Jonah Patel
There is a common misconception that the US Constitution only applies to US citizens. While some passages in the Constitution explicitly state that certain rights are reserved for citizens, such as the right to vote, many parts of the Constitution refer to people or persons, affording the same rights and protections to citizens and non-citizens alike. This includes basic rights such as freedom of religion and speech, the right to due process and equal protection under the law.
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What You'll Learn
Non-citizens' rights to due process and entry
The US Constitution applies to citizens and non-citizens alike. Many parts of the Constitution use the term "people" or "person" rather than "citizen". These laws apply to everyone physically on US soil, whether or not they are a citizen.
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".
Due process guarantees everyone in America, including non-citizens, the right to fair treatment and legal hearings when their freedom is at risk. Non-citizens facing deportation have a right to due process, which usually includes a hearing before a judge. However, current policies are making it more difficult for non-citizens to get a fair hearing. For example, decisions are being rushed, the authority of immigration judges is being limited, and people are being removed from the US through rapid deportations that deny them the opportunity to present their case to a judge.
The right to vote is one right that is reserved for citizens. The 14th Amendment says that men who are US citizens and over the age of 21 must be allowed to vote, unless they have committed a crime. It wasn't until 1926 that all states passed laws barring non-citizens from voting. Congress passed a law 70 years later prohibiting illegal immigrants from voting for certain offices. If you are not a US citizen, voting in a federal election could land you in prison for up to three years or lead to deportation. However, some states allow local governments to decide whether non-citizens can vote in local elections.
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The 14th Amendment and non-citizen children's right to education
There is a common misconception that the US Constitution applies only to US citizens. However, this is not true, as the 14th Amendment 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 14th Amendment, passed by Congress on June 13, 1866, and ratified on July 9, 1868, extended liberties and rights granted by the Bill of Rights to formerly enslaved people. It also granted citizenship to "all persons born or naturalized in the United States". The Amendment has been used to protect the right to public education for all, regardless of immigration status. In the case of Plyler v. Doe, the Supreme Court ruled that a Texas statute that withheld state funds for the education of children who were not legally admitted to the US and allowed local school districts to deny enrollment to such children, violated the Equal Protection Clause of the 14th Amendment. The Court stated that while education was not a fundamental right under the US Constitution, states could not "deny a discrete group of innocent children the free public education that it offers to other children residing within its borders".
The 14th Amendment has also been used to end the discriminatory practice of segregating students based on race in public schools. All public schools that had segregated students were required to desegregate or face claims that they violated the 14th Amendment. In addition, the Amendment protects a parent's right to direct the educational upbringing of their child. For example, in Meyer v. Nebraska, the Supreme Court ruled that a state statute that prohibited the teaching of foreign languages violated the 14th Amendment.
In summary, the 14th Amendment protects the right to public education for all persons within the United States, including non-citizen children, and ensures that they are not unlawfully discriminated against in the process.
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The right to vote
The 14th Amendment states that men who are US citizens and over the age of 21 must be allowed to vote, unless they have committed a crime. The 15th Amendment prohibits anyone from denying the right to vote based on race, and the 19th Amendment prohibits denying the right to vote based on sex. The 26th Amendment, ratified in 1971, lowered the voting age for all elections to 18.
The Voting Rights Act of 1965 secured voting rights for adult citizens of all races and genders in the form of federal laws that enforced the amendments. The Act also required certain places to provide election materials in languages besides English, and it placed limits on certain states with a history of voter discrimination.
While the right to vote is generally afforded to citizens, there are some exceptions. For example, noncitizens in Chicago have been allowed to vote for the school board since 1989, and San Francisco and Maryland are also giving noncitizens the right to vote in some local elections. Additionally, the Supreme Court has ruled that undocumented children cannot be prohibited from enrolling in public school, as they are considered "people" under the 14th Amendment and are therefore entitled to equal protection under the law.
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The right to free speech
There is a common misconception that the US Constitution and its Bill of Rights apply only to US citizens. However, this is not the case, as the 14th Amendment ensures that no particular group is discriminated against unlawfully. The Fifth Amendment also 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 First Amendment to the US Constitution, which guarantees freedom of speech, does not make a distinction between citizens and non-citizens. The text refers to "the people", which can be interpreted as any person who is validly within the territory of the country. This interpretation is supported by the Supreme Court's precedent, which has held that "freedom of speech and of the press is accorded aliens residing in this country".
However, the Supreme Court has also ruled that First Amendment protections do not always extend to non-citizens. For example, in 1987, the Court held that denying a US visa to a non-citizen for their advocacy of communism did not violate their freedom of speech. Similarly, the USA Patriot Act of 2001 targeted certain speech and association activities by non-citizens, allowing for their deportation for fundraising for or associating with groups deemed to be terrorist organizations by the US government.
In terms of how these rights play out in practice, the situation is more complex. While non-citizens are generally entitled to the same freedom of speech as citizens, they may face additional challenges and considerations, such as the border search exception and the potential for deportation.
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The right to bear arms
There is a common misconception that the US Constitution applies only to US citizens. However, this is not entirely true. While certain rights are explicitly reserved for citizens, such as the right to vote, many other rights apply to all "persons" or "people" within US jurisdiction.
The Second Amendment, which protects the right to bear arms, is one of the most debated and controversial parts of the US Constitution. It states:
> "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The interpretation of this amendment has been a source of much debate, with two main theories emerging: the individual rights theory and the collective rights theory.
The individual rights theory holds that the Second Amendment creates an individual constitutional right for citizens to possess firearms. Under this interpretation, the US Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, makes such prohibition presumptively unconstitutional. This view was strengthened by the 2008 District of Columbia v. Heller case, where the US Supreme Court struck down a Washington DC law prohibiting handgun possession as a violation of the Second Amendment. The Court interpreted the amendment as establishing an individual right for US citizens to possess firearms, with certain exceptions for weapons that cannot be used for law-abiding purposes, such as sawed-off shotguns.
On the other hand, the collective rights theory argues that the Second Amendment was intended only to restrict Congress from legislating away a state's right to self-defense. According to this theory, citizens do not have an individual right to possess guns, and legislative bodies at the local, state, and federal levels have the authority to regulate firearms without implicating a constitutional right.
While the debate continues, it is important to note that the right to bear arms is not absolute. The Supreme Court has acknowledged that this right "ought not... be abused to the disturbance of the public peace." Additionally, certain regulations prohibiting the possession of specific types of weapons, such as dangerous and unusual weapons, have been upheld. For example, the US Supreme Court has mentioned the Second Amendment in the 1820 Houston v. Moore case, and in the Dred Scott decision of 1857, the Court stated that if African Americans were considered US citizens, they would have the right to "keep and carry arms wherever they went."
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Frequently asked questions
Yes, the US Constitution applies to non-citizens. Many parts of the Constitution use the terms "people" or "person" instead of "citizen", and those laws apply to everyone on US soil. This includes the right to due process, freedom of religion, and equal protection under the law.
No, the 14th Amendment states that men who are US citizens and over the age of 21 must be allowed to vote, unless they have committed a crime. The 15th Amendment prohibits anyone from denying the right to vote based on skin colour, and the 19th Amendment prohibits denying the right to vote based on sex.
There is no "right to education" in the Constitution. However, the 14th Amendment states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws". In the case of Plyler v. Doe, the Supreme Court ruled that undocumented immigrant children cannot be prohibited from enrolling in a public school.
No, the Constitution does not give non-citizens the right to enter the US. However, the Constitution does extend to refugees with no papers to have their cases considered before they are returned to the countries they are fleeing.
