Simone Lawson
The United States Constitution guarantees certain rights to US citizens, but what about non-citizens? The Supreme Court has long held 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, non-citizens do not share all the rights of citizens and are subject to immigration law, which gives the executive branch broad authority over their entry and presence in the country. The Constitution also extends to refugees, guaranteeing them due process and consideration of their cases before they are returned to the countries they are fleeing. The question of whether the US Constitution protects non-citizens remains a complex and deeply ambivalent one, reflecting the American public's conflicting attitudes towards immigration.
| Characteristics | Values |
|---|---|
| Foreign nationals are considered "persons" within the meaning of the Constitution | Yes |
| Foreign nationals are protected by those 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 |
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What You'll Learn
The Supreme Court's ambivalent approach to the question
The Supreme Court has taken an ambivalent approach to the question of whether US nationals are guaranteed protection under the Constitution. On the one hand, the 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 for citizens. This stance reflects the Court's recognition that foreign nationals are entitled to certain fundamental rights and protections, even if they do not hold US citizenship.
However, the Court's approach has also been influenced by the complex and evolving nature of immigration law and policy in the US. In recent years, the Court has emphasised the President's authority to protect the national sovereignty of the United States by controlling its borders and admitting or excluding individuals based on the national interest. This includes preventing the admission of aliens who pose threats to public health, safety, and national security.
The Supreme Court's ambivalent approach can be attributed to the delicate balance between upholding constitutional rights and addressing practical concerns related to immigration and national security. The Court's decisions in this area have significant implications for the rights and protections afforded to foreign nationals living in the United States.
Overall, while the Supreme Court has recognised that foreign nationals are entitled to certain constitutional protections, its approach remains nuanced and context-dependent, reflecting the complex nature of immigration law and the competing interests at stake.
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The American public's xenophobic and xenophilic attitude towards immigrants
The American public's attitude towards immigrants has been described as both xenophobic and xenophilic. While 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, xenophobia and anti-immigrant extremism have deep roots in American society. This has been reflected in immigration policy changes, such as the Trump administration's executive orders that restricted legal immigration, deported undocumented immigrants, and denied asylum applications. Xenophobia has also been linked to decreased access to healthcare, unsafe and unfair working conditions, and xenophobic harassment and attacks.
Xenophobia, defined as prejudice or discrimination against immigrants, has a long history in the United States, dating back to the earliest waves of immigration at Ellis Island in the 19th and 20th centuries. While early xenophobia targeted immigrants from Europe and Asia, including the Irish, Italians, Chinese people, and Eastern European Jews, today it primarily focuses on Latin Americans and asylum seekers from the Near and Middle East.
The current xenophobic movement explicitly targets migrants and asylum seekers crossing the southern border, seeking to exclude them from positions of power, citizenship, or even residence in the United States. Movement leaders leverage social anxieties about demographic shifts, social change, and political and economic uncertainty to fuel xenophobia, spreading negative stereotypes and disinformation that dehumanize and criminalize immigrants and communities of color.
However, it is important to note that the American public's attitude towards immigrants is not solely xenophobic. There is also a xenophilic aspect, reflected in the Supreme Court's recognition of foreign nationals as "persons" under the Constitution. Additionally, the complex and comprehensive scheme outlined in the INA and the visa system aim to protect the national sovereignty of the United States by facilitating the admission of individuals whose presence serves the national interest while preventing the admission of those who pose threats to public health, safety, or national security.
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The guarantee of protection against invasion
The US Constitution guarantees protection against invasion. This is an essential feature of any sovereign nation, which has the authority to decide who and what may cross its territorial boundaries.
The Supreme Court of the United States has described this power as a "fundamental act of sovereignty", which "stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation".
The Constitution expressly limits to citizens only the rights to vote and to run for federal elective office. However, 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 those rights that the Constitution does not expressly reserve to citizens.
The ACLU and immigration advocates argue that non-citizens who have already received the required papers have the right to due process and entry. The Constitution even extends to refugees with no papers to at least have their cases considered before they are returned to the countries they are fleeing.
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The President's control over foreign affairs
The US Constitution does not expressly reserve any rights to US nationals, but it does guarantee certain rights to citizens, such as the right to vote and to run for federal elective office. Non-citizens are subject to immigration law, under which the executive branch has broad authority to determine whether they are allowed in the country.
The President's power over foreign affairs also includes the authority to defend national sovereignty. The Supreme Court has recognised the inherent right and duty of the Executive Branch to defend the nation against invasion, stating that "when Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power".
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The visa system and its health, safety and security concerns
The visa system in the United States is designed to protect the national sovereignty of the country by facilitating the admission of individuals whose presence serves the national interest and preventing the admission of those who do not. This includes aliens who pose threats to public health, safety, and national security. Prospective immigrants who use the visa system are screened for such health, safety, and security concerns while outside the country.
The US Constitution guarantees protection against invasion, and the President has the authority to suspend the physical entry of any alien engaged in the invasion across the southern border. This is done in coordination with the Secretary of Homeland Security, the Secretary of State, and the Attorney General, until the invasion at the southern border has ceased.
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 for citizens. This reflects the ambivalent approach of the Court and the xenophobic and xenophilic attitude of the American public toward immigrants.
The visa system helps ensure that only those who meet the health, safety, and security requirements are admitted into the country, protecting the national sovereignty and interests of the United States.
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Frequently asked questions
Yes, US nationals are protected under the Constitution.
No, foreign nationals do not share all the rights of citizens under the US Constitution. They are subject to immigration law, which gives the executive branch the authority to determine whether they are allowed in the country.
The right to vote and to run for federal elective office are reserved for citizens.
The Constitution states that refugees with no papers have the right to have their cases considered before they are returned to the countries they are fleeing.
The Constitution states that the US government cannot establish a preferred religion.
