Jonah Patel
The US Constitution and its amendments guarantee certain rights to citizens, persons, or the people. While the right to vote is reserved for citizens, the Bill of Rights protects everyone in the US, including undocumented immigrants, to exercise free speech, religion, and assembly, and to be free from unlawful government interference. The 14th Amendment ensures that no particular group is discriminated against unlawfully, and that no state can deprive any person of life, liberty, or property without due process. However, the application of these rights in practice is more complex, and non-citizens may face challenges in areas such as immigration proceedings and the right to bear arms.
| Characteristics | Values |
|---|---|
| Voting rights | Extended to all men over 21 who are U.S. citizens and have not committed a crime |
| Extended to all regardless of skin colour | |
| Extended to all regardless of sex | |
| Not extended to illegal immigrants | |
| Not extended to non-citizens | |
| Right to free speech | Extended to all |
| Right to freedom of religion | Extended to all |
| Right to assembly | Extended to all |
| Right to be free from unlawful government interference | Extended to all |
| Right to due process | Extended to all |
| Right to equal protection under the law | Extended to all |
| Right to a speedy and public trial by jury | Extended to all |
| Right against unlawful searches and seizures | Extended to all |
| Right to an attorney | Extended to all |
| Right to bear arms | Extended to citizens; unclear if extended to non-citizens |
| Right to work | Extended to all over 18 or those with a work permit |
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What You'll Learn
The right to due process
The concept of due process is rooted in the idea of fairness and ensuring that individuals are treated justly by the government. It requires the government to follow fair procedures and uphold certain fundamental rights, even when depriving someone of their life, liberty, or property. Due process protects against arbitrary or unfair government actions and ensures that individuals have a say in decisions that affect their lives.
In the context of immigration, the right to due process has been at the centre of many legal debates and cases. While undocumented immigrants are entitled to due process, there have been concerns about how this right is applied in practice. For example, in some cases, immigrants may face expedited removal without a court hearing, raising questions about whether they are truly receiving due process.
The interpretation of due process has evolved over time, with the Supreme Court playing a significant role in shaping its meaning. The Court has used the Due Process Clause to protect various unenumerated rights, such as the right to privacy and the right to abortion, which are not explicitly mentioned in the Constitution but are inferred from its "penumbras" or shadowy edges." This has been a controversial aspect of the Court's role, with critics arguing that it allows unelected justices to impose their policy preferences on the nation.
Overall, the right to due process is a fundamental guarantee of fairness and justice for all individuals in the US, regardless of their citizenship status. It ensures that the government follows fair procedures and protects certain basic rights, even when depriving someone of their liberties or property.
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The right to free speech
The United States Constitution applies to everyone residing in the country, including non-citizens. While there are certain rights that are reserved only for citizens, such as the right to vote, the right to free speech is extended to everyone within the country.
The First Amendment to the United States Constitution strongly protects the right to freedom of speech and expression from government restrictions. This right allows the free and public expression of opinions without censorship, interference, or restraint by the government. The First Amendment also encompasses the decision of what to say and what not to say.
However, the right to free speech is not absolute and is subject to certain limitations and restrictions. The Supreme Court of the United States has identified several categories of speech that are given lesser protection or no protection at all by the First Amendment. These include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, and commercial speech.
The time, place, and manner restrictions are a legal doctrine enforced under the United States Constitution and the Supreme Court. These restrictions aim to regulate speech while still protecting freedom of speech. They are considered justified when they are neutral in content, serve a significant government interest, and leave open alternative channels of communication.
In addition to government restrictions, there is also a question of whether the First Amendment applies to private actors as well. This includes the debate over whether private landowners can exclude individuals from engaging in free speech on their property. The Supreme Court has yet to provide a definitive ruling on this matter.
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The right to equal protection under the law
The Fourteenth Amendment's Equal Protection Clause requires states to govern impartially and not discriminate against individuals based on irrelevant differences. This clause is crucial in protecting civil rights and ensuring that all individuals are treated fairly and equally under the law. It was originally intended to protect black Americans from discrimination and the lasting effects of historical racial discrimination. However, over time, its interpretation has evolved to encompass a broader scope of protection against discrimination for all individuals.
In practice, the right to equal protection means that individuals who believe their equal rights have been violated by the federal or state government can take legal action. They can bring a lawsuit against the governmental body and seek relief. To succeed in such cases, individuals must first prove that the governing body discriminated against them and caused them actual harm. The courts will then scrutinize the governmental action through strict scrutiny, intermediate scrutiny, or rational basis scrutiny to determine if it was permissible.
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The right to bear arms
The US Constitution applies to everyone residing in the US, including non-citizens. The Constitution uses the terms "people" or "person" rather than "citizen", and these laws apply to everyone on US soil.
The Second Amendment, or "the right to keep and bear arms", is a contentious issue in the US, with strong opinions on both sides of the debate. The Second Amendment 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 Fourteenth Amendment has been used to extend the Second Amendment's rights to individuals against state governments, with the Supreme Court ruling in McDonald v. City of Chicago that the Second Amendment applies to the states through the incorporation doctrine. The Supreme Court has also ruled that the Second Amendment protects the right of all individual citizens to keep and bear arms for self-defence, rather than only being for a state-run militia.
However, there is still debate about the Amendment's intended scope. Some believe that the phrase "the right of the people to keep and bear Arms" creates an individual constitutional right to possess firearms, while others argue that the prefatory language "a well-regulated Militia" indicates that the Framers intended to restrict Congress from legislating away a state's right to self-defence. The Supreme Court has not addressed whether "the people" refers to all people or just citizens, and the collective rights theory asserts that citizens do not have an individual right to possess guns, giving legislative bodies the authority to regulate firearms without implicating a constitutional right.
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The right to vote
The 15th Amendment prohibits restricting the right to vote based on race, while the 19th Amendment, influenced by the earlier Anthony Amendment, prohibits denying the right to vote based on sex. The 19th Amendment was influenced by the efforts of suffragists like Elizabeth Cady Stanton, who, in an 1848 speech, demanded the right for women to vote. The 26th Amendment further extends the right to vote to everyone aged 18 and older, and the 24th Amendment bans poll taxes, which often prevented low-income citizens from voting.
While the U.S. Constitution does not explicitly mention the right to vote, almost all state constitutions do. They provide direct and explicit language granting the right to vote, and some scholars argue that a state-focused approach is necessary to protect this right.
In practice, however, the right to vote is not always guaranteed. Despite the existence of these amendments, there have been instances of systematic discrimination and the denial of voting rights, particularly for racial minorities. The federal government and the Supreme Court currently lack the tools and inclination to protect voting rights, leaving it up to individual states to take action.
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Frequently asked questions
Yes, the US Constitution applies to everyone residing in the US, including non-citizens. The Constitution uses the terms “people" or "person" rather than "citizen", and these laws apply to everyone on US soil.
Non-citizens have almost all the same rights as US citizens, including the right to free speech, religion, assembly, freedom from unlawful search and seizure, and due process. However, there are some exceptions, such as the right to vote, run for office, or serve on a jury, which are reserved only for citizens.
It is debated whether the Second Amendment, which grants the right to bear arms, applies to non-citizens. The Supreme Court has not addressed whether "the people" refers to all people or just citizens. Permanent residents, including long-time residents and former citizens, have the right to buy a gun.
Non-citizens do not have the rights granted by the Privileges and Immunities Clause of Article IV, Section 2, and the Fourteenth Amendment. These clauses state that states cannot discriminate based on residency and that no state shall deprive any person of life, liberty, or property without due process.
