Jonah Patel
The US Constitution does not specify whether noncitizens are protected by the First Amendment. The Constitution uses the terms the people, person, and resident instead of citizen. Legal scholars and judges disagree on the interpretation of these terms. Some argue that the First Amendment applies to everyone physically on US soil, while others argue that it only applies to those with legal status in the country. The Supreme Court has not ruled definitively on this question, but it has suggested that the extent of protection may depend on an individual's legal status and connection to the country. While noncitizens do not share all the rights of citizens, they are entitled to certain constitutional protections, such as due process and equal protection under the law.
| Characteristics | Values |
|---|---|
| First Amendment rights | The First Amendment does not specify whether it applies only to citizens. The Supreme Court has not ruled directly on this issue. However, the First Amendment has been interpreted to protect the rights of marginalized people, including non-citizens, to freedom of speech and religion, assembly, and freedom from unlawful government interference. |
| Right to vote | The Constitution does not explicitly prohibit anyone from voting. The 14th, 15th, and 19th Amendments expanded voting rights to specific groups of citizens. Congress has also passed laws barring non-citizens from voting. |
| Right to education | There is no explicit "right to education" in the Constitution. However, the Supreme Court has ruled that if citizen children have access to free public education, so should undocumented immigrant children, as per the 14th Amendment's guarantee of equal protection under the law. |
| Due process | The Fifth and Fourteenth Amendments protect everyone within the United States' jurisdiction, including non-citizens, from deprivation of life, liberty, or property without due process of law. This includes the right to a fair hearing in deportation cases. |
| Search and seizure | The "border search exception" allows searches at borders, airports, and other ports of entry, which courts have upheld as reasonable. However, the Fourth Amendment protects against unreasonable searches and seizures for citizens and non-citizens alike. |
| Free speech | The First Amendment protects freedom of speech for citizens and non-citizens alike. However, non-citizens can be deported for associating with or supporting groups deemed terrorist organizations by the U.S. government. |
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What You'll Learn
Non-citizens and the First Amendment
The First Amendment of the U.S. Constitution guarantees the freedoms of religion, speech, press, assembly, and petition. However, it does not specify whether these rights apply exclusively to citizens or if they extend to non-citizens as well. This ambiguity has led to ongoing debates and legal interpretations regarding the First Amendment rights of non-citizens in the United States.
The Constitution's use of the terms "the people" or "person" instead of "citizen" in various parts, including the First Amendment, leaves room for interpretation. Some legal scholars argue that the First Amendment's protections should be inclusive of non-citizens, especially those who are lawfully present in the country or have developed substantial ties to it. They contend that the First Amendment safeguards the rights of marginalized individuals to express themselves and prevents the government from favoring certain speakers over others based on their identity.
On the other hand, the Supreme Court has suggested that the extent of First Amendment protections for non-citizens may vary depending on their legal status, ties to the country, and the specific context. For instance, in the case of Reno v. American Arab Anti-Discrimination Committee, the Court addressed claims of First Amendment violations by legal U.S. residents who were members of a U.S.-based Palestinian liberation group targeted for deportation due to their political views. Justice Antonin Scalia's majority opinion asserted that "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation."
Additionally, federal law prohibits non-citizens who are not permanent residents from making campaign contributions or participating in political spending decisions. This distinction underscores the differential treatment of non-citizens in certain political contexts. Nevertheless, the Supreme Court has also extended constitutional protections to all aliens within the United States, regardless of their legal status, in cases pertaining to due process and equal protection under the Fifth and Fourteenth Amendments.
The question of non-citizen rights under the First Amendment remains complex and subject to ongoing legal interpretation. While non-citizens may enjoy certain First Amendment protections, the specific circumstances and their legal status play a significant role in determining the extent of those rights.
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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 amendment guarantees due process rights to all individuals, regardless of their immigration or legal status. The Fourteenth Amendment further bolsters these protections, stating that the government cannot "deny to any person within its jurisdiction the equal protection of the laws."
The Supreme Court has clarified that even those who are in the country unlawfully or involuntarily are entitled to due process protections. This was affirmed in the 1903 Japanese Immigrant Case, where the Court determined that an alien who had entered the country and become subject to its jurisdiction could not be deported without an opportunity to be heard.
However, the extent of due process protection may vary depending on an individual's status and circumstances. The Supreme Court has suggested that the protections afforded to an alien may depend on whether they have been admitted into the US or have developed substantial ties to the country. For example, in the case of Landon v. Plasencia, the Court recognized that an alien's constitutional status changes as they develop ties that go with permanent residence.
Despite these established rights and protections, recent policies and actions by the Trump administration have threatened the right to due process for non-citizens. These policies include expedited removals, limiting access to legal representation, and bypassing immigration courts. The administration's "zero-tolerance" immigration policy and practice of family separations at the border have raised concerns about the legal rights of immigrants and their access to due process.
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The right to education
The US Constitution does not explicitly mention a "right to education". However, in the case of Plyler v. Doe, the Supreme Court ruled that if citizen children have access to free public education, so should undocumented immigrant children. This is based on the 14th Amendment, which states that the government cannot "deny to any person within its jurisdiction the equal protection of the laws". This means that undocumented children cannot be prohibited from enrolling in a public school.
The Supreme Court has also extended constitutional protections to all aliens within the United States, including those who entered unlawfully. This includes the right to due process and equal protection under the law, as guaranteed by the Fifth and Fourteenth Amendments. The Court has reasoned that aliens physically present in the US, regardless of their legal status, are recognised as persons guaranteed certain rights by the Constitution.
However, the extent of due process protection may vary depending on the person's status and circumstances. The Court has suggested that the constitutional protections to which an alien is entitled may depend on whether they have been admitted to the US or have developed substantial ties to the country. For example, in the case of Reno v. American Arab Anti-Discrimination Committee, the government sought to deport members of a US-based Palestinian liberation group who were legal residents but not citizens. While the Supreme Court did not rule on the First Amendment issue, 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".
In addition, while the Fourth Amendment establishes the right against unreasonable searches and seizures, there is a "border search exception" that allows searches at the border or ports of entry. This exception has been interpreted broadly, with the Justice Department establishing a 100-mile-wide "extended border" where Border Patrol agents can conduct searches.
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The right to vote
The 15th Amendment, for instance, granted African American men the right to vote in 1870, though many were unable to exercise this right due to literacy tests and other barriers implemented by certain states. The 19th Amendment, ratified in 1920, extended the right to vote to women, and the 24th Amendment, ratified in 1964, eliminated poll taxes, which had been used to prevent African Americans from voting in federal elections. The 26th Amendment, ratified in 1971, lowered the voting age to 18 for all elections.
However, the right to vote for noncitizens is a separate matter with a less clear-cut trajectory. While the US Constitution does not explicitly address the voting rights of noncitizens, it is important to note that the 14th Amendment's Equal Protection Clause has been interpreted to allow states to require a duration of residency as a qualification for voting. This was affirmed in the landmark case Harper v. Virginia State Board of Elections (1966), which held that restricting voting to citizens who had paid a poll tax was unconstitutional under the 14th Amendment.
Currently, it is illegal for noncitizens to vote in federal or state elections in the US. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which criminalized noncitizen voting in federal elections and imposed penalties, including potential deportation. However, this law did not explicitly prohibit noncitizens from voting in state or local elections, and the decision was left to individual states.
As of 2025, no state allows noncitizens to vote in federal or statewide elections. However, at least 16 jurisdictions permit noncitizen voting in certain local elections, such as for school boards, city councils, or mayoral races. These decisions are often made at the municipal level, where local jurisdictions have the power of home rule and are not impeded by explicit state constitutional restrictions.
The debate surrounding noncitizen voting rights continues, with arguments both for and against their inclusion in the electoral process. Some argue that allowing noncitizens to vote promotes policies that benefit marginalized communities and encourages naturalization. Others oppose this idea, citing concerns about foreign influence in American elections and the belief that voting should be a duty reserved for citizens.
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The right to free speech
The US Constitution and its amendments, such as the First Amendment, use the terms "people" or "person" instead of "citizen". This leaves room for interpretation as to whether the First Amendment applies only to citizens or a broader category of people, including noncitizens. The Supreme Court has not ruled directly on this matter, and legal scholars and federal judges are divided on the issue.
The First Amendment grants people the freedom of speech, press, assembly, and petition. The question of whether noncitizens are protected by the First Amendment has been raised in several court cases and remains unresolved. In the 2015 Department of Justice federal class-action lawsuit, it was argued that unauthorized immigrants do not have First Amendment protections. The DOJ maintained that only immigrants who enter the country legally and have "sufficient connections" to the US are entitled to these protections. However, others have argued that the Supreme Court's Citizens United ruling, which opposed restrictions on political donations based on identity, supports the idea that the First Amendment covers noncitizens.
Legal scholar and constitutional law professor Michael Kagen supports this view, stating that the First Amendment "protects the rights of marginalized people to have a voice and does not allow the government to prefer some speakers over others based on their identity." This interpretation is significant in ensuring that noncitizens, regardless of their legal status, have the right to free speech and can participate in political discourse without fear of deportation or legal repercussions.
In practice, the application of free speech rights for noncitizens can be complex. For example, the USA Patriot Act of 2001 allows for the deportation of noncitizens who associate with or support groups deemed terrorist organizations by the US government. Additionally, the "border search exception" allows searches at borders, airports, and other ports of entry, which can impact the free movement and speech of noncitizens. Nevertheless, court cases such as Plyler v. Doe have affirmed the rights of undocumented children to access public education, demonstrating that noncitizens are afforded certain constitutional protections.
While the US Constitution does not explicitly mention noncitizens, the use of the term "people" suggests that the Founding Fathers intended for the First Amendment to apply broadly. This interpretation has been supported by Supreme Court justices such as William O. Douglas, who stated that "freedom of speech and of the press is accorded aliens residing in this country." Therefore, it can be argued that noncitizens are indeed covered by the First Amendment's right to free speech, even if the specific applications of this right may vary depending on an individual's legal status and circumstances.
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Frequently asked questions
The US Constitution does not explicitly mention noncitizens, but it does use the terms "people" or "person" in many parts, which has been interpreted to include noncitizens. The Constitution also provides certain rights and protections, such as freedom of speech and religion, due process, and equal protection under the law, that apply to everyone within US borders, regardless of citizenship.
Noncitizens are afforded certain rights and protections under the US Constitution, including freedom of speech and religion, the right to due process, and equal protection under the law. The Fifth Amendment, for example, guarantees due process rights to "any person," including noncitizens.
The right to vote under the US Constitution is specifically afforded to citizens. The 14th Amendment states that male citizens over the age of 21 have the right to vote, and the 15th and 19th Amendments prohibit denying the right to vote based on race or sex, respectively. However, noncitizens may be granted the right to vote in local elections in certain jurisdictions, such as San Francisco and Maryland.
Noncitizens, including those with legal residency, can be subject to deportation under US immigration law. However, they are entitled to certain protections during this process, including the right to a hearing before an immigration judge, to be represented by an attorney, and to receive interpretation services if necessary. The Supreme Court has also established that deportation must be preceded by an opportunity to be heard and a fair hearing.
The interpretation of the First Amendment's application to noncitizens has evolved over time and remains a complex issue. While the First Amendment itself does not specify whether it applies only to citizens, Supreme Court decisions have suggested that noncitizens are entitled to lesser protections, particularly when seeking entry into the US. However, once lawfully present in the country, noncitizens gain additional rights and protections under the Constitution.
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