Malcolm Rivera
The US Constitution does not specify whether the First Amendment applies only to citizens. Instead, it refers to 'the people'. While the Supreme Court has not ruled definitively on the question, the Department of Justice has argued that the First Amendment and other protections apply only to immigrants who enter legally and who have a 'sufficient connection' to the US. However, some argue that the laws apply to everyone physically on US soil, whether or not they are a citizen.
| Characteristics | Values |
|---|---|
| The Constitution's use of the term "people" | Unclear whether this includes unauthorized immigrants |
| The First Amendment | Does not specify whether it applies only to citizens |
| The First Amendment's application to unauthorized immigrants | Not ruled on by the Supreme Court |
| The First Amendment's application to non-citizens | Depends on their legal status in the country |
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What You'll Learn
The First Amendment and freedom of speech
The First Amendment does not make clear whether "the people" given the freedoms of speech, religion, 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 Constitution uses the term "people" or "person" rather than "citizen", and there is legal uncertainty about who this includes and who it excludes. The group with the most questions around whether and how the First Amendment applies to them are those with no legal status: unauthorized immigrants.
In 2015, the Department of Justice argued in a federal class action lawsuit that unauthorized immigrants do not get First Amendment protections. The DOJ reasoned that the Supreme Court previously suggested First Amendment and other protections apply only to immigrants who enter legally and who have "sufficient connection" to the U.S. However, the Supreme Court has not ruled definitively on the question.
The issue of freedom of speech for non-citizens is complex. While the First Amendment grants the freedom of speech to "the people", it is not clear whether this includes non-citizens. Those who argue that non-citizens are not protected by the First Amendment may point to the fact that the amendment was written with the understanding that "the people" refers only to citizens. On the other hand, some may argue that the use of the term "people" rather than "citizen" in the Constitution indicates that the amendment was intended to apply to everyone physically present in the United States, regardless of their citizenship status.
The Supreme Court has not provided a clear answer on this issue, and the application of the First Amendment to non-citizens remains a matter of legal interpretation. In practice, the freedom of speech for non-citizens may depend on their legal status in the country. For example, when evaluating whether someone may be granted legal entry into the U.S., government officials may ask about a person's associations with other people or examine what they have said, written or otherwise done.
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The right to due process
The issue of due process is central to many immigration cases, including Reno v. Flores, a 1993 Supreme Court case that has gained renewed attention due to the increase in family separations. While the Constitution uses the terms "people" or "person" rather than "citizen", there is legal ambiguity regarding who is included and excluded from these protections. This ambiguity is particularly relevant for unauthorized immigrants, as the Supreme Court has not issued a definitive ruling on whether the First Amendment applies to them.
In 2015, the Department of Justice (DOJ) argued in a federal class-action lawsuit that unauthorized immigrants are not entitled to First Amendment protections. The DOJ's reasoning was based on the Supreme Court's previous suggestion that these protections are limited to immigrants who enter the country legally and have a "sufficient connection" to the US. However, the First Amendment itself does not explicitly define "the people" as a narrow group of citizens or a broader category that includes non-citizens.
The evaluation of an individual's legal status in the country can depend on various factors, including their associations with other people and their speech, writings, or other actions. While the Supreme Court has not provided a clear resolution, the question of whether non-citizens are fully protected by the First Amendment remains a subject of debate and interpretation.
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The right to equal protection under the law
The Constitution does not specify whether the First Amendment applies only to citizens. At the time it was written, many of 'the people' were born outside the US. Whether someone is fully protected by the First Amendment can depend on their legal status in the country.
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 issue of due process is central to many immigration cases, including Reno v. Flores, a 1993 Supreme Court case that has returned to the spotlight with the surge in family separations.
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The Immigration and Nationality Act
The 1952 Act upheld the national origins quota system established by the Immigration Act of 1924, reinforcing this controversial system of immigrant selection. It also ended Asian exclusion from immigrating to the United States and introduced a system of preferences based on skill sets and family reunification.
The 1965 Act created a seven-category preference system that gives priority to relatives and children of U.S. citizens. It significantly altered the demographic mix in the country, opening entry to the U.S. to immigrants other than Western and Northern Europeans.
The Constitution does not specify whether the First Amendment applies only to citizens. While it refers to 'the people', it is unclear whether this includes non-citizens. The Supreme Court has not ruled definitively on the question. However, many of the basic rights outlined in the Constitution, such as the freedom of religion and speech, the right to due process and equal protection under the law, apply to citizens and noncitizens.
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The Fifth Amendment
The Constitution does not specify whether the First Amendment applies only to citizens. Instead, it refers to "the people". At the time the Constitution was written, many of "the people" were born outside the US.
The Supreme Court has not yet ruled definitively on whether the First Amendment applies to people who are in the US illegally. In 2015, the Department of Justice argued in a federal class action lawsuit that unauthorized immigrants do not get First Amendment protections. However, the Supreme Court has previously suggested that First Amendment and other protections apply only to immigrants who enter legally and who have a "sufficient connection" to the US.
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Frequently asked questions
The US Constitution does not specify whether the First Amendment applies only to citizens. However, the Department of Justice has argued that unauthorized immigrants do not get First Amendment protections.
The First Amendment protects the freedoms of religion, speech, press, assembly and petition.
No, the US Constitution uses the terms 'people' or 'person' rather than 'citizen'.
Yes, 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 issue of due process is at the heart of many immigration cases, including Reno v. Flores, a 1993 Supreme Court case that has returned to the spotlight with the surge in family separations.
