The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U. S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U. S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U. S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U. S. 197 (1903) (provisions on indictment by grand jury and jury trial inapplicable in Hawaii); Downes v. Bidwell, 182 U. S. 244 (1901) (Revenue Clauses of Constitution inapplicable to Puerto Rico). In Dorr, we declared the general rule that in an unincorporated territory — one not clearly destined for statehood — Congress was not required to adopt "a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated." 195 U. S., at 149 (emphasis added). Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories. Id., at 148; Balzac, supra, at 312-313; see Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U. S. 572, 599, n. 30 (1976). If that is true with respect to territories ultimately governed by Congress, respondent's claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the 269*269 view that every constitutional provision applies wherever the United States Government exercises its power.
Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U. S. 763 (1950),… If such is true of the Fifth Amendment, which speaks in the relatively universal term of "person," it would seem even more true with respect to the Fourth Amendment, which applies only to "the people."
The Court of Appeals reheard the case en banc and affirmed the District Court's dismissal of the parents' claims. The full court agreed with the panel that Hernández lacked Fourth Amendment rights. Hernandez v. United States, 785 F.3d 117, 119 (5th Cir. 2015) (per curiam) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)).[1] It declined, however, to resolve whether Mesa's conduct violated the Fifth Amendment, concluding that, in any event, Mesa was entitled to qualified immunity. 785 F.3d at 120-121.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, the Court broke new ground by holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim. The Court subsequently extended Bivens to cover two additional constitutional claims: in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), a former congressional staffer's Fifth Amendment claim of dismissal based on sex, and in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment. After those decisions, however, the Court changed course.
Bivens, Davis, and Carlson were the products of an era when the Court routinely inferred "causes of action" that were "not explicit" in the text of the provision that was allegedly violated. Abbasi, 582 U.S., at ___, 137 S.Ct., at 1855. As Abbasi recounted:
"During this `ancien regime,' ... the Court assumed it to be a proper judicial function to `provide such remedies as are necessary to make effective' a statute's purpose.... Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself." Ibid. (quoting Alexander v. Sandoval, 532 U.S. 275, 287 [121 S.Ct. 1511, 149 L.Ed.2d 517] (2001); J. I. Case Co. v. Borak, 377 U.S. 426, 433 [84 S.Ct. 1555, 12 L.Ed.2d 423] (1964)).
Bivens extended this practice to claims based on the Constitution itself. 582 U.S., at ___, 137 S.Ct., at 1855; Bivens, 403 U.S. at 402, 91 S.Ct. 1999 (Harlan, J., concurring in judgment) (Court can infer availability of damages when, "in its view, damages are necessary to effectuate" the "policy underpinning the substantive provisio[n]").
"Probable cause" is a term found in the language chosen by the framers. If the Court correctly interprets the Fourth Amendment as requiring probable cause for particular police action such as a search for guns, then it is the substance of the Fourth Amendment itself (as interpreted by the Court), not the remedy for a violation, which impairs the ability to enforce firearm laws. Immediate abolition of the exclusionary rule would not free officers to search for guns in violation of the substance of the Amendment. They remain bound by the Constitution.1 So even with the demise of the exclusionary rule, some criminal laws still will be hard to enforce. The cases that comprise the bulk of this Chapter assume that the remedy for an unconstitutional search and seizure is exclusion.