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. …