Malcolm Rivera
The U.S. Constitution and its amendments protect the rights of non-citizens in a variety of ways, depending on their legal status and circumstances. While the Constitution does not explicitly mention non-citizens, it uses terms like people and person, which have been interpreted to include non-citizens in certain contexts. For example, the Fifth Amendment guarantees due process rights to persons, which has been extended to non-citizens, ensuring fair treatment in legal proceedings. The Fourteenth Amendment's Equal Protection Clause also prohibits unlawful discrimination against any person, providing a basis for equal rights in education and other areas. The First Amendment, which guarantees freedom of speech, religion, and assembly, is generally understood to apply to everyone within U.S. borders, including non-citizens. However, the Supreme Court has not provided a definitive ruling on this matter, and interpretations vary. While non-citizens do not have the right to vote, they may be granted certain political rights and protections based on their legal status and connections to the U.S.
| Characteristics | Values |
|---|---|
| Right to due process | Protected by the Fifth Amendment and the Fourteenth Amendment |
| Right to equal protection under the law | Protected by the Fourteenth Amendment |
| Right to freedom of religion | Protected by the First Amendment |
| Right to freedom of speech | Protected by the First Amendment |
| Right to freedom of the press | Protected by the First Amendment |
| Right to assembly | Protected by the First Amendment |
| Right to petition the government | Protected by the First Amendment |
| Right to a speedy and public trial by jury | N/A |
| Right against unlawful searches and seizures | N/A |
| Right to vote | The Constitution does not prohibit anyone from voting |
| Right to education | The Supreme Court ruled that undocumented immigrant children should have access to education |
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What You'll Learn
The First Amendment and non-citizens
The First Amendment to the U.S. Constitution guarantees the freedoms of religion, speech, press, assembly, and petition. However, it is unclear whether these freedoms apply only to U.S. citizens or also to non-citizens. The First Amendment itself does not make a distinction between citizens and non-citizens, but the courts have not always treated these groups equally.
The Constitution often uses the terms "people" or "person" instead of "citizen," indicating that certain rights may apply to both citizens and non-citizens. For example, 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 everyone within U.S. jurisdiction, regardless of citizenship.
The Supreme Court has addressed the rights of non-citizens in several cases, but there is no definitive ruling. In United States ex rel. Knauff v. Shaughnessy (1950), the Court held that aliens seeking entry into the U.S. are entitled to lesser First Amendment protections because they have no right to enter the country. During the McCarthy Era, in Harisiades v. Shaughnessy (1952), the Court allowed the deportation of a legal resident alien who was a member of the Communist Party. However, Justice William O. Douglas dissented, arguing that assimilated aliens should be treated as citizens regarding their property and liberty.
In another case, the Court reversed the deportation of labor activist Harry Bridges, an Australian, citing his freedom of speech and press. Bridges had made statements indicating "affiliation" with the Communist Party, but the Court ruled that his speech was protected. On the other hand, in Galvan v. Press, the Court sided with the government's decision to deport Robert Galvan, a Mexican-born man who admitted to being a member of the Communist Party. Galvan's lawyers appealed to his First Amendment right to political speech and association, but the Court did not find that his deportation violated the First Amendment.
The question of non-citizens' First Amendment rights remains complex and unresolved. Legal scholars and federal judges disagree on whether unauthorized immigrants are protected by the First Amendment. Some argue that only immigrants who enter legally and have a "sufficient connection" to the U.S. are protected, while others contend that the First Amendment protects marginalized groups' right to have a voice, regardless of identity.
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The Fifth Amendment and due process
The Fifth Amendment of the US Constitution protects citizens and non-citizens alike from being "deprived of life, liberty, or property, without due process of law". Due process is a broad concept that requires the government to provide a person with notice and an opportunity for a hearing before depriving them of their rights. The Supreme Court has interpreted the Fifth Amendment's Due Process Clause as including substantive due process guarantees, protecting certain fundamental constitutional rights from federal government interference. This means that the government cannot restrict the freedoms of religion, speech, press, assembly, and petition, regardless of a person's legal status.
The Fifth Amendment also states that no person shall be compelled in any criminal case to be a witness against themselves, nor be subject to the same offence and be twice put in jeopardy. This is often referred to as the protection against self-incrimination and double jeopardy.
The issue of due process is central to many immigration cases, such as Reno v. Flores, a 1993 Supreme Court case that gained renewed attention due to the surge in family separations at the border. The case resulted in an agreement mandating the government to release children to their parents, a relative, or a licensed program within 20 days.
While the Fifth Amendment protects due process rights at the federal level, the Fourteenth Amendment imposes similar limitations on state governments. Both amendments use identical language regarding due process, ensuring that no person shall be deprived of life, liberty, or property without it.
The question of who is included in "the people" mentioned in the Constitution has been a subject of debate, especially regarding unauthorized immigrants. The First Amendment, for instance, guarantees freedom of speech, religion, press, assembly, and petition to "the people", but it is unclear whether this refers only to citizens or a broader category, including non-citizens. The Supreme Court has not provided a definitive ruling on this matter.
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The Fourteenth Amendment and equal protection
The Fourteenth Amendment to the US Constitution was passed by Congress on June 13, 1866, and ratified on July 9, 1868. It was part of the Reconstruction program to guarantee equal civil and legal rights to Black citizens after the Civil War.
The Fourteenth 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". It also includes the Equal Protection Clause, which mandates that "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". This clause ensures that individuals in similar situations are treated equally by the law.
The Fourteenth Amendment has been interpreted to mean that non-citizens are entitled to certain constitutional protections, such as the right to due process and equal protection under the law. This means that non-citizens facing deportation are entitled to a hearing before an immigration judge, to be represented by a lawyer, and to put forth witnesses and defenses. The Supreme Court case of Plyler v. Doe also ruled that undocumented immigrant children must be given access to a free, public education, as denying them this right would violate the Equal Protection Clause.
However, there is legal uncertainty about whether the First Amendment protections of freedom of religion, speech, press, assembly, and petition apply to non-citizens. The Supreme Court has not ruled definitively on this question, and legal scholars and federal judges disagree on the interpretation of the First Amendment in this context.
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The Fourteenth Amendment and public education
The Fourteenth Amendment has had a significant impact on protecting public education rights in the US. While the US Constitution does not expressly mention education, the Fourteenth Amendment protects public education rights through its Equal Protection and Due Process Clauses.
The Fourteenth Amendment ensures that "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 Due Process Clause prohibits states from depriving any person of life, liberty, or property without due process of law, and the Supreme Court has interpreted this clause to have substantive and procedural protections.
In the context of public education, the Fourteenth Amendment has been interpreted to protect a parent's right to direct the educational upbringing of their child. This was seen in the case of Plyler v. Doe, where the Supreme Court ruled that if children who are citizens have access to a free, public education, so should undocumented immigrant children. The Court held that these children are "'people' as stated in the Fourteenth Amendment, and under the Equal Protection Clause, their immigration status is not a sufficient basis for denying them the benefits afforded to other residents.
The Fourteenth Amendment has also played a significant role in ending discriminatory practices in public schools. In the landmark case of Brown v. Board of Education (1954), the Supreme Court interpreted the Equal Protection Clause to mean that "separate but equal" educational facilities are inherently unequal and violate the Fourteenth Amendment. This decision required all public schools in the US to end the practice of segregating students based on race, marking a pivotal moment in the civil rights movement and shaping the course of public education in the country.
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The right to vote
However, the Constitution also explicitly prohibits non-citizens from voting in federal elections. The Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, among others, reinforce this restriction. The NO VOTE for Non-Citizens Act of 2023 further clarifies that only eligible American citizens may participate in federal elections.
Despite these prohibitions, some municipalities have expanded voting rights to include non-citizens in local elections. For example, in 2016, San Francisco passed Proposition N, which granted non-citizens the right to vote in school board elections. Similarly, the City of Takoma Park, Maryland, allowed non-citizen voting in local elections as early as 1992. These expansions of voting rights occur in states with no explicit constitutional or legislative impediments to municipalities passing their own voter qualification laws.
It's important to note that the right to vote has been historically restricted based on race and gender. Amendments like the Fifteenth Amendment (1870) and the Nineteenth Amendment (1920) were necessary to grant African American men and women, respectively, the right to vote. Additionally, laws such as the Voting Rights Act of 1965 prohibited voter discrimination based on race, colour, or membership in a language minority group.
In summary, while the US Constitution prohibits non-citizens from voting in federal elections, there have been efforts to include non-citizens in the democratic process at the local level. The right to vote continues to evolve through legal challenges and legislative changes, shaping the voting rights landscape in the United States.
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Frequently asked questions
Yes, non-citizens are afforded some constitutional rights in the US. 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." The Fourteenth Amendment also ensures that "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 First Amendment also protects the rights of marginalized people to have a voice and prevents the government from preferring some speakers over others based on their identity.
Non-citizens have the right to due process and equal protection under the law. This includes the right to a hearing before an immigration judge, to be present at the hearing, to be represented by a lawyer, to put forth witnesses and defenses, and to have access to interpretation for non-English speakers. Non-citizens are also protected by the First Amendment, which includes the freedom of speech, freedom of religion, and the right to assemble and petition the government.
Yes, there are some constitutional rights that are limited to citizens. For example, the right to vote is limited to citizens in some jurisdictions. Additionally, the Supreme Court has held that the extent of due process protection may vary depending on the individual's status and circumstances.
