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The Court found the compact theory "the most prevalent" in the Verdugo decision. Citing our historical traditions, the Court would use the social compact theory to deny Verdugo-Urquidez of Fourth Amendment protections because he was not part of the people in the "contract.ä From this comes a view of "the people" as those individuals who have some investment in the American economic and political structure. In Verdugo-Urquidez the Supreme Court called this investment the "sufficient connection test.ä The Court found significance in the textual reference to "the people" in the Fourth Amendment, "The right of the people to be secure ·." As opposed to "persons" in the Fifth, "No person shall be held to answer·" and the Sixth Amendment which refers to "·the accused shall enjoy·". For the Court, the distinction between the amendments is more than an attempt by the Framers to avoid redundancy but to extend protections of the Fourth Amendment only to citizens residing in the United States, not as a general natural right to all, citizen or non-citizen. (Verdugo-Urquidez 1060). To the majority of the Court ,Verdugo-Urquidez was not one of "the people" of the United States, he did not have a "sufficient connection" and could be denied this fundamental right. The actions of the government agents were not applicable in Mexico and the search and seizure effected against him was allowed to stand.
Verdugo-Urquidez could not claim protection form the Fourth Amendment
because his presence in the United States was involuntary. The
Court was clear that if protections were extended to Verdugo,
aliens who had no previous connection with the United States would
have a cause of action for alleged violations occurring in foreign
countries. The Court held furthermore, that if Fourth Amendment
protections were extended to those without a substantial connection
to the United States, American agents conducting activities beyond
United States borders would be severely limited.
The other theory of constitutional formation is the "natural"
or "fundamental" rights theory. Under this approach,
the Constitution was intended to be a codification of those rights
that are natural, unalienable and fundamental. Justice Brennan
wrote in his dissent in Verdugo that "the Framers of the
Bill of Rights did not purport to "create" rights. Rather,
they designed the Bill of Rights to prohibit our Government from
infringing rights and liberties presumed pre-existing.ä (Id.,.
at 1073). These rights are possessed by all, and would be possessed
in a state of nature, whether a person was part of the body politic
or not.
The natural-rights theory traces back to the pre-Revolutionary
era writings of Locke, and the listings of fundamental rights
as essential components of nearly every compact or constitution
written in the pre-Revolutionary, revolutionary and constitutional
periods. In fact, our whole history as a people could be described
as a discussion of the proper definition of rights. The general
purpose of government as stated in the Declaration of Independence
is to secure unalienable rights. If rights are unalienable, then
they are natural, fundamental and can not be taken by government
in its authority from any person, for any reason. The excursions
of the government across the border, to carry-out a search and
seizure of a person accused in the United States is a blatant
example of the kinds of abuses that are invited when the government
is not limited by a bill of rights.
Who "the people" are, to whom the Constitution applies
has long been a subject of debate in American constitutional studies
now, the Court has answered the question that rights are "fundamental"
if one is a "citizen" rather than a "human".