Malcolm Rivera
The United States Constitution protects the rights of non-citizens in many ways. The Constitution uses the term 'person' or 'people' rather than 'citizen' in many parts, and the Supreme Court has insisted that foreign nationals are 'persons' within the meaning of the Constitution. This means that non-citizens are protected by the rights that the Constitution does not expressly reserve to citizens, such as freedom of religion and speech, the right to due process, and equal protection under the law. However, the issue of due process is complex, and the right to education is not expressly mentioned in the Constitution.
| Characteristics | Values |
|---|---|
| Non-citizens are protected by the Constitution | The Constitution uses the terms "people" or "person" rather than "citizen" |
| The Supreme Court has ruled that non-citizens are "persons" within the meaning of the Constitution | |
| Non-citizens have the right to free speech | |
| Non-citizens have the right to due process | |
| Non-citizens have the right to equal protection under the law | |
| Non-citizens have the right to vote in some local elections |
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What You'll Learn
The Supreme Court's ambivalent approach to the rights of non-citizens
The Supreme Court's approach to the rights of non-citizens has been described as ambivalent. While the Court has insisted that foreign nationals living in the US are "persons" within the meaning of the Constitution and are therefore protected by the rights that the Constitution does not expressly reserve to citizens, there are some rights that are reserved for citizens only, such as the right to vote and to run for federal elective office.
The Constitution's use of the term "people" or "person" rather than "citizen" means that many of the basic rights it outlines, such as freedom of religion and speech, the right to due process and equal protection under the law, apply to citizens and noncitizens alike. This has been the case for more than a century.
However, the issue of due process is particularly complex when it comes to immigration cases. 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". Yet, in practice, non-citizens may face challenges in accessing their rights, as illustrated by the 1993 Supreme Court case Reno v. Flores, which has returned to the spotlight with the surge in family separations.
Furthermore, while the Supreme Court has ruled that undocumented immigrant children should have access to a free, public education if citizen children do, this is not a constitutional right, but rather a decision based on the interpretation of two other sections of the Constitution. Similarly, while non-citizens are generally protected by the right to free speech, if what they say is considered a crime in their home country, they may be prosecuted upon their return.
Overall, while the Supreme Court has recognised that non-citizens are entitled to many of the same constitutional rights as citizens, there are some rights that are reserved for citizens only, and the interpretation and application of these rights can be complex and ambiguous.
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The right to vote in local elections
Non-citizens are protected by the Constitution because many parts of the Constitution use the term "people" or "person" rather than "citizen". As a result, many of the basic rights, such as the freedom of religion and speech, the right to due process and equal protection under the law apply to citizens and noncitizens. The Supreme Court has insisted for more than a century that foreign nationals living in the US are "persons" within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. The only rights that are expressly limited to citizens are the rights to vote and to run for federal elective office.
However, in some places, noncitizens are given the right to vote in local elections. For example, in San Francisco and Maryland, noncitizens are allowed to vote in some local elections. This was also the case in New York from 1969 until 2003, when local school boards were abolished.
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The right to free speech
However, it is important to note that the right to free speech is not absolute and there are limitations to this right. For example, the right to free speech does not protect speech that incites violence, hatred or discrimination. Additionally, the right to free speech may conflict with other rights, such as the right to privacy or the right to a fair trial.
In the context of non-citizens in the US, the right to free speech is particularly important as it allows individuals to express their opinions and participate in public discourse, regardless of their immigration status. This right has been affirmed by the Supreme Court, which has held that foreign nationals living in the US are "persons" within the meaning of the Constitution and are protected by the rights that the Constitution does not expressly reserve to citizens.
While the right to free speech for non-citizens is protected under the US Constitution, there may be practical challenges in exercising this right. For example, non-citizens may face language barriers or may be unfamiliar with the legal system, which could impact their ability to understand and assert their rights. Additionally, non-citizens may face discrimination or hostility from those who oppose their presence in the country, which could create a chilling effect on their free speech.
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The right to due process
The issue of due process is central to many immigration cases, including Reno v. Flores, a 1993 Supreme Court case that has returned to the spotlight with the surge in family separations.
In addition to these rights, noncitizens in some places have been given the right to vote in local elections. For example, in New York, noncitizens were given the same right to vote as citizens from 1969 until 2003, when local school boards were abolished. Now, San Francisco and Maryland are also giving noncitizens the right to vote in some local elections.
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The right to equal protection under the law
The Supreme Court has long held that foreign nationals living in the US are considered "persons" within the meaning of the Constitution and are therefore protected by the same rights. This interpretation of the Constitution ensures equality between citizens and non-citizens, with only a few exceptions.
One example of this equality in practice is the right to free speech. Non-citizens are protected by the First Amendment, which guarantees freedom of speech. This means that if a non-citizen says something that is protected under free speech in the US but not in their home country, they will not be charged with any crime in the US. However, their home country may choose to prosecute them upon their return.
Another example of equal protection under the law for non-citizens is 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 right applies to everyone physically present in the US, regardless of their citizenship status.
In addition to these rights, non-citizens may also have the right to vote in some local elections. For example, in San Francisco and Maryland, noncitizens have been given the right to vote in certain local elections. This expansion of voting rights demonstrates a commitment to equal protection under the law for all individuals, regardless of citizenship.
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Frequently asked questions
The Supreme Court has insisted that foreign nationals are "persons" within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. The rights to vote and to run for federal elective office are expressly limited to citizens. However, many parts of the Constitution use the term "people" or "person" rather than "citizen", and these laws apply to everyone physically on US soil.
Non-citizens have almost all the same rights as citizens, except for the right to vote and to collect welfare. Basic rights such as freedom of religion and speech, the right to due process and equal protection under the law apply to citizens and noncitizens.
There is no "right to education" in the Constitution, but in the case of Plyler v. Doe, the Supreme Court ruled that if children who are citizens have access to a free, public education, so should undocumented immigrant children.
