Isabella Carter
The US Constitution does not specify whether non-citizens are afforded the same rights as citizens. While the Constitution makes no mention of citizens, instead referring to “the people”, legal uncertainty remains about who this includes and excludes. Non-citizens are not guaranteed the same rights as citizens, but they do have certain protections under the Constitution, including the right to due process, the right to be with family, and the right against unreasonable searches and seizures.
| Characteristics | Values |
|---|---|
| Right to vote | Non-citizens do not have the right to vote for the president or vice president. However, non-citizens in some states are allowed to vote in local elections. |
| Right to free speech | The First Amendment protects the rights of marginalized people to have a voice and does not allow the government to prefer some speakers over others based on their identity. Non-citizens are protected by the First Amendment. |
| Right to freedom of religion | The Constitution protects the right to freedom of religion for all people living in the US, including non-citizens. |
| Right to assembly | The First Amendment protects the right to assembly for all people living in the US, including non-citizens. |
| Right to due process | The Fifth Amendment protects the right to due process for all people living in the US, including non-citizens. |
| Right to equal protection under the law | The 14th Amendment ensures that non-citizens cannot be deprived of life, liberty, or property without due process and are entitled to equal protection under the law. |
| Right to education | The Supreme Court has ruled that undocumented immigrant children are entitled to a K-12 education under the Equal Protection Clause of the 14th Amendment. |
| Right to be free from unreasonable searches and seizures | The Fourth Amendment protects the right to be free from unreasonable searches and seizures for all people in the US, including non-citizens. However, there is a "border search exception" that allows the government to conduct warrantless searches within 100 miles of any US border. |
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What You'll Learn
Non-citizens and the First Amendment
The question of whether non-citizens are covered by the First Amendment of the US Constitution is a complex one, with legal ambiguity and ongoing debate surrounding this issue. The First Amendment itself does not specify whether it applies only to citizens, instead referring broadly to "the people". At the time the Constitution was written, many of "the people" were born outside of the US, introducing uncertainty about the inclusion and exclusion of certain groups.
Legal scholars and federal judges have differing opinions on the matter. Some argue that non-citizens, particularly unauthorized immigrants, are not protected by the First Amendment. This view was supported by the Department of Justice in a 2015 federal class-action lawsuit, where they contended that only immigrants who enter the country legally and have a "sufficient connection" to the US are afforded First Amendment protections. However, others disagree, citing the Supreme Court's Citizens United ruling, which opposed restrictions on political donations based on identity.
The Supreme Court has not provided a definitive ruling on this question, but there are notable cases that offer insights. In Reno v. American Arab Anti-Discrimination Committee, the Court addressed claims of First Amendment violations regarding the deportation of legal US residents who were not citizens. Justice Antonin Scalia's majority opinion stated that "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defence against his deportation." However, in an earlier case, United States ex rel. Knauff v. Shaughnessy (1950), Justice William O. Douglas asserted that "freedom of speech and of the press is accorded aliens residing in this country."
The legal status of individuals in the country plays a role in determining the extent of their protection by the First Amendment. For example, when evaluating whether to grant legal entry to the US, government officials may consider a person's associations and expressions. On the other hand, once an individual is lawfully present in the US, they are generally considered to have the same rights as citizens, including First Amendment protections.
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Non-citizens' right to due process
The US Constitution uses the terms "people" or "person" in many places instead of "citizen". Legal scholar and constitutional law professor Michael Kagen interprets this to mean that the First Amendment protects the rights of marginalized people to have a voice and does not allow the government to prefer some speakers over others based on their identity. Thus, the Bill of Rights protects everyone, including non-citizens, to exercise freedom of speech, religion, assembly, and to be free from unlawful government interference.
The Fifth Amendment states that "no person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law". The 14th Amendment also ensures that "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws". Thus, the right to due process applies to everyone in the US, including non-citizens.
The issue of due process is central to many immigration cases, including Reno v. Flores, a 1993 Supreme Court case that gained prominence due to the Trump administration's "zero-tolerance" immigration policy and the resulting surge in family separations at the border. The case led to an agreement requiring the government to release children to their parents, a relative, or a licensed program within 20 days. In the ruling, Justice Antonin Scalia wrote, "it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings".
However, recent policies have been eroding these constitutional protections by limiting access to legal representation and bypassing immigration courts. For instance, the Trump administration has pressed judges to allow the expedited deportations of men it claims are in the Tren de Aragua gang, without giving them a chance to plead their case before a judge. In another instance, attorneys for deported mothers were not given opportunities to contact their lawyers or families while in custody.
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Non-citizens' right to education
The US Constitution does not explicitly mention a "right to education". However, the Supreme Court has ruled that if citizen children have access to free public education, the same must be true for undocumented immigrant children. This is based on the 14th Amendment, which states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws".
In the 1973 case of San Antonio Independent School District v. Rodriguez, parents from a low-income, predominantly Hispanic district argued that it was discriminatory for their schools to receive significantly less funding per pupil than a wealthier neighbourhood. A three-judge panel in Texas agreed with the parents, deeming education a fundamental right under the Equal Protection Clause of the 14th Amendment. However, when the State of Texas appealed to the US Supreme Court, the justices overturned the Texas judges' decision, asserting that Texas had not violated its constitution and that education is not a fundamental right.
In another case, Plyler v. Doe, the Supreme Court ruled that undocumented children cannot be prohibited from enrolling in a public school. This was based on the 14th Amendment's Equal Protection Clause, which states that one's immigration status is not a sufficient basis for denying benefits afforded to other residents. This decision affirmed that undocumented children are "people" as per the 14th Amendment and are thus entitled to a K-12 education.
While the Constitution does not explicitly mention education, it is worth noting that every state in the US requires school attendance for minors. This is because education is recognised as crucial for a child's development, social and economic success, and the overall benefit of society. Despite this consensus, the means, mode, and regulation of education are largely left to state and local governments, resulting in variations in educational experiences across the country.
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Non-citizens' right to equal protection under the law
The US Constitution uses the terms "people" or "person" in many parts, instead of "citizen". Legal scholar and constitutional law professor Michael Kagen interprets this to mean that 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". Thus, non-citizens in the US are afforded certain rights, such as the freedom of speech, religion, assembly, and the right to equal protection under the law.
The Fifth Amendment states that "no person [...] shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law". This right to due process is also extended to non-citizens, including undocumented immigrants charged with a criminal offence. They are guaranteed the right to a speedy and public trial by jury, the right against unlawful searches and seizures, and the right to an attorney, among others.
The Fourteenth Amendment also ensures that "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws". The Supreme Court has interpreted this to mean that non-citizen children must be afforded a K-12 education, as children who are citizens have access to a free, public education. The Court has also ruled that state bars against the admission of aliens to the practice of law are unconstitutional, as the state could not meet the burden of showing that its denial of admission to aliens was necessary to accomplish a constitutionally permissible and substantial interest.
However, it is important to note that the right to equal protection under the law for non-citizens is not absolute. The Supreme Court has recognised a permissible state interest in distinguishing between citizens and non-citizens, particularly in the context of public employment and access to certain resources. Additionally, the governmental function" test acknowledges the distinction between citizens and non-citizens as fundamental to the definition and government of a state, giving governmental entities wider latitude in limiting the participation of non-citizens.
Furthermore, while the Constitution does not explicitly prohibit anyone from voting, it specifies who cannot be denied the right to vote. The Fourteenth Amendment, for example, grants the right to vote to men who are US citizens and over the age of 21, unless they have committed a crime. Congress has also passed laws prohibiting non-citizens from voting in certain elections.
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Non-citizens' right to freedom of religion
The US Constitution and its amendments, known as the Bill of Rights, guarantee that the government can never deprive people in the US of certain fundamental rights, including freedom of religion. The First Amendment to the US Constitution states that "everyone in the United States has the right to practice his or her own religion, or no religion at all".
The Constitution uses the terms "people" or "person" rather than "citizen" in many parts, and legal scholar and constitutional law professor Michael Kagen has argued that the First Amendment "protects the rights of marginalised people to have a voice". This means that non-citizens are also covered by the right to freedom of religion.
However, there is legal uncertainty about who is included and excluded by the First Amendment, and this question has come up many times in US laws and before the Supreme Court. The Supreme Court has not ruled definitively on the question, and while some legal scholars and federal judges have argued that the First Amendment does not apply to unauthorised immigrants, others have argued the opposite, citing the Supreme Court's Citizens United ruling that opposed restrictions on political donations based on identity.
In practice, the right to freedom of religion for non-citizens can be more complex. For example, while non-citizen children must be afforded a K-12 education, the organised distribution of Bibles or any other holy book during the school day is unconstitutional. Similarly, graduation prayers in public schools are unconstitutional, as they would give non-believers or children of other faiths the feeling that their participation is required.
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Frequently asked questions
The US Constitution does afford certain rights to non-citizens, including the right to due process, the right to be with family, the right against unreasonable searches and seizures, and the right to education. The Fourth Amendment, which protects against unreasonable searches and seizures, applies to everyone in the US, including undocumented immigrants. The Fifth Amendment also applies to non-citizens, as the Supreme Court ruled in 1898 that the term "person" under the Fifth Amendment applied to aliens living in the US. The 14th Amendment also ensures that "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Non-citizens do not have the same rights as US citizens. They are subject to immigration law, and the executive branch has broad authority to determine whether they can remain in the country. Additionally, the right to vote is generally reserved for citizens, although there are some exceptions, such as in local elections in certain jurisdictions.
The First Amendment's protection of free speech and freedom of religion does extend to non-citizens, but the question of how this applies in practice is complex and depends on the individual's legal status. The Supreme Court has not ruled definitively on this question, but Justice Antonin Scalia has stated that "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation."
