Simone Lawson
The U.S. Constitution and its amendments guarantee certain rights and freedoms to citizens, but what about non-citizens living in foreign countries? The Constitution does not explicitly specify whether it applies only to citizens within U.S. borders or extends beyond. However, the Supreme Court has ruled that foreign nationals living in the U.S. are considered persons within the Constitution's meaning, granting them certain rights, such as due process and freedom of speech, that are not exclusively reserved for citizens. The First Amendment, for example, protects the freedom of speech for all people, which has been interpreted to include non-citizens like students and performers critical of U.S. policies. While non-citizens are subject to immigration laws, they are still entitled to certain constitutional protections, as seen in the Boumediene v. Bush case, where the right of habeas corpus was extended to non-citizens on foreign territory.
| Characteristics | Values |
|---|---|
| Does the US Constitution apply to non-citizens? | Yes, non-citizens are protected by the Constitution, but they do not share all the rights of citizens. |
| 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. | |
| The First Amendment does not specify whether it applies only to citizens. | |
| The Fourth and Fifth Amendments protect non-citizens from arbitrary seizure of property and guarantee due process and the right to a jury. | |
| The Fifth Amendment protects non-citizens from self-incrimination and deprivation of life, liberty, or property without due process. | |
| The Fourteenth Amendment guarantees equal protection under the law, including access to public education for undocumented immigrant children. | |
| The Fifteenth Amendment prohibits denying the right to vote based on race. | |
| The Nineteenth Amendment prohibits denying the right to vote based on sex. | |
| Are non-citizens subject to immigration law? | Yes, non-citizens are subject to immigration law, and the executive branch has broad authority to determine their entry and stay in the country. |
| Do non-citizens have the right to vote? | Non-citizens do not have the right to vote in federal elections or run for federal elective office, but some states and localities have granted non-citizens the right to vote in local elections. |
| Do non-citizens have freedom of speech? | Yes, non-citizens have freedom of speech, press, assembly, and petition under the First Amendment, but their legal status may affect their ability to exercise these rights fully. |
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What You'll Learn
The right to due process and 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 means that individuals are entitled to fair legal procedures and cannot be arbitrarily deprived of their life, liberty, or property. It is a crucial safeguard in the US legal system, protecting individuals from unjust deprivation of their rights.
The Fourteenth Amendment also guarantees equal protection under the law, stating that the government cannot "deny to any person within its jurisdiction the equal protection of the laws." This amendment ensures that all individuals are treated equally under the law, without discrimination, and that the law is applied fairly and justly to all. This amendment has been interpreted to mean that if citizen children have access to free public education, so should undocumented immigrant children, as per the Supreme Court case Plyler v. Doe.
In the context of immigration, the right to due process has been a central issue in cases such as Reno v. Flores and the Trump administration's "zero-tolerance" policy. While the law guarantees due process rights to immigrants, there have been concerns about the practical implementation of these rights, with some immigrants facing expedited removal processes without access to a court hearing.
Additionally, the Sixth Amendment guarantees the right to legal counsel in criminal cases, as affirmed in the 1963 Gideon v. Wainwright case. However, as most deportation proceedings are civil cases, this right often does not apply in immigration contexts. Nevertheless, the Supreme Court has ruled that if an individual cannot afford an attorney, the government must provide one.
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The right to free speech
The United States Constitution applies to US citizens living abroad, but the extent of its application can vary depending on the specific circumstances and the laws of the foreign country. The Constitution uses the terms "people" or "person" instead of "citizen" in many parts, indicating that certain fundamental rights are afforded to both citizens and non-citizens on US soil.
The First Amendment, which guarantees freedom of speech, is one of the most important protections provided by the Constitution. While it primarily safeguards the rights of US citizens, there have been instances where it has been extended to non-citizens as well. For example, in the case of Harry Bridges, an Australian labour activist, the Supreme Court reversed his deportation based on his statements indicating "affiliation" with the Communist Party, citing that "freedom of speech and of the press is accorded aliens residing in this country."
However, the First Amendment rights of non-citizens are not always protected to the same extent as those of US citizens. In the case of Bluman v. Fed. Election Comm'n, the constitutionality of a law was challenged on First Amendment grounds, but the Supreme Court affirmed that the First Amendment rights of foreign nationals are limited. Additionally, the Trump Administration has sought to restrict the entry of non-citizens who oppose US policies and expel those within the country who participate in disfavored political protests, citing national security interests.
Furthermore, the First Amendment does not limit the actions of foreign governments or protect people from their actions. This means that a US citizen living in a foreign country where freedom of speech is not guaranteed may not have the same level of protection as they would in the US. The extent of protection may also depend on the relationship between the US and the foreign government, as the US government could be implicated if it is seen to be conspiring with or soliciting a foreign government to act in a way that violates the First Amendment.
In conclusion, while the Constitution and the First Amendment do provide protections for US citizens living abroad, these protections are not absolute and are subject to the laws and political climate of the foreign country in question, as well as the specific circumstances of each case.
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The right to freedom of religion
The First Amendment applies to all people in the United States, including citizens, foreign tourists, and non-citizen residents. For example, a tourist from Canada cannot be prevented by the government from attending their preferred religious service. However, there is some legal uncertainty about the scope of the term "the people" in the Constitution, which may include some non-citizens but exclude others, such as unauthorized immigrants.
The Supreme Court has interpreted the First Amendment as applying to the entire federal government, even though it is only expressly applicable to Congress. Additionally, the Court has interpreted the Due Process Clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments. This interpretation ensures that state governments cannot restrict the free exercise of religion for people within their jurisdiction, regardless of their citizenship status.
While the First Amendment protects the right to freedom of religion, it does not provide absolute protection. The government may still regulate and restrict religious practices in certain circumstances, such as when there is a compelling state interest or when the practice in question violates other laws or the rights of others. Additionally, the free exercise of religion does not exempt individuals from complying with neutral laws of general applicability.
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The right to a jury
The US Constitution applies to citizens living in foreign countries in certain contexts. The Constitution uses the terms "people" or "person" rather than "citizen", and these laws apply to everyone on US soil, including non-citizens.
The Constitution protects US citizens abroad, ensuring they receive the same protection of persons and property as native-born citizens. This includes the right to fair and equitable treatment by the US government regarding taxation, citizenship of progeny, veterans' benefits, voting rights, and Social Security benefits. The US government has declared a national emergency in response to the hostage-taking and wrongful detention of its citizens abroad, recognizing the threat these pose to national security, foreign policy, and the economy.
The Supreme Court has held that foreign nationals living in the US are "persons" under the Constitution and are protected by the rights not expressly reserved for citizens. The right to a jury is one of these protections. Cases from the 1800s involving Chinese immigrants established the rights of non-citizens under the Fourth and Fifth Amendments, including the right to a jury. In U.S. v. Wong Kim Ark, the Supreme Court ruled that the term "person" in the Fifth Amendment applied to aliens in the US, guaranteeing them due process rights and the right to a jury.
However, non-citizens do not share all the rights of citizens under the Constitution. They are subject to immigration law, which gives the executive branch broad authority over their entry and stay in the country. The right to a jury for non-citizens is not absolute and may vary depending on the specific circumstances and the country in question.
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The right to vote
The 14th Amendment of the Constitution plays a crucial role in defining voting rights. According to this amendment, men who are U.S. citizens and above the age of 21 are guaranteed the right to vote, unless they have committed a crime. This amendment sets a foundational framework for voting eligibility in the country.
Additionally, the 15th and 19th Amendments further expand on voting rights. The 15th Amendment prohibits the denial of the right to vote based on race, ensuring that voting is inclusive regardless of skin colour. Meanwhile, the 19th Amendment explicitly prohibits denying the right to vote based on sex, guaranteeing women's suffrage.
Citizens living abroad retain their right to vote and are encouraged to exercise it. Military personnel, aid workers, and Americans residing in other countries are provided with a secure system to cast their votes. This ensures their representation in democratic processes even while they are overseas.
However, it is important to note that voting rights are typically restricted to federal elections. Non-citizens, including permanent legal residents, are generally not permitted to vote in federal, state, and most local elections. This exclusion also applies to U.S. citizens residing in U.S. territories, who cannot vote for the president in the general election.
Nevertheless, there are exceptions to these restrictions. Certain municipalities, such as Takoma Park in Maryland, have restored non-citizen voting rights in local elections. Similarly, San Francisco passed Proposition N in 2016, allowing non-citizens who are parents or legal guardians of children in the San Francisco Unified School District to vote in school board elections. These exceptions highlight the evolving nature of voting rights and the efforts to include non-citizens in local democratic processes.
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Frequently asked questions
The US Constitution does not expressly state whether it applies to citizens living in foreign countries. However, in Boumediene v. Bush (2008), the Supreme Court held that the right of habeas corpus to challenge illegal detentions extends to non-citizens on foreign territory.
The US Constitution uses the terms "people" or "person" in many parts, and the Supreme Court has ruled that these terms apply to non-citizens within the US. As a result, non-citizens have certain constitutional rights, such as freedom of religion, speech, and the right to due process and equal protection under the law.
The Constitution does not prohibit anyone from voting but spells out who cannot be denied the right. While non-citizens cannot vote in federal elections, some states and cities have allowed non-citizens to vote in local elections.
