinions already indicate that this interpretation is possible. (18)

This Note argues against that interpretation of Heller. Part I summarizes Verdugo-Urquidez, Heller, and lower courts' interpretations of these two cases. Parts II and III argue that Heller's exegesis of "the people" should not be interpreted to affect the meaning of other constitutional clauses. Part II contends that, due to its many ambiguities, Heller has not resolved the meaning of "the people" in the Second Amendment. Part III argues that, even if it had, Heller's analysis should not affect the meaning of other amendments, because "the people" can embrace different individuals in different clauses. This Part focuses on the First, Second, and Fourth Amendments because they are frequent sources of dispute. These amendments' texts, origins, precedents, and purposes suggest that the same phrase, "the people," can have different meanings in different clauses. Part IV concludes.

I. VERDUGO-URQUIDEZ, HELLER, AND THEIR AFTERMATHS

This Part describes Verdugo-Urquidez and Heller, as well as lower courts' subsequent interpretations of those cases. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Meaning(s) of "The People" in the Constitution
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.