Alien Rights: Us Constitution's Universal Application

The US Constitution applies to aliens in different ways depending on their legal status and the circumstances. While the Constitution uses the terms people or person in many parts rather than citizen, the interpretation and application of these laws can be complex. For example, the Fifth Amendment guarantees due process rights to persons, and the Supreme Court has ruled that this includes aliens, even those unlawfully present, who cannot be deported without notice and a hearing. Aliens also have free speech rights, as seen in Bridges v. Wixon, where the Supreme Court reversed the deportation of an alien due to his statements indicating affiliation with the Communist Party. However, in practice, courts may not always uphold these rights, and there are exceptions like the border search exception, where searches at the border are not considered unreasonable. The First Amendment also treats aliens differently, according lesser protections while seeking entry, and states can pass regulations regarding aliens as long as they don't conflict with federal laws.

Explore related products

Constitution of the State of New York, 1821: Enriched edition. A Historical Legal Document of New York's Governance in 1821

$1.99 $11.95

Making Human Rights a Reality

$18.69 $36.99

The Citizen and the Alien: Dilemmas of Contemporary Membership

$31.86 $37

Strangers to the Constitution: Immigrants, Borders, and Fundamental Law

$62.5

Constitutional Rights and Powers of the People (Princeton Legacy Library)

$124.48 $153

Liberalism and Democracy (Radical Thinkers)

$14.95

Aliens and the First Amendment

The First Amendment rights of aliens or non-citizens in the United States are not always equivalent to those of citizens. The First Amendment states, "Congress shall make no law..." and is intended to restrict the government from infringing on the freedoms of religion, speech, press, assembly, and petition.

The Supreme Court has not definitively ruled on whether the First Amendment applies to non-citizens, and there is room for interpretation. The text refers to "the people," which may refer to a narrow group of citizens or a broader category, including visitors, students, and workers. Supreme Court precedents have held that aliens seeking entry into the US are entitled to lesser First Amendment protections, as they have no right to enter the country.

In matters of campaign finance, federal law prevents non-permanent resident aliens from making campaign contributions or expenditures. Additionally, resident aliens may lack the same security in political expression as citizens, and their political viewpoints can be used to support their deportation. For example, in Harisiades v. Shaughnessy (1952), the US allowed the deportation of a legal resident alien who was a member of the Communist Party. However, in another case, the Supreme Court reversed the deportation of labor activist Harry Bridges, an Australian, citing his freedom of speech and press.

The First Amendment rights of non-citizens can depend on their legal status in the country. For instance, tourists from Canada or musicians from India can freely practice their religion and exercise their right to free speech without government interference. Similarly, a student from Kenya studying at an American university can work for the student newspaper and exercise their right to freedom of the press.

Aliens and the Fifth Amendment

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 means that everyone, including aliens, is entitled to due process under the law.

The Supreme Court has recognised that aliens who have physically entered the United States generally come under the protective scope of the Due Process Clause, which applies "to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent". This was affirmed in the 1993 Supreme Court case Reno v. Flores, which returned to the spotlight following the Trump administration's "zero-tolerance" immigration policy and the surge in family separations at the border.

However, the extent of due process protection for aliens "may vary depending upon [their] status and circumstance". For example, the Court has indicated that constitutional protections may depend on whether the alien has been admitted into the United States or has developed substantial ties to the country. In addition, the right to legal counsel often does not apply in deportation proceedings because they are civil rather than criminal cases.

Furthermore, the border search exception allows searches at the border or within 100 miles of it, and these searches are not considered "unreasonable" because of their location. This exception has been used to justify the Trump administration's Alien Enemies Act (AEA) deportations, which have been criticised for their lack of due process and for facilitating the imprisonment of migrants even after deportation.

Aliens and the Fourteenth Amendment

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. It addresses citizenship rights and equal protection under the law at all levels of government. The Fourteenth Amendment was a response to issues affecting freed slaves following the American Civil War. It is considered one of the most consequential amendments and is frequently litigated.

The Fourteenth Amendment holds that all persons born or naturalized in the United States and subject to its jurisdiction are citizens. It prohibits states from making or enforcing any law that abridges the privileges or immunities of US citizens. The amendment also includes an equal protection clause, which states that no state shall deny any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment has been interpreted to mean that aliens, regardless of their legal status, are entitled to due process of law. This means that they cannot be deprived of life, liberty, or property without fair procedures. For example, an alien cannot be deported without notice of the charges and a hearing before an executive or administrative tribunal.

However, the Supreme Court has also suggested that the extent of due process protection may vary depending on the alien's status and circumstances. For instance, in deportation proceedings, aliens who have established connections to the country have been found to have due process rights.

In addition, the Fourteenth Amendment has been used to strike down state statutes that discriminate against aliens. For example, in 1948, the Court held void a statute barring the issuance of commercial fishing licenses to persons "ineligible for citizenship," which effectively targeted Japanese immigrants. The Court has also scrutinized government classifications that adversely impact aliens, particularly in public employment and eligibility for public benefits.

Explore related products

The Embattled Vote in America: From the Founding to the Present

$16 $22

Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (American Encounters/Global Interactions)

$39.95 $39.95

Immigration Questions & Answers

$16.99

Behind the Disappearances: Argentina's Dirty War Against Human Rights and the United Nations (Pennsylvania Studies in Human Rights)

$42.5

We the Peoples: A UN for the Twenty-First Century

$28.99

Independence on trial;: Foreign affairs and the making of the Constitution

$69.95 $49

Aliens and the Sixth Amendment

The Sixth Amendment of the US Constitution guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who and what they are accused of.

The Sixth Amendment states that "In all criminal prosecutions, the accused shall... have the assistance of counsel for his defence". The Supreme Court ruled in the 1963 case of Gideon v. Wainwright that if a person is too poor to hire an attorney, the government must appoint one. However, because most deportation proceedings are civil rather than criminal cases, the right to legal counsel often does not apply.

The US Constitution does not expressly differentiate between citizens and non-citizens, and the Sixth Amendment applies to all persons within US borders. This means that aliens or non-citizens are entitled to the same Sixth Amendment protections as US citizens. Once an alien lawfully enters and resides in the US, they become invested with the rights guaranteed by the Constitution to all people within its borders.

However, there are some exceptions and limitations to the Sixth Amendment rights of aliens. For example, undocumented immigrants who have been in the country for less than two years and are apprehended within 100 miles of the US border may be subject to expedited removal proceedings, which do not always include a hearing before an immigration judge. In these cases, the Sixth Amendment right to legal counsel may not be fully realised.

Furthermore, while the Sixth Amendment guarantees the right to a public trial, this right may be limited for aliens facing national security or terrorism-related charges, as these cases are often heard in closed courts to protect sensitive information.

In conclusion, while aliens or non-citizens are generally entitled to the protections of the Sixth Amendment, there may be practical and legal limitations to these rights based on their immigration status, the nature of the charges, and the specific circumstances of their case.

Aliens and the Second Amendment

The US Constitution and its amendments apply to citizens and non-citizens alike, with the former being afforded more protections. The Fifth Amendment, for instance, protects every person on US soil from being "deprived of life, liberty, or property, without due process of law".

The Second Amendment, however, is a contentious issue when it comes to aliens. The ongoing debate revolves around whether "the people" mentioned in the Second Amendment includes aliens, and if they have the right to keep and bear arms. The Eighth Circuit's 2023 decision in United States v. Sitladeen held that unlawfully present aliens are not encompassed within "the people" protected by the Second Amendment. This decision upheld the constitutionality of 18 U.S.C. § 922(g)(5)(A), which prohibits firearm possession by aliens illegally or temporarily in the country.

This decision highlighted a circuit split, with several circuits, including the Fifth and Eighth Circuits, agreeing that unlawfully present aliens are not included in "the people" and thus not protected by the Second Amendment. In contrast, most other circuits have allowed for some Second Amendment protections for this group. The Supreme Court has not provided a definitive ruling on this matter, leaving the debate unresolved.

The Eighth Circuit's decision in United States v. Sitladeen was influenced by the defendant's violent criminal history and possession of numerous firearms, indicating intent beyond self-defense. The court's affirmation of Sitladeen's conviction followed binding precedent and the "scope of the right" test, suggesting a correct legal decision.

The Second Amendment debate regarding aliens is further complicated by the USA Patriot Act of 2001, which allows for the deportation of aliens associated with or supporting groups deemed terrorist organizations by the US government. This Act restricts the speech and association activities of non-citizens, impacting their First Amendment rights.

Frequently asked questions