Eleanor Finch
The U.S. Constitution applies to We the People, but there is legal uncertainty about who exactly is included and excluded by this statement. The misconception that the Constitution applies only to U.S. citizens has been dispelled by the Supreme Court, which has extended constitutional protections to all persons within the United States, including non-citizens and undocumented immigrants. However, the question of whether the First Amendment applies to non-citizens is more complex, with legal scholars and federal judges divided on the issue. While the First Amendment guarantees freedom of speech, religion, assembly, and freedom from unlawful government interference, the extent to which it applies to non-citizens with no legal status remains unclear.
| Characteristics | Values |
|---|---|
| Citizens | Have the right to vote |
| Non-citizens | Do not have the right to vote |
| Immigrants | May be protected by the First Amendment |
| Unauthorized immigrants | May not be protected by the First Amendment |
| Permanent residents | May have deportation cases handled fairly and in line with the law |
| Persons | Are guaranteed due process of law by the Fifth and Fourteenth Amendments |
| Representatives | Must be apportioned among the several States according to their respective numbers |
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What You'll Learn
Non-citizens and undocumented immigrants
The rights of undocumented immigrants and non-citizens in the United States are a complex issue, shaped by constitutional protections, federal laws, and court rulings. While non-citizens do not enjoy the same comprehensive liberties as citizens, they are entitled to certain fundamental protections under the law.
The US Constitution applies to "people" or "persons", not just "citizens", and so many of the basic rights, such as freedom of religion and speech, the right to due process, and equal protection under the law, apply to citizens and non-citizens alike. 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 Sixth Amendment guarantees the right to counsel in criminal prosecutions, which also applies to immigration proceedings. However, the government is not obligated to provide free legal counsel to undocumented immigrants in deportation proceedings, which can create a significant barrier for those unfamiliar with the legal system or lacking financial resources.
The Fourteenth Amendment ensures that no state can "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 has been interpreted to mean that undocumented children cannot be prohibited from enrolling in a public school, as citizen children have access to free public education. The Supreme Court has also ruled that the government cannot detain undocumented children indefinitely without providing them with basic necessities and educational opportunities.
In addition, the Supreme Court has extended constitutional protections to all aliens within the United States, including those who entered unlawfully. This means that aliens can only be expelled after proceedings that conform to traditional standards of fairness, encompassed in due process law. However, it is important to note that the Bill of Rights is not extended to non-citizens in its entirety. For example, non-citizens do not have the right to vote, serve on juries, or own a gun.
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Aliens in the United States
There is a common misconception that the US Constitution applies only to US citizens. However, the Fifth and Fourteenth Amendments protect every person within the United States from deprivation of life, liberty, or property without due process of law.
In 1903, the Court in the Japanese Immigrant Case reviewed the legality of deporting an alien who had lawfully entered the United States. The Court clarified that an alien who has entered the country, become subject to its jurisdiction, and become part of its population could not be deported without an opportunity to be heard upon the questions involving their right to be and remain in the United States.
In 1940, the Alien Registration Act was passed, requiring all aliens in the United States aged 14 and over to submit to registration and fingerprinting. Willful failure to comply was made a criminal offense. This Act, in conjunction with other laws, has constituted a comprehensive and uniform system for the regulation of all aliens.
In 1950, the Internal Security Act authorized the Attorney General to hold aliens who were members of the Communist Party of the United States in custody without bail, pending determination as to their deportability.
The Supreme Court has extended constitutional protections to all aliens within the United States, including those who entered unlawfully. The Court has maintained that once an alien lawfully enters and resides in the country, they become invested with the rights guaranteed by the Constitution to all people within its borders. These rights become more extensive and secure when the alien makes a preliminary declaration of intention to become a citizen.
The 14th Amendment ensures that no state can deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws. In the 1982 case of Plyer v. Doe, the Court held that the children of undocumented immigrants are "people" as stated in the 14th Amendment, and that one's immigration status is not a sufficient basis for denying benefits afforded to other residents.
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The right to vote
Initially, most states restricted voting rights to property-owning or tax-paying white men. However, some states, like New Jersey, allowed free Black men and women of both races to vote if they met the property or tax requirements. Over time, states began expanding voting rights, but this process was uneven due to the lack of uniform standards. For instance, Wyoming granted women the right to vote in 1869, while it took until 1920 for all women to achieve this right nationally with the 19th Amendment.
The 15th Amendment, ratified in 1870, was a significant step towards expanding voting rights. It granted all male citizens the right to vote, regardless of their race or prior slave status. However, despite this amendment and its predecessors, the Supreme Court interpreted the right to vote narrowly, allowing discriminatory practices and laws to persist, particularly in Southern states. These included poll taxes, literacy tests, and the intimidation tactics of groups like the Ku Klux Klan, which effectively suppressed the Black vote.
To address these issues, various pieces of federal legislation have been enacted over time. The Voting Rights Act of 1965, for example, secured voting rights for adult citizens of all races and genders by enforcing the amendments through federal law. The Voting Accessibility for the Elderly and Handicapped Act of 1984 ensured that polling places were accessible to people with disabilities. The 26th Amendment, ratified in 1971, lowered the voting age to 18 for all elections. While the right to vote is now more inclusive, some restrictions remain, such as those prohibiting convicted felons from voting in certain states. Additionally, voter ID laws vary between states, with some requiring a photo ID while others may not require any ID at all.
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The Bill of Rights
The United States Constitution, beginning with the words "We the People", is composed of the Preamble, seven articles, and 27 amendments. The first 10 amendments are known as the Bill of Rights.
The 14th 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 Supreme Court has interpreted this to mean that all persons, regardless of legal status, are guaranteed due process of law. This was demonstrated in the 1982 case of Plyer v. Doe, where the Court held that the children of undocumented immigrants were "people" under the 14th Amendment and were therefore entitled to equal protection under the law.
However, the question of whether the Bill of Rights applies to non-citizens is complex and remains unresolved by the Supreme Court. The First Amendment, for example, does not specify whether "the people" who are given freedoms of religion, speech, press, assembly, and petition are a narrow group of citizens or a broader category. In 2015, the Department of Justice argued that unauthorized immigrants do not receive First Amendment protections, while others have argued the opposite, citing the Citizens United ruling.
The Supreme Court has suggested that constitutional protections may vary depending on an individual's status and circumstances, and that these protections may expand as an individual develops stronger ties to the country.
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The First Amendment
The text of the First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abriding the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
While the First Amendment speaks of "the people," there is legal ambiguity regarding who this includes and, more importantly, who it excludes. This ambiguity has led to questions about whether non-citizens are protected by the First Amendment. The Supreme Court has not provided a definitive ruling on this matter. However, in Reno v. American Arab Anti-Discrimination Committee, Justice Antonin Scalia stated, "An alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation."
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Frequently asked questions
The US Constitution applies to everyone in the country, regardless of their citizenship status. The Bill of Rights protects everyone, including undocumented immigrants, to exercise free speech, religion, assembly, and to be free from unlawful government interference.
The First Amendment itself does not make clear whether "the people" given the freedoms of religion, speech, press, assembly and petition are a narrow group of citizens or a broader category. The Supreme Court has not ruled in a direct way that neatly resolves it.
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 Fourteenth Amendment protects every person from deprivation of life, liberty, or property without due process of law.
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