Eleanor Finch
The US Constitution applies to non-citizens in different ways depending on their legal status. The Constitution does not specify whether the First Amendment applies only to citizens, but legal scholars disagree on whether it applies to unauthorized immigrants. The Fifth Amendment guarantees due process rights to no person, and the Supreme Court has recognized that noncitizens have certain basic rights. However, the right to vote is reserved for citizens, and non-citizens may not have the same security in political expression as citizens. While non-citizens have many of the same rights as citizens, there are exceptions, such as the border search exception, which allows searches at the border without requiring probable cause.
| Characteristics | Values |
|---|---|
| Right to due process | Extends to non-citizens, as per the Fifth Amendment |
| Right to equal protection under the law | Extends to non-citizens, as per the Fourteenth Amendment |
| Freedom of religion | Extends to non-citizens, as per the First Amendment |
| Freedom of speech | Extends to non-citizens, as per the First Amendment |
| Right to a jury | Extends to non-citizens, as per the Sixth Amendment |
| Right to vote | Does not extend to non-citizens, except in some local elections |
| Right to welfare | Does not extend to non-citizens |
| Right to run for office | Does not extend to non-citizens |
| Right to education | Does not extend to non-citizens, but undocumented children cannot be prohibited from enrolling in public school |
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What You'll Learn
Non-citizens' rights to due process
The US Constitution guarantees due process rights to all individuals, including non-citizens, regardless of their immigration or legal status. This means that non-citizens facing deportation have a right to due process, which includes a hearing before a judge, access to legal representation, and the opportunity to defend their rights in court.
The Fifth Amendment of the US Constitution 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 use of the word "person" rather than "citizen" is significant, as it indicates that these rights apply to everyone within US jurisdiction, regardless of citizenship.
The right to due process for non-citizens has been reaffirmed in several Supreme Court cases. For example, in Reno v. Flores (1993), the Supreme Court ruled that the government must release children to their parents, a relative, or a licensed program within 20 days in the context of family separations. In another case, Boumediene v. Bush (2008), the Court held that the basic right of habeas corpus to challenge illegal detentions extends even to non-citizens on foreign territory.
However, despite these protections, non-citizens often face challenges in accessing their right to due process due to policies that expedite deportations and limit access to legal representation. For example, the Trump administration's "zero-tolerance" immigration policy and rapid expulsion of non-citizens, including asylum seekers, have raised concerns about the erosion of constitutional protections in immigration enforcement.
Furthermore, the invocation of the 1798 Alien Enemies Act by the Trump administration to deport alleged members of the Venezuelan gang Tren de Aragua has been criticized for bypassing standard legal processes and denying individuals the opportunity to contest their deportations.
While the right to due process for non-citizens is constitutionally guaranteed, ensuring its practical implementation and access remains an ongoing challenge.
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The First Amendment and non-citizens
The First Amendment to the US Constitution states, "Congress shall make no law", indicating that it is telling the government what it cannot do, rather than addressing citizens or corporations. However, the Supreme Court has not ruled definitively on whether the First Amendment applies to non-citizens.
The First Amendment does not limit the actions of foreign governments, as long as the federal, state, or local government is not conspiring with them. The First Amendment rights of aliens, even once lawfully established in the country, are not equivalent to those of citizens in matters of campaign finance. Federal law prevents aliens who are not “permanent resident aliens” (green card holders) from making campaign contributions or expenditures and from participating in political spending decisions.
Supreme Court precedents hold that aliens are entitled to lesser First Amendment protections while seeking to enter the United States, because an alien has no right to enter the country. In matters involving alien exclusion and naturalization, Congress has historically been permitted broad regulatory powers, so the government has been able to use the political viewpoints of aliens against them where content-based distinctions against citizens would be impermissible.
In 2015, the Department of Justice argued in a federal class-action lawsuit that unauthorized immigrants do not have First Amendment protections. However, legal scholars and federal judges have argued the opposite, citing the Supreme Court's Citizens United ruling that opposed restrictions on political donations based on identity rather than content. The First Amendment protects the right to speak, protest, and publish views, regardless of citizenship status.
In conclusion, while the First Amendment does provide some protections for non-citizens, their rights are not equivalent to those of US citizens, and the Supreme Court has not provided a definitive ruling on this matter.
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Non-citizens' right to freedom of speech
The US Constitution and its amendments are often referred to in relation to "the people" rather than "citizens". This means that, in theory, the First Amendment's protection of freedom of speech applies to anyone within the United States.
However, the Supreme Court has not yet made a definitive ruling on the matter. In the past, the Court has ruled that denying a US visa to a non-citizen did not violate their freedom of speech. In another case, the Court held that non-citizens unlawfully in the US cannot use freedom of speech as a defence against deportation.
Legal scholars have argued that the First Amendment does protect the freedom of speech of non-citizens, particularly those with legal visas. Columbia University's Knight First Amendment Institute, for example, has called Trump's deportation of students making pro-Palestine speeches illegal and unconstitutional.
The American Civil Liberties Union (ACLU) has also argued that non-citizens with the required papers have the right to due process and entry. They also argue that refugees without papers have the right to have their cases considered before being returned to the countries they are fleeing.
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Non-citizens' right to equal protection under the law
The US Constitution uses the terms "people" or "person" in many places instead of "citizen". Legal experts have interpreted this to mean that the rights outlined in the Constitution apply to everyone on US soil, regardless of citizenship status.
The Fifth Amendment, for instance, 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 Supreme Court has long recognized that noncitizens have certain basic rights, including the right to due process. This right was at the heart of Reno v. Flores, a 1993 Supreme Court case that required the government to release children to their parents, a relative, or a licensed program within 20 days.
The Fourteenth Amendment also guarantees equal protection under the law, stating that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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 Fourteenth Amendment has been used to argue for the right to education for undocumented migrant children, citing that if children who are citizens have access to free public education, so should undocumented immigrant children.
The right to due process has also been extended to refugees with no papers, who are entitled to have their cases considered before being returned to the countries they are fleeing. In addition, the Supreme Court has ruled that the right of habeas corpus to challenge illegal detentions extends to non-citizens on foreign territory.
However, there are some limitations to the rights extended to noncitizens. For example, the "border search exception" allows searches at the border, including airports and other ports of entry, without being considered "unreasonable" due to their location. Additionally, while noncitizens have the right to due process, this right does not extend to immigration law. Furthermore, while the Fourteenth Amendment's equal protection clause applies to "any person", the privileges and immunities clause only applies to US citizens.
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Non-citizens' right to vote
The US Constitution does not explicitly prohibit anyone from voting. Instead, it outlines who cannot be denied the right to vote. The 14th Amendment grants voting rights to men who are US citizens and over the age of 21, unless they have committed a crime. The 15th Amendment prohibits denying the right to vote based on race, and the 19th Amendment prohibits denying this right based on gender.
While the Constitution does not explicitly address the voting rights of non-citizens, it is important to note that the term "people" or "person" is used in many parts of the Constitution, rather than "citizen." This interpretation has been used to argue that certain rights, such as freedom of religion, speech, and due process, apply to everyone on US soil, regardless of citizenship.
Historically, non-citizens in the US have been allowed to vote in some local elections. For example, in 1989, non-citizens in Chicago were permitted to vote for the school board. Similarly, from 1969 until 2003, non-citizens in New York City also had the right to vote in school board elections. Currently, some jurisdictions, such as San Francisco, Maryland, and Takoma Park, permit non-citizens to vote in specific local elections like school board or city council elections. However, it is important to note that these rights are not universal, and each state and municipality has its own laws regarding non-citizen voting rights.
While non-citizen voting in federal and statewide elections is not permitted in any state, there have been rare instances of non-citizens registering to vote or mistakenly being registered to vote. However, voter fraud by non-citizens is considered "exceedingly rare." States regularly conduct audits to remove ineligible voters, and individuals are required to affirm their citizenship under penalty of perjury when registering to vote in federal elections.
The right to vote for non-citizens in the US is a complex issue that varies depending on the state and local laws. While some jurisdictions have granted limited voting rights to non-citizens, it is not a widespread practice, and the majority of voting rights are still reserved for US citizens.
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Frequently asked questions
The US Constitution applies to non-citizens in some ways but not in others. While the Constitution does not give anyone the right to enter the US, it does grant certain rights to those who are physically on US soil, regardless of citizenship. This includes basic rights such as freedom of religion and speech, the right to due process, and equal protection under the law.
The US Constitution grants non-citizens the right to due process, equal protection under the law, and freedom of religion and speech. The Fifth Amendment, for example, 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 Supreme Court has also ruled that the term "person" in the Fifth Amendment applies to non-citizens living in the US.
No, voting is a right specifically reserved for citizens. However, there have been exceptions to this rule in some local elections. 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.
There is no explicit "right to education" in the US Constitution. However, the Supreme Court has ruled that if citizen children have access to free public education, so should undocumented immigrant children, as the 14th Amendment states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws."
Yes, non-citizens can be deported from the US, but they have the right to due process during deportation proceedings. The US Constitution's Fifth Amendment guarantees due process to "all persons," regardless of citizenship status. However, the US government has sometimes attempted to deport non-citizens without due process, such as in the case of alleged members of the Venezuelan gang Tren de Aragua.
