Omar Bennett
The Fourteenth Amendment to the US Constitution, ratified in 1868, has been interpreted as providing key rights for immigrants and their families. These include birthright citizenship, equal protection, and due process. The Supreme Court has interpreted the Fourteenth Amendment to extend birthright citizenship to all persons born in the United States, regardless of their parents' immigration status. The Amendment also protects against discrimination based on race, class, and gender for legal residents. The Fifth Amendment further guarantees due process rights to all persons within the United States, including undocumented immigrants. The Sixth Amendment guarantees the right to legal counsel in criminal cases, and the Supreme Court has ruled that this right applies to deportation proceedings as well. The US Constitution empowers Congress to pass federal immigration laws, but these laws must align with constitutional principles, particularly those in the Bill of Rights and the Fourteenth Amendment.
| Characteristics | Values |
|---|---|
| Immigration laws | Congress has the power to make laws regarding immigration |
| Immigration power | The Supreme Court has assigned the power to regulate immigration to Congress, with executive authority derived from congressional delegations of authority |
| Immigration and citizenship laws | The US Constitution empowers Congress to legislate federal immigration and citizenship laws |
| Citizenship | The Fourteenth Amendment provides a broad definition of citizenship, asserting that all individuals born or naturalized in the US are citizens, regardless of their parents' status |
| Birthright citizenship | The Fourteenth Amendment provides birthright citizenship, which has been interpreted by the Supreme Court to extend to all persons born in the US |
| Equal protection | The Fourteenth Amendment provides for equal protection under the law, prohibiting discrimination based on race, class, and gender |
| Due process | The Fifth and Fourteenth Amendments guarantee due process of law for all persons within US jurisdiction, including immigrants |
| Right to education | The Fourteenth Amendment has been interpreted to provide a right to education for undocumented immigrant children if citizen children have access to free public education |
| Right to legal counsel | The Sixth Amendment provides a right to legal counsel in criminal cases, but deportation proceedings are often civil cases where this right does not apply |
| Voting rights | The Fourteenth Amendment grants voting rights to male US citizens over the age of 21, and the Fifteenth and Nineteenth Amendments prohibit denying the right to vote based on skin color or sex |
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What You'll Learn
Birthright citizenship
The Fourteenth Amendment, ratified in 1868, guarantees birthright citizenship in the United States. The Amendment states that "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." This was further clarified by the 1898 Supreme Court case United States v. Wong Kim Ark, which confirmed that children born in the U.S. to immigrant parents are citizens, regardless of their parents' immigration status. This interpretation of the Fourteenth Amendment has shaped the United States by extending birthright citizenship to all persons born in the country, providing equal protection and due process under the law.
In 2025, President Donald Trump issued Executive Order 14156, aiming to end birthright citizenship for babies of undocumented immigrants and individuals with temporary status in the U.S. This executive order outlined that U.S. citizenship would not be extended to persons born in the country if their mother was unlawfully present or if their mother's presence was lawful but temporary, and their father was not a U.S. citizen or lawful permanent resident at the time of birth. This executive order sparked legal debates, with the Ninth Circuit ruling it unconstitutional and blocking its enforcement.
Despite these challenges, the principle of birthright citizenship remains significant in the United States. The Supreme Court has maintained that once an individual is lawfully present in the country, they are invested with the rights guaranteed by the Constitution, including birthright citizenship. This interpretation of the Fourteenth Amendment has been crucial in shaping the country's approach to immigration and ensuring equal rights for all persons born within its borders.
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Equal protection
The Fourteenth Amendment, ratified in 1868, guarantees equal protection under the law to all persons within the jurisdiction of the United States, including citizens and non-citizens. This amendment was initially intended to secure equal treatment for African Americans after the abolition of slavery and to provide key rights for immigrants, such as birthright citizenship and due process.
The Equal Protection Clause of the Fourteenth Amendment ensures that no state can make or enforce any law that abridges the privileges or immunities of US citizens or denies any person within its jurisdiction equal protection under the law. This clause applies to "any person," regardless of citizenship status, and prohibits discrimination based on race, class, or gender for legal residents.
Over the years, the Supreme Court has addressed cases of discrimination based on alienage, or the differential treatment of citizens and non-citizens. In United States ex rel. Vajtauer v. Comm’r of Immigration at Port of N.Y. in 1927, the Court maintained that once an alien lawfully resides in the country, they are entitled to the rights guaranteed by the Constitution, including due process.
In another case, Plyler v. Doe, the Supreme Court ruled that undocumented immigrant children should have access to free public education, just as citizen children do, based on the Equal Protection Clause of the Fourteenth Amendment. This ruling ensures that undocumented children cannot be prohibited from enrolling in public schools.
While the Equal Protection Clause guarantees equal protection under the law for all persons, there have been instances where the Court recognised a permissible state interest in distinguishing between citizens and non-citizens. For example, in Mathews v. Diaz, the Court observed that Congress has broad power over immigration and can make rules for aliens that would be unacceptable if applied to citizens. Nonetheless, the Court has also emphasised that distinctions based solely on ancestry or national origin are odious and subject to close scrutiny.
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Due process
The Fifth Amendment to the US Constitution states that "no person shall be deprived of life, liberty, or property, without due process of law". Notably, the text uses the word "person", not "citizen". The Fourteenth Amendment also provides for due process, and the Supreme Court has consistently ruled that the Due Process Clause applies to all people in the United States, including non-citizens and undocumented immigrants. This means that non-citizens are entitled to fair treatment under the law, and have the right to defend themselves in court.
In the context of immigration, due process means that people accused of being in the country without authorization have the right to a fair trial in immigration court. They should have the chance to see and challenge the evidence against them, and to defend themselves. This can help prevent harmful injustices and the unchecked use of government power to detain, deport, and expel people from the country.
In practice, deprivations of due process have been common in the US immigration legal system, leading to many miscarriages of justice. For example, people facing deportation are not entitled to a court-appointed attorney if they cannot afford one. This is in contrast to criminal court, where the Sixth Amendment guarantees all people the right to an attorney, regardless of their ability to pay. An estimated 70% of people held in immigration detention on deportation cases in the past three years did not have legal representation.
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Right to education
While there is no explicit "right to education" in the US Constitution, two sections come into play when considering whether undocumented migrant children should have access to education. The Fourteenth Amendment states that:
> "No State shall [...] deny to any person within its jurisdiction the equal protection of the laws."
In the case of Plyler v. Doe, the Supreme Court ruled that if children who are citizens have access to free, public education, so should undocumented immigrant children. The Court held that if states provide free public education to US citizens and lawfully present foreign-born children, they cannot deny such an education to undocumented children without showing that it furthers some substantial state interest.
In other words, denying undocumented children an education is unconstitutional unless the state can provide a rational basis for doing so. This ruling means that undocumented children cannot be prohibited from enrolling in a public school.
The Flores settlement further supports the right to education for undocumented children. It requires that facilities where children are detained meet minimum requirements for providing education, healthcare, recreation, and other services. This includes hiring qualified teachers, providing adequate classroom space and materials, and ensuring access to appropriate education programs.
While undocumented immigrants are not guaranteed all the same rights as US citizens, they are protected by the Constitution's principles. The Fifth Amendment, for example, states that ""no person shall be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment also ensures that all state governments provide equal protection of the laws to all persons, regardless of immigration status.
In conclusion, although there is no explicit right to education in the Constitution, the Fourteenth Amendment's guarantee of equal protection under the law has been interpreted by the Supreme Court to include a right to education for undocumented children. This interpretation is further supported by the Flores settlement, ensuring that all children, regardless of immigration status, have access to a free, public education.
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Right to legal counsel
The right to legal counsel is a complex issue for immigrants in the United States, and it is not guaranteed in all cases. While the Sixth Amendment states that "in all criminal prosecutions, the accused shall have the assistance of counsel for his defence", this does not extend to civil cases, which includes most deportation proceedings.
The Supreme Court ruled in Gideon v Wainwright (1963) that the government must appoint legal counsel for defendants who cannot afford it, but this right does not typically apply to immigration cases. Immigrants in immigration court do not have a right to government-appointed counsel, and many cannot afford to hire a lawyer. This has a significant impact on the outcome of their cases. Research shows that immigrants with legal representation are far more likely to succeed in their removal proceedings than those without.
In the period between 2007 and 2012, only 37% of immigrants facing removal proceedings had legal representation, with the figure dropping to just 14% for detained immigrants. The right to legal counsel is especially pertinent given the lax evidentiary standards in immigration court, where documents do not need to be authenticated, and hearsay is admissible as evidence.
While the Fourteenth Amendment guarantees due process and equal protection under the law for all persons within US jurisdiction, regardless of their legal status, this has not been interpreted to include a right to legal counsel in immigration proceedings. The Fifth Amendment also guarantees due process, but again, this does not ensure access to legal representation in immigration cases.
It is worth noting that some states, such as Illinois, have taken steps to improve access to legal counsel for immigrants. Illinois Governor J.B. Pritzker signed a law allowing the Cook County Public Defender to represent immigrants in Chicago immigration court. Additionally, the Legal Orientation Program (LOP) offers legal education and referrals for free or low-cost legal counsel to non-citizens in immigration detention.
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Frequently asked questions
The Fourteenth Amendment, ratified in 1868, is the main amendment that covers immigration. It provides key rights for immigrants and their families, including birthright citizenship, equal protection, and due process.
The Fourteenth Amendment has been used in various court cases to protect the rights of immigrants. For example, in Wong Wing v. United States (1896), the Supreme Court recognised illegal immigrants as within American jurisdiction for the purposes of due process rights. In United States v. Wong Kim Ark (1898), the Supreme Court confirmed that children born in the US receive birthright citizenship, regardless of their parents' immigration status.
Yes, the Fifth Amendment's Due Process Clause has been used for the reverse incorporation of the Equal Protection Clause against the federal government. Additionally, the Sixth Amendment guarantees the right to legal counsel in criminal cases, which can impact immigration proceedings.
Yes, the US Constitution applies to undocumented immigrants as well. Many parts of the Constitution use the term "people" or "person," which has been interpreted to include everyone physically on US soil, regardless of citizenship status. Therefore, basic rights such as freedom of religion and speech, the right to due process, and equal protection under the law apply to both citizens and noncitizens.
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