With justice for some, not all?

That argument shows that the real basis on which the Bush officials seek to defend these measures is not the power to wage war. Again, we are not legally at war. They appeal instead to what are longstanding, albeit repugnant, judicial rulings holding that aliens have no meaningful rights that can restrain the US government. The logic is that aliens are guests, invited on terms that we can change. If they don't like what we're doing, they can leave. Or we can make them leave.

That analogy may have some appeal, but the decisions that wrote this reasoning into law do not. Judicial denials of rights to aliens originated in response to the US claim in the late 19th century that it could prevent the return to the US of formerly resident Chinese aliens to whom it had guaranteed the right to reentry. Legislators and courts defended this on racist grounds: People so different could be kept out regardless of their apparent rights.

The notion that noncitizens really had no meaningful rights was further underscored after the Spanish-American War, in which the residents of the new US colonies were deemed ineligible for constitutional protections. Again, the legislators and courts held they were too racially distinct and inferior to merit such guarantees.

That sort of racism is, fortunately, disavowed today. But the repugnant legal doctrines denying even basic rights to aliens remain. Hence Attorney General John Ashcroft believes he can reason in similar ways. He has declared that the people who would be tried in the new military courts do not "deserve" constitutional rights.

But perhaps the most admirable feature of the US Constitution is that it defines most of the fundamental rights it delineates as rights of "persons," not of citizens. "Persons," not citizens, are entitled to protection against unreasonable searches and seizures, against losses of liberty without due process, against denials of equal protection. Persons can forfeit some of those liberties, but only as the result of governmental proceedings in which their constitutional rights are protected throughout. There are no provisions for executive officials to decide unilaterally, in advance of any proof of guilt, which people are and are not "persons" who "deserve" to have such rights.

There are no such provisions for a very good reason: The US began committed to the principle that all persons were endowed with certain inalienable rights, and that governments were created to secure these rights. The founders of this country had a name for executive officials who decided, on their own authority, that some persons actually had no claim to such inalienable rights. They called them tyrants.

So should our courts, and so should we, today.

Rogers M. Smith is a professor of political science at the University of Pennsylvania.

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