Jonah Patel
The question of whether foreign nationals are protected by the constitution is a complex one, with the Supreme Court taking an ambivalent approach. While the Court has insisted that foreign nationals are 'persons' within the meaning of the Constitution, and are therefore protected by the rights that the Constitution does not expressly reserve to citizens, there is room for interpretation when it comes to unauthorised immigrants. 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 some non-citizens.
| Characteristics | Values |
|---|---|
| Foreign nationals are considered "persons" within the meaning of the Constitution | Yes |
| Foreign nationals are protected by rights that the Constitution does not expressly reserve to citizens | Yes |
| Foreign nationals have the right to vote | No |
| Foreign nationals have the right to run for federal elective office | No |
| Foreign nationals have the right to due process and entry | Yes |
| Foreign nationals have the right to challenge illegal detentions | Yes |
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What You'll Learn
- The Supreme Court's ambivalent approach to foreign nationals' rights
- The First Amendment's lack of clarity on the rights of non-citizens
- The right to due process for non-citizens with required papers
- The right to challenge illegal detentions for non-citizens
- The First Amendment's freedom of religion and the treatment of Muslim immigrants
The Supreme Court's ambivalent approach to foreign nationals' rights
The Supreme Court has taken an ambivalent approach to the rights of foreign nationals. 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. The Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, so equality between non-nationals and citizens would appear to be the constitutional rule.
However, the Supreme Court has also held that "whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned". This suggests that the executive branch and the Attorney General have broad discretion to determine which refugees to allow in and which to reject.
The Supreme Court has also not ruled directly on whether the First Amendment's freedoms of religion, speech, press, assembly and petition apply to non-citizens. The First Amendment itself does not make clear whether "the people" given these freedoms are a narrow group of citizens or a broader category that includes some non-citizens.
In a 2008 decision, the Supreme Court held that the basic right of habeas corpus to challenge illegal detentions extends even to non-citizens on foreign territory. This suggests that the Supreme Court may be willing to recognize certain fundamental rights for non-citizens, even when they are not explicitly mentioned in the Constitution.
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The First Amendment's lack of clarity on the rights of non-citizens
The First Amendment does not make clear whether non-citizens are protected by the Constitution. The Supreme Court has not ruled directly on the matter, leaving room for interpretation. The First Amendment itself does not specify whether "the people" given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category, which may include some non-citizens.
The Supreme Court has held that foreign nationals are "persons" within the meaning of the Constitution and are protected by those rights that the Constitution does not expressly reserve to citizens. The Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, suggesting that equality between non-nationals and citizens is the constitutional rule.
However, the Trump administration has pointed to the broad discretion given to the executive branch and the Attorney General to determine which refugees to allow into the country. U.S. law is inconsistent on how to treat foreign nationals, with a line of Supreme Court decisions holding that the procedure authorized by Congress is due process for an alien denied entry. On the other hand, the ACLU and immigration advocates argue that non-citizens who have already received the required papers have the right to due process and entry.
In 2008, the U.S. Supreme Court held that the basic right of habeas corpus to challenge illegal detentions extends even to non-citizens on foreign territory. The American Civil Liberties Union and many legal scholars also believe that Trump's order to single out Muslim immigrants for discriminatory treatment violates the First Amendment freedom of religion.
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The right to due process for non-citizens with required papers
The Constitution does not expressly reserve any rights to citizens, except the right to vote and to run for federal elective office. This implies that non-citizens with required papers are entitled to the same rights and freedoms as citizens, including the right to due process.
However, the Constitution leaves room for interpretation, especially as it applies to unauthorized immigrants. The First Amendment does not make clear whether "the people" given certain freedoms are a narrow group of citizens or a broader category that includes non-citizens.
In a 2008 decision, the Supreme Court held that the basic right of habeas corpus to challenge illegal detentions extends even to non-citizens on foreign territory. This suggests that non-citizens with required papers may be entitled to certain rights and protections under the Constitution.
Overall, while the issue is complex and open to interpretation, it appears that non-citizens with required papers are entitled to due process and other rights and freedoms under the Constitution.
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The right to challenge illegal detentions for non-citizens
The Supreme Court has held that foreign nationals are "persons" within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. The Constitution expressly limits to citizens only the rights to vote and to run for federal elective office.
However, the Constitution leaves room for interpretation when it comes 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 held that the basic right of habeas corpus to challenge illegal detentions extends even to non-citizens on foreign territory. In a 2008 case, Boumediene v. Bush, the Court applied this right to enemy combatants held at the U.S. base in Guantanamo Bay.
The ACLU and immigration advocates argue that non-citizens who have already received the required papers have the right to due process and entry.
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The First Amendment's freedom of religion and the treatment of Muslim immigrants
The First Amendment's freedom of religion is protected by the Establishment Clause and the Free Exercise Clause. These clauses, which are part of the Bill of Rights, ensure that people can practice their religion without government interference and that the government cannot establish a national religion or favour one religion over another.
The First Amendment does not specify whether 'the people' who are given the freedom of religion are a narrow group of citizens or a broader category, which has left room for interpretation. The Supreme Court has not ruled directly on this issue, but it has been decided that non-citizens have the right to due process and entry, and the right of habeas corpus to challenge illegal detentions.
The treatment of Muslim immigrants has been a First Amendment issue, particularly regarding the wearing of the hijab in public. Most school districts in the US allow students to wear headscarves, but three states ban teachers from wearing religious clothing. Outside of schools, proponents of the hijab have had mixed success. The American Civil Liberties Union and other legal scholars believe that Trump's order to single out Muslim immigrants for discriminatory treatment violates the First Amendment's freedom of religion.
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Frequently asked questions
Yes, the Supreme Court has insisted that foreign nationals are "persons" within the meaning of the Constitution, and are protected by the rights that the Constitution does not expressly reserve to citizens.
The Constitution still applies to non-citizens blocked from entering the US. In 2008, the Supreme Court held that the basic right of habeas corpus to challenge illegal detentions extends even to non-citizens on foreign territory.
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.
