Malcolm Rivera
The question of whether citizens of other countries are protected by the constitution is a complex one. While the Supreme Court has insisted that foreign nationals living in the US are persons within the meaning of the Constitution, and are therefore protected by the rights that the Constitution does not expressly reserve to citizens, the Constitution itself leaves room for interpretation. The First Amendment, for example, does not make clear whether the people given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category that includes non-citizens.
| Characteristics | Values |
|---|---|
| Citizens abroad | Entitled to protection |
| Citizens at home | Entitled to protection |
| Foreign nationals | Protected by rights that the Constitution does not expressly reserve to citizens |
| Non-citizens | Have rights under the U.S. Constitution |
| Unauthorized immigrants | The Supreme Court has not ruled on whether they are protected by the First Amendment |
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What You'll Learn
Foreign nationals are protected by the US Constitution
However, the Constitution leaves room for interpretation when it comes to unauthorized immigrants. The Supreme Court has not ruled directly on this issue, and the First Amendment itself does not make clear whether "the people" given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category, some of whom come to the US to visit, learn and work.
The question of whether foreign nationals are entitled to the same constitutional rights as citizens is a difficult one, reflecting the ambivalent approach of the Supreme Court and the alternately xenophobic and xenophilic attitude of the American public toward immigrants.
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Non-citizens' rights under the US Constitution
The US Constitution does not expressly reserve rights to citizens only, except for the right to vote and to run for federal elective office. This means that non-citizens are protected by the rights that the Constitution does not expressly reserve to citizens.
The Supreme Court has insisted for more than a century that foreign nationals living in the US are "persons" within the meaning of the Constitution, and are protected by the rights that the Constitution does not expressly reserve to citizens. However, the Court has also shown an ambivalent approach to this question, reflecting the xenophobic and xenophilic attitude of the American public toward immigrants.
The First Amendment does not make clear whether "the people" given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category, some of whom come to the United States to visit, learn and work.
In conclusion, while non-citizens are generally protected by the US Constitution, there may be some rights that are reserved for citizens only, and the interpretation of the Constitution in this regard can be complex and subject to change.
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The Supreme Court's ambivalent approach to foreign nationals' rights
The Supreme Court has taken an ambivalent approach to foreign nationals' rights, reflecting the American public's ambivalent attitude towards immigrants. On the one hand, the Court has long insisted that foreign nationals living in the US are "persons" within the meaning of the Constitution and are therefore protected by the rights that the Constitution does not expressly reserve for citizens. These rights include equality between non-nationals and citizens, as well as the freedoms of religion, speech, press, assembly and petition.
However, the Court has also recognised that the Constitution expressly limits certain rights to citizens, such as the right to vote and to run for federal elective office. This suggests that foreign nationals are not entitled to the same constitutional rights as citizens.
The Supreme Court's approach to foreign nationals' rights has been deeply ambivalent, with no clear ruling that resolves the question of whether non-citizens are protected by the Constitution. This leaves room for interpretation, especially when it comes to unauthorised immigrants.
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The First Amendment's protection of non-citizens
The question of whether the First Amendment applies to non-citizens is not easily answered with a simple yes or no. The Constitution leaves room for interpretation, especially as it applies to unauthorised immigrants. The First Amendment itself does not make clear whether 'the people' given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category, some of whom come to the United States to visit, learn and work.
The Supreme Court has not ruled in a direct way that neatly resolves it. However, on the one hand, the Court has insisted for more than a century that foreign nationals living in the US are 'persons' within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, equality between non-nationals and citizens would appear to be the constitutional rule.
Non-citizens are not categorically denied any protections of the First Amendment. But First Amendment protections are not absolute in any case (e.g. common law fraud, bribes, and genuine threats are not protected). There are some circumstances when citizenship would be relevant to whether an exception to First Amendment protections under some sort of scrutiny or balancing test. For example, the First Amendment does not extend to a right to have full participation in the electoral process.
Legal scholar and constitutional law professor Michael Kagen wrote in a 2016 Boston College law review article: "As the court explained (in Citizens United vs. FEC), the First Amendment protects the rights of marginalised people to have a voice and does not allow the government to prefer some speakers over others based on their identity."
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The President's duty to protect American citizens abroad
The President has a duty to protect American citizens abroad. This is an inherent power of the Chief Executive, and it is the great object and duty of the Government to protect the lives, liberty, and property of the people, whether they are abroad or at home. This duty extends to the use of armed forces if deemed necessary.
The Constitution does not expressly reserve rights to citizens only, and the Supreme Court has insisted that foreign nationals living in the US are "persons" within the meaning of the Constitution and are protected by the rights that the Constitution does not expressly reserve to citizens. The First Amendment does not make clear whether "the people" given the freedoms of religion, speech, press, assembly, and petition are a narrow group of citizens or a broader category, some of whom come to the United States to visit, learn and work.
The equality between non-nationals and citizens would appear to be the constitutional rule, and non-citizens have rights, too, even under the US Constitution.
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Frequently asked questions
The US Constitution does not expressly reserve rights to citizens, except for the right to vote and to run for federal elective office. The Supreme Court has insisted that foreign nationals living in the US are "persons" within the meaning of the Constitution and are protected by the rights that the Constitution does not expressly reserve to citizens.
Non-citizens are also protected by the US Constitution. The First Amendment does not make clear whether "the people" given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category, some of whom come to the United States to visit, learn and work.
Yes, the US Government has a duty to protect the lives, liberty, and property of its citizens abroad.
