Jonah Patel
The United States Constitution provides the same protections to all persons on its soil, not just its citizens. While there are some rights exclusive to citizens, such as voting in presidential elections, most rights are afforded to everyone on US land, including immigrants, asylum seekers, and undocumented workers. The Constitution's use of the terms “people” or “person rather than citizen in many parts extends basic rights, such as freedom of religion and speech, the right to due process, and equal protection under the law, to both citizens and non-citizens. The Fourteenth Amendment, for instance, guarantees birthright citizenship to every child born within the jurisdiction of the United States, regardless of their parents' immigration or citizenship status.
| Characteristics | Values |
|---|---|
| Who does the US Constitution apply to? | All persons on US soil, not just citizens. |
| What rights are afforded to non-citizens? | Freedom of religion and speech, the right to due process, equal protection under the law, the right to a speedy and public trial by jury, the right against unlawful searches and seizures, and the right to counsel. |
| What rights are afforded to citizens? | The right to vote, the right to assemble, the right to bear arms, and the right to a trial by jury. |
| What are the protections under the 14th Amendment? | No particular group can be discriminated against unlawfully, and no state can deprive any person of life, liberty, or property without due process of law. |
| What is birthright citizenship? | Birthright citizenship is the automatic granting of citizenship to children upon their birth, based on either ancestry or birthplace. |
| How is birthright citizenship determined in the US? | The US uses a combination of unrestricted birthplace-based citizenship and restricted ancestry-based citizenship. Anyone born in the US is automatically a citizen, regardless of their parents' citizenship status. |
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What You'll Learn
The right to due process
The United States Constitution and its Bill of Rights provide protections for all persons on US soil, not just its citizens. 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 means that the right to due process applies to everyone in the US, including immigrants, asylum seekers, undocumented workers, and visitors.
The Supreme Court has interpreted the Due Process Clause to include certain unenumerated rights, such as the "right to privacy", which was inferred from the "penumbras", or shadowy edges, of certain amendments. For example, in Griswold v. Connecticut (1965), the Court held that the criminal prohibition of contraceptive devices for married couples violated privacy rights protected by the Due Process Clause.
However, the interpretation of the Due Process Clause has been controversial. Critics argue that judges are making determinations of policy and morality that should be left to legislators. Additionally, the Due Process Clause has been used to strike down economic regulations and labour laws, which has been unpopular with progressives and mainstream Americans.
In the context of immigration, the right to due process is particularly important. While the Constitution guarantees certain rights to all persons on US soil, immigrants may face challenges in asserting these rights. In some cases, immigrants may be deported without a hearing, as seen during the Trump administration, when thousands of immigrants were charged criminally and tried en masse.
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Freedom of speech and religion
The United States Constitution and its amendments provide protections for all persons on US soil, not just its citizens. This includes immigrants, asylum seekers, undocumented workers, and visitors. While certain rights are exclusive to citizens, such as voting in presidential elections, most rights are guaranteed for all. This means that regardless of citizenship status, the Constitution ensures freedom of speech and religion for anyone present in the United States.
The First Amendment of the US Constitution explicitly guarantees freedom of religion and speech. It states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The First Amendment, therefore, acts as a safeguard against federal government interference in matters of religious freedom, freedom of the press, and freedom of expression.
The freedom of religion guaranteed by the First Amendment can be understood through two key clauses: the free exercise clause and the establishment clause. The free exercise clause ensures that individuals can practice their religion without government interference. Conversely, the establishment clause prevents the federal government from establishing a national religion or favoring one religion over another. This concept, often referred to as the "separation of church and state," ensures religious neutrality on the part of the government.
The freedom of speech component of the First Amendment prohibits government entities from restricting an individual's ability to express their opinions or ideas. This means that the government cannot retaliate against someone based on their speech or restrict their right to peacefully assemble and petition the government. The Supreme Court has interpreted the First Amendment to mean that "debate on public issues should be uninhibited, robust, and wide-open."
In practice, ensuring freedom of speech and religion for all persons on US soil can be complex. While the Constitution provides these rights to everyone, regardless of citizenship, there have been instances where immigrants have faced challenges in asserting these rights. This includes issues related to due process, legal representation, and family separation. Nonetheless, the Constitution remains the foundational document guaranteeing these fundamental freedoms for all people within the United States.
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Right to assemble peacefully
The United States Constitution provides the same protections to all persons on US soil, not just its citizens. The Constitution's Human Rights Protections afford anyone on US soil the right to assemble peacefully and petition the government for relief of wrong or injury without fear of retaliation. This right to freedom of assembly is recognized as a human right, a political right, and a civil liberty. It is often used in the context of the right to protest and is included in the Universal Declaration of Human Rights' Article 20.
The right to peacefully assemble includes the right to freely choose the location and timing of the assembly, including public streets, roads, and squares. It also includes the right to assemble online. This right is essential for democracy, as it allows individuals to express, promote, pursue, and defend their ideas and interests. It also serves as a vehicle for the exercise of other rights, such as freedom of expression and the right to take part in the conduct of public affairs.
While the Constitution guarantees these rights, assuring them can be tricky. In some cases, immigrants' rights may be violated, and they may be deported without a hearing. Additionally, peaceful protestors may be subject to arrest, violence, threats, or intimidation, and legal provisions may criminalize peaceful assemblies. Governments may also violate the right to freedom of assembly to suppress dissent and critical voices.
To address these challenges, organizations like the Human Rights Committee and UN Human Rights work to monitor and protect the right to freedom of assembly. They provide technical advice, tools, and guidance to stakeholders and conduct monitoring and reporting on how these rights are protected in practice. They also advise on the legal framework needed for the operation of associations and the management of protests, including the use of force.
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Birthright citizenship
The Fourteenth Amendment to the United States Constitution guarantees birthright citizenship to every child born "within the jurisdiction of the United States". The Amendment states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside".
The 1898 Supreme Court case of United States v. Wong Kim Ark established an important precedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment, cementing birthright citizenship for children of all immigrants. This precedent was further supported by the 1844 New York court case of Lynch v. Clarke, which ruled that Julia Lynch, born in the US to two Irish parents who were temporary visitors, was an American citizen at birth, and that her prolonged residence in Ireland after her birth did not affect her birthright citizenship.
For over a century, anyone born on US soil has automatically been conferred citizenship at birth, regardless of their parents' immigration or citizenship status. However, this principle has been challenged by anti-immigrant political factions, particularly in attempts to deny citizenship to children of undocumented immigrants.
On January 20, 2025, President Trump issued an executive order purporting to deny birthright citizenship to children of undocumented parents or those with temporary status. Litigation ensued, and the order's implementation has been blocked by the courts.
It is important to note that while birthright citizenship is guaranteed by the Fourteenth Amendment, there are certain exceptions outlined by the US government. These include cases where the child's mother was unlawfully present in the US, or when the mother's presence was lawful but temporary, and the father was not a US citizen or lawful permanent resident at the time of birth.
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Right to legal counsel
The United States Constitution provides the same protections to all persons on US soil, not just its citizens. While there are some rights exclusively for citizens, such as voting in presidential elections, most other rights are for everyone—immigrants, asylum seekers, undocumented workers, and visitors. The Constitution uses the terms “people” or “person” rather than “citizen”, which means that basic rights such as freedom of religion and speech, the right to due process, and equal protection under the law apply to citizens and noncitizens.
The right to legal counsel is a critical component of due process and aims to ensure a fair trial. In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, the government must appoint one or pay the defendant's legal expenses. This is often included in national constitutions, with 153 out of 194 constitutions currently in force having language to this effect.
In the US, the Sixth Amendment guarantees a criminal defendant's right to counsel. This means that defendants have a constitutional right to an attorney's representation during criminal proceedings. The Supreme Court has ruled that the government must appoint an attorney to defendants who cannot afford one. This was decided in the 1963 case of Gideon v. Wainwright, which applied the right to counsel to state prosecutions for felony offenses through the incorporation doctrine.
The right to counsel in the US only applies to criminal prosecutions, and for certain misdemeanors, there is not a guaranteed right to counsel. Deportation proceedings are generally civil rather than criminal cases, so the right to legal counsel does not apply. However, anyone accused of a Commonwealth crime or a crime falling within the jurisdiction of the federal government has the right to ask a judge for counsel, and the judge may appoint a lawyer if the defendant cannot afford one.
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Frequently asked questions
Yes, the US Constitution applies to anyone on US soil, regardless of citizenship status.
The Constitution provides the same protections to all persons on US soil. Basic rights such as freedom of religion and speech, the right to due process, and equal protection under the law apply to citizens and noncitizens. 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."
While the Constitution provides rights to all persons on US soil, there are certain rights that are exclusive to US citizens, such as the right to vote in presidential elections. The Fourteenth Amendment states that "all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens."
Undocumented immigrants have certain rights under the Constitution, such as the right to counsel if accused of a felony. However, they may face challenges in asserting their rights and could be deported without a hearing.
Birthright citizenship refers to citizenship granted by virtue of being born in a country, regardless of the parents' citizenship status. The US Constitution, through the Fourteenth Amendment, guarantees birthright citizenship to those born on US soil, with some exceptions for children of undocumented immigrants or temporary visitors.
