Malcolm Rivera
The US Constitution applies to non-citizens in different ways depending on their circumstances. While non-citizens do not have the same rights as citizens, such as the right to vote, many parts of the Constitution use the term 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 non-citizens alike. The Supreme Court has also extended Fourth Amendment protections against unreasonable searches and seizures to undocumented immigrants. However, there is a border search exception, which allows the government to conduct warrantless searches within a 100-mile radius of any US border. The Supreme Court has also held that if citizen children have the right to attend public schools, then undocumented children also have this right. In addition, the Supreme Court has not ruled definitively on whether the First Amendment applies to non-citizens, and there is legal uncertainty about who is included and excluded from the people.
| Characteristics | Values |
|---|---|
| Right to due process | Extended to non-citizens in the US by the Supreme Court |
| Right to equal protection under the law | Extended to non-citizens in the US by the Supreme Court |
| Right to freedom of religion | Extended to non-citizens in the US by the Supreme Court |
| Right to freedom of speech | Extended to non-citizens in the US by the Supreme Court |
| Right to freedom of the press | Extended to non-citizens in the US by the Supreme Court |
| Right to freedom of assembly | Extended to non-citizens in the US by the Supreme Court |
| Right to petition | Extended to non-citizens in the US by the Supreme Court |
| Right to education | Extended to non-citizen children by the Supreme Court |
| Right to bear arms | Legal uncertainty, Supreme Court has not ruled definitively |
| Right to vote | Does not apply to non-citizens |
| Right to run for office | Does not apply to non-citizens |
| Right to serve on a jury | Does not apply to non-citizens |
| Right to consular assistance | Only available to non-citizens |
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What You'll Learn
The right to due process
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 applies to citizens and non-citizens alike, as the term "person" has been interpreted to include aliens living in the U.S.
While the right to due process is guaranteed, the specific procedures and protections may vary depending on the situation. For example, Congress can establish limited procedures that satisfy due process requirements for non-citizens detained at the border. Additionally, the border search exception allows searches at the border, including airports and other ports of entry, without being considered unreasonable solely due to their location.
In conclusion, the right to due process, as guaranteed by the U.S. Constitution, applies to both citizens and non-citizens. It ensures fair treatment and legal hearings when an individual's life, liberty, or property is at risk. However, the practical implementation of this right can be complex and may depend on the specific circumstances of each case.
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The right to equal protection under the law
The Fourteenth Amendment has been interpreted to mean that the right to equal protection applies to both citizens and non-citizens. In the case of Plyler v. Doe, the Supreme Court ruled that undocumented immigrant children should have access to a free, public education, just as children who are citizens do. This decision was based on the Fourteenth Amendment's guarantee of equal protection under the law.
In other cases, the Supreme Court has ruled that non-citizens have the right to due process and equal protection under the Fifth Amendment. In U.S. v. Wong Kim Ark, the Court decided that the term "person" in the Fifth Amendment applied to aliens living in the U.S. Similarly, in Fong Yue Ting v. U.S., the Court held that Chinese laborers were entitled to protection under the laws, just like all other aliens residing in the country.
However, there are some rights that are specifically reserved for citizens, such as the right to vote and the right to hold public office. Additionally, the Supreme Court has acknowledged that there is a permissible state interest in distinguishing between citizens and non-citizens in certain contexts, such as restricting access to public employment or certain resources.
While non-citizens generally have the same set of rights as citizens when they are within the United States, there are some exceptions and complexities, particularly when it comes to immigration law. The "border search exception," for example, allows searches at the border or within a 100-mile "extended border" zone, which courts have long upheld as reasonable due to their location.
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The right to freedom of speech
The Supreme Court has not ruled definitively on whether the First Amendment's protection of free speech applies to non-citizens. The Court's Citizens United ruling suggests that protections apply to those with a “sufficient connection” to the US, rather than being restricted by identity. This implies that non-citizens with a substantial link to the country may be included.
In Bridges v. Wixon (1945), Justice Francis W. Murphy stated that the "Bill of Rights is a futile authority for the alien seeking admission for the first time." However, he added that once an alien lawfully enters and resides in the US, they are "invested with the rights guaranteed by the Constitution to all people within our borders." This includes the right to freedom of speech.
In practice, the application of free speech rights to non-citizens is complex. While some argue that unauthorized immigrants are excluded from First Amendment protections, others contend that the broad use of "the people" in the Constitution includes noncitizens physically present in the US. Supreme Court Justice Antonin Scalia addressed this tension in Reno v. American Arab Anti-Discrimination Committee, stating that "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against deportation."
The Supreme Court has also characterized the right to freedom of speech as encompassing the liberty to discuss publicly and truthfully all matters of public concern without fear of subsequent punishment. This indicates that the Court recognizes the importance of free speech for individuals within the US, regardless of citizenship status, when it comes to matters of public interest and the functioning of a free government.
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The right to freedom of religion
The Supreme Court has recognized that the government may not establish a religion or prohibit its free exercise. The Establishment Clause prohibits the government from passing legislation to establish an official religion or favouring one religion over another, thus enforcing the "separation of church and state." The Free Exercise Clause, on the other hand, protects citizens' right to practice their religion as they wish, as long as it does not conflict with "public morals" or a "compelling" government interest.
However, when it comes to non-citizens, the Supreme Court has not provided a clear ruling. In the case of Reno v. American Arab Anti-Discrimination Committee, Justice Antonin Scalia stated that "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defence against his deportation." This suggests that unauthorized immigrants may not have the same constitutional protections as citizens, including the right to freedom of religion.
On the other hand, legal scholar and constitutional law professor Michael Kagen has argued that the First Amendment protects the rights of marginalized people, regardless of their citizenship status. Additionally, in Bridges v. Wixon (1945), the Court reversed the deportation of a non-citizen due to their political statements, indicating that freedom of speech and press are accorded to aliens residing in the country.
In conclusion, while the First Amendment guarantees freedom of religion, the extent to which this right applies to non-citizens remains uncertain. The Supreme Court has not provided a definitive ruling, and legal scholars and judges continue to debate the matter. The interpretation of "the people" in the First Amendment remains open to interpretation, leaving room for legal uncertainty regarding the inclusion and exclusion of certain groups, especially unauthorized immigrants.
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The right to education
The US Constitution is the document containing the fundamental laws governing the United States of America. While it is considered the "supreme law of the land", it does not explicitly mention the "right to education". However, two sections of the Constitution come into play when considering whether undocumented migrant children should have access to education.
In the case of Plyler v. Doe, the US Supreme Court ruled that if children who are citizens or legal residents have the right to attend public schools, undocumented children should also have this right. This is based on the Equal Protection Clause of the Fourteenth Amendment, which prohibits government discrimination based on race, ethnicity, or national origin. The Court's reasoning was that any resources saved by excluding undocumented children from public schools were outweighed by the societal harms imposed by denying them an education.
The Fourteenth Amendment states that "No State shall... deny to any person within its jurisdiction the equal protection of the law." This means that if states provide free public education to US citizens and lawfully present foreign-born children, they cannot deny it to undocumented children. This decision ensures that undocumented children cannot be prohibited from enrolling in a public school.
Furthermore, the Fifth Amendment guarantees due process and equal protection under the law, applying to everyone within US borders, regardless of citizenship status. The Sixth Amendment also grants the right to legal counsel in criminal cases, and the Fourth Amendment protects against unreasonable searches and seizures, extending these rights to undocumented immigrants within the US.
While there is no federal law guaranteeing the right to education, the Supreme Court has interpreted the Constitution to extend certain protections to non-citizens, including the right to education for undocumented children under the Fourteenth Amendment.
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Frequently asked questions
The US Constitution applies to non-citizens to varying degrees. While the Supreme Court has not ruled definitively on the question, many parts of the Constitution use the term "people" or "person" rather than "citizen". As a result, 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.
Non-citizens have certain protections under the US Constitution, including the right to due process and equal protection under the law. The Fourth Amendment guarantees the right of everyone in the US against unreasonable searches and seizures by the government. The Fifth Amendment also applies to non-citizens, as demonstrated in the 1898 case of U.S. v. Wong Kim Ark. The Fourteenth Amendment's Due Process Clause requires all state governments to provide equal protection under the law to all persons, regardless of immigration status.
The First Amendment itself does not specify whether it applies to citizens or a broader category of people. The Supreme Court has not ruled definitively on this question. However, in Bridges v. Wixon (1945), the Court reversed the deportation of a non-citizen due to his freedom of speech and press.
The right to vote is generally reserved for citizens. 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. However, some jurisdictions, such as San Francisco and Maryland, are giving noncitizens the right to vote in local elections.
