Rights
are defined as legal or moral entitlements that are guaranteed by the
constitution of a nation. It is an aspect of almost every society in the world
and provides a means through which individuals can be able to express
themselves.[1]
However, it is noteworthy that the understanding of rights and what they mean
tends to be based on the environment or background of individuals. This understanding
comes about because of the way that they understand the concept of society as
well as the worldview of the social environment within which they were raised. In
the United States, the concept of rights and who should enjoy them has become
very politicized, especially in the 20th century, to such an extent
that it has become common for individuals in American society to believe that
only citizens are allowed to enjoy rights under the Constitution.[2]
A majority of individuals that are asked whether undocumented immigrants have
rights in the country will often state that they do not believe so and in fact,
rights are a privilege reserved on for citizens of the United States. The
Constitutional rights of undocumented immigrants in society are therefore
considered not be exist and that they only deserve to have human rights. The
importance of this position cannot be underestimated because it shows the
politically charged atmosphere within which individuals in American society
have been raised and the failure to recognize that undocumented immigrants also
have the same Constitutional rights as citizens.[3]
These rights are a basic part of the Constitution and because of this, there is
the need to make sure that there is the promotion of these rights for undocumented
immigrants. The constitution uses the term “people” or “persons” and not the
term “citizens” when referring to rights meaning that it applies to everyone
that resides on the soil of the United States regardless of whether they are citizens
or not.
This
paper will consider the question of whether undocumented immigrants have
certain rights under the Constitution. Next, it will look into whether all
immigrants that are undocumented are entitled to the same constitutional
rights. Moreover, the paper will focus on immigration rights as well as make an
analysis of the way that the Constitution is potentially violated by affording
undocumented immigrants different treatment from citizens. A consideration of
immigration law and whether foreign nationals are entitled to the same
constitutional rights will be made in order to determine the status of undocumented
immigrants in the country. Finally, the paper will conclude with a discussion
of the issues that have been raised in the main part of the document and make
the argument that the constitutional rights apply to all individuals living in
the United States and is not reserved only for its citizens.
Do undocumented immigrants have certain
rights under the Constitution?
It
is important to consider that undocumented immigrants do have certain rights
under the Constitution, which are protected within the Fifth and Fourteen
Amendment. The significance of this can be seen under the Fifth Amendment,
which states that no ‘person’ should be deprived of their ‘life, liberty, or
property without due process of the law’.[4]
This clause is therefore important because it assures the people living in the United
States, no matter their background or the way that they arrived in the country,
that they will be protected by the law and that their constitutional rights are
guaranteed. It is also a significant clause because it essentially prevents the
government from arbitrarily stripping individuals of their rights, with
specific reference to the Bill of Rights, which is one of the bases of the
United States Constitution. It shows that individuals in the United States,
including undocumented immigrants, have the right to the same constitutional
protections as citizens because despite the way that they have come to the
country, they are still residents and under the same laws as other individuals
in society. The Fifth Amendment is therefore crucial in determining that all
residents of the United States have the same constitutional rights and none
should be discriminated against because of their legal status.
Additionally,
the Fourteenth Amendment makes the declaration that ‘nor shall any State
deprive any person of life, liberty, or property, without due process of the
law’.[5]
The latter also not only covers the citizens of the nation, but also any person
that is within its jurisdiction. This allows for protections for all
individuals living in the country no matter their color, race, or nationality,
which ensures that all of them are protected by the Constitution. Furthermore,
under this clause, undocumented immigrants are also afforded the same guarantees,
which provide them with the means of making sure that they can live their lives
without the fear of discrimination by state governments. It is therefore an
important clause because it allows all the individuals involved to attain all
the protections that are guaranteed by the Constitution since they are under
the jurisdiction of the United States. Moreover, it is noteworthy that
undocumented immigrants are also persons that are recognized by the
Constitution, which does not explicitly state that they are different and in
fact, the Constitution allows for protections and rights to be extended to all
people living in the country.
The Purpose of the Constitution
The
major purpose of the Constitution is to ensure that there is the establishment
of basic rights for all individuals residing in the territory of the United States.
This is significant because it is also the basis upon which the national government
as well as its fundamental laws is founded.[6]
Affording protections for all individuals living within its jurisdiction is the
basis upon which they Constitution of the United States was developed, and this
was based on a desire by the Founding Fathers to make sure that there were
guarantees against tyranny by the government.[7]
They seem to have viewed the United States as a refuge against the tyranny that
they had just fought against; that is overthrowing the British government which
had not afforded them the basic rights that other citizens in Britain were
provided. Thus, all individuals living in the United States, including
undocumented immigrants, have the right to be provided with the legal
protections that are guaranteed by the Constitution because they fall under the
jurisdiction of the laws that have been established by it. The rights of all
individuals are therefore critical to the Constitution because it ensures that
they are protected against the tyranny of government.
Furthermore,
the Constitution created a system of checks and balances based on the
establishment of three equal branches of government, namely the executive,
legislature, and the judiciary so that the rights of persons could be
guaranteed.[8] The
Constitution is therefore present to ensure that the structures of government
are established in order to efficiently serve all the people that live in the
United States, as seen through the way that it specifically refers to ‘persons’
rather than ‘citizens’; distinctions which have to be taken note of when it
comes to addressing the issue of whether immigrants or foreign nationals on
American soil have rights under the American Constitution. It is also pertinent
to note that the Constitution’s purpose is to ensure that the rights of
individuals are protected through creating limits to the power of government;
as has been seen above through the establishment of a system of government that
has checks and balances.[9]
Limiting the power of government ensures that there is the promotion of basic
freedoms across society and allows for individuals to live their lives as they
see fit unless in scenarios where they could end up causing harm to others.
Are all undocumented immigrants entitled to
an identical set of constitutional rights?
The
question of whether all undocumented immigrants are entitled to the same constitutional
rights is quite relevant, with the answer being they are indeed entitled to
them. This is because most of the provisions of the Constitution are based on
the status of personhood rather than citizenship[10];
essentially referring to the jurisdiction of the Constitution. This provision
is critical because it ensures that there is the promotion of the rights of all
the people within the United States or in places where its constitution is the
basis of the laws that govern it. Thus, all individuals that are on American
soil have the same rights and there should be no discrimination based on
citizenship. The Constitution is therefore not a discriminatory document and
instead, all individuals within its jurisdiction are entitled to the same
constitutional rights that allow for the creation of an environment within
which it becomes possible for them to live without the fear of discrimination
or abuse of their rights by either the government or the citizens of the
nation. A result is that basic rights guaranteed by the Constitution, including
the freedom of speech and religion, in addition to equal protection under the
law and to due process apply to both citizens and noncitizens.[11]
However, how these rights are applied in practice is what has become a matter
of concern, especially for undocumented immigrants.
Immigration Rights
The
application of equal protection and due process when it comes to the rights of
noncitizens are highly dependent on the federal government. The federal
government has the power to select the terms by which foreign nationals can not
only enter the United States, but also how they can be naturalized.
Furthermore, it is pertinent to note that due process is an issue that is often
at the heart of many cases involving immigration, including Reno v Flores.[12]
This case is significant because it involved the Supreme Court in 1993 which
provided for a reduction in the surge of family separations that had taken
place due to undocumented immigration. The case led to an agreement that
required that the federal government would have to place children into the
custody of their parents or relatives, and in the case of these not being
available, to a licensed program within 20 days of their being separated from
their parents. Additionally, the Commerce clause of the Constitution authorizes
Congress ‘to regulate commerce with foreign nations, and among the states and
with Indian tribes’.[13]
This clause is significant because it serves as the legal foundation for the
regulatory power of the federal government and has been used to effectively
protect individuals in society, especially minorities, since the passage of the
Civil Rights Act.
State
legislation has also played a role in making sure that undocumented immigrants’
constitutional rights are upheld. The case of Plyler v Doe is a significant one
because the court essentially struck down a law that discriminated against the
children of undocumented immigrants by denying them access to public education.[14]
The Supreme Court found that any of the restrictions that were placed on access
to public education by immigrant children amounted to discrimination and that
there was the need to make sure that there was take on a rational approach to
the issue. The significance of this case can be seen through the way that it
showed the power that both the executive and judiciary have on noncitizens,
especially undocumented immigrants, who often end up being victims of the
system.[15]
A consideration of the way that there seems to be a concerted effort by the
executive and legislature to curb the rights of these individuals while the
same is often countered by the judiciary is an issue that shows the precarious
position of these individuals in the United States.
The Constitution and immigration law
As
seen above, immigrants have the right to due process, the same as citizens. However,
the reality of the situation is that it is the courts that often end up
determining whether these individuals should have the same rights. There are
some cases where undocumented immigrants end up not being granted a hearing and
because of this; they are forced into scenarios where their rights are
violated, especially when it comes to issues concerning deportation.[16]
Moreover, the Constitution grants Congress the responsibility to ‘establish a
uniform rule of naturalization’.[17]
This is an issue that is handled differently depending on the people in power
at the time, with the result being that the Supreme Court has been consistent
in its backing of immigration regulations of the federal government against any
forms of constitutional challenges.[18]
Thus, when it comes to immigration law at the federal level, it is common for
powerful forces at the state and local levels to influence them.[19]
This is to such an extent that they normally do not follow the letter of the
Constitution, which states that alien nationals are permitted the same rights
as citizens of the United States.
Are Foreign Nationals Entitled to the same
Constitutional Rights as Citizens?
The
difficulty in this question lies in the way that there is a level of
ambivalence in the Supreme Court when it comes to addressing it.[20]
The ambivalence of the Supreme Court in addressing this question has created a
scenario where it is quite difficult for governments at all levels to come up
with unified policies aimed concerning noncitizens in the United States. Another
aspect that has made it difficult to interpret the Constitution effectively is
the politicization of the issue of immigrants in the United States, with
specific reference to the undocumented ones. There is a high level of
xenophobic attitude towards undocumented immigrants from the American public
and this has tended to dictate policy, especially after the end of the Cold
War.[21]
However, the Supreme Court has always held that foreign nationals living in the
United States are defined as ‘persons’ as stated in the Constitution, and as
such, are protected by the Constitution since the rights it accords are not
reserved for only citizens. In addition, because the Constitution expressly
only limits foreign nationals in a specific number of cases, including running
for elective office at the federal level as well the right to vote, the rights
of foreign nationals are protected in all other aspects.[22]
Therefore, the Constitutional stance is that all individuals living within the
United States, whether citizens or foreign nationals, are deemed equal before
the law. The significance of this can be seen through the way that the
Constitution insists on the use of ‘persons’ over ‘citizens’ when describing
the rights that should be enjoyed by people in the United States.
Thus,
the Constitution and the rights that it accords are applicable to immigrants,
both legal and undocumented. However, it does not tell how far such rights
extend towards foreign nationals because there are certain rights which have
been determined not to be absolute.[23]
The power over immigration is vested on Congress and it is this institution
that determines which non-citizens have the right to immigrate. However, while
this may be the case, it is important to consider that the power of Congress
does not encompass the rights of foreign nationals once they get to the United
States because it cannot interfere with the equal protection and due process
clauses, which are meant to apply to all people living in the country. Moreover,
states and the federal government are also not empowered to interfere with the
due process and equal protections that are a critical aspect of the United
States Constitution.[24]
Thus, they have to abide by the restrictions placed on their power over how to
treat foreign nationals by the Constitution. Despite this, there are instances
where different levels of government, specifically state and federal, often end
up violating the rights of undocumented immigrants, and the Supreme Court’s
ambivalence towards the issue has made it difficult for this issue to be put to
bed once and for all.[25]
It is therefore necessary for more tangible action to be taken by the Supreme Court
to ensure that the correct interpretation of the Constitution concerning the
equal rights of foreign nationals to citizens is enforced through a restriction
of what the different levels of government can do.
Conclusion
The
Constitution of the United States was designed to give and protect the rights
of all persons under its jurisdiction. Thus, all individuals in American
territory, regardless of gender, race, citizenship, or socioeconomic status are
to be afforded the same constitutional rights. However, while this might be the
intent, the application of the law has since the inception of the Constitution
increasingly favored citizens over noncitizens, especially undocumented
immigrants. This process has ensured that there is the promotion of an
environment within which it has become quite difficult for such immigrants to
gain their full rights in the United States because it is powerful interests at
all levels of government, rather than the Constitution, that have ended up
determining their fate. Therefore, there is the need for there to be a more
open approach to the issue in such a way that encourages the Supreme Court to
make sure that it takes on a proactive approach to addressing the rights of
foreign nationals, including undocumented immigrants, in the United States.
This move would ensure that there is the removal of confusion concerning the
issue and allow for the establishment of means through which all individuals in
American society will be able to enjoy their full constitutional rights without
the fear of discrimination from all levels of government.
[1] Laurence H Tribe & Michael C Dorf, Levels
of Generality in the Definition of Rights, 57 The University of Chicago Law Review, 1057 (1990).
[2] David Cole, Are foreign nationals
entitled to the same constitutional rights as citizens, 25 T. Jefferson L. Rev., 367 (2002).
[3] Susan Bibler Coutin, The rights of
noncitizens in the United States, 7 Annual
Review of Law and Social Science, 290 (2011).
[4] Stephen F Williams, Liberty in the
Due Process Clauses of the Fifth and Fourteenth Amendments: The Framers'
Intentions, 53 U. Colo. L. Rev.
(1981);D Nunez, Inside the Border,
Outside the Law: Undocumented Immigrants and the Fourth Amendment, 85 S. Cal. L. Rev. (2011).
[5] Felix Frankfurter, Memorandum
on" Incorporation" of the Bill of Rights into the Due Process Clause
of the Fourteenth Amendment, 78 Harvard
Law Review (1965).
[6] Edward S Corwin, The basic doctrine
of American constitutional law, 12 Michigan
Law Review (1914).
[7] Mary Strong, Protections against
Tyranny: How Article V Should Guide Constitutional Interpretation, 96 Ind. LJ (2020).
[8] Peter M Shane, Political
accountability in a system of checks and balances: the case of presidential
review of rulemaking, 48 Ark. L. Rev.
(1995);Randall G Holcombe, Checks and
balances: Enforcing constitutional constraints, 6 Economies (2018).
[9] First Amendment, US Constitution,
The Federalist Papers (1791).
[10] Linda Bosniak, Persons and citizens
in constitutional thought, 8 International
Journal of Constitutional Law (2010).
[11] James A Goldston, Holes in the
rights framework: racial discrimination, citizenship, and the rights of
noncitizens, 20 Ethics &
International Affairs (2006).
[12] Reno v. Flores, 507 292, (Supreme
Court);Erin Eileen Gorman, Reno v.
Flores: The INS' Automatic Detention Policy for Alien Children, 7 Geo. Immigr. LJ (1993).
[13] Jennifer Gordon, Immigration as
Commerce: A New Look at the Federal Immigration Power and the Constitution,
93 Ind. LJ (2018);Albert S Abel, The Commerce Clause in the Constitutional
Convention and in Contemporary Comment, 25 Minn.
L. Rev. (1940).
[14] Laura S Yates, Plyler v. Doe and the
rights of undocumented immigrants to higher education: Should undocumented
students be eligible for in-state college tuition rates, 82 Wash. ULQ (2004);Plyler v. Doe, 457 202, (Supreme Court).
[15] Gretchen Frazee, What Constitutional
Rights do Undocumented Immigrants Have?,” 25 PBS NewsHour, June (2018).
[16] Karen Nelson Moore, Aliens and the
Constitution, 88 NYUL Rev.
(2013).
[17] Harold Brienes, Yes, Virginia, There
Is a Uniform Rule of Naturalization Clause: Nemetz v. Immigration and
Naturalization Service, 3 U.
Bridgeport L. Rev. (1981).
[18] Anne E Pettit, One Manner Of Law:
The Supreme Court, Stare Decisis and the Immigration Law Plenary Power Doctrine,
24 Fordham Urb. LJ (1996).
[19] Justin Peter Steil & Ion Bogdan Vasi, The new immigration contestation: Social movements and local
immigration policy making in the United States, 2000–2011, 119 American Journal of Sociology (2014).
[20] Hiroshi Motomura, Whose immigration
law?: Citizens, Aliens, and the Constitution, 97 Columbia Law Review (1997).
[21] Knud S Larsen, et al., Threat
perception and attitudes toward documented and undocumented immigrants in the
United States: Framing the debate and conflict resolution, 7 European Journal of Social Sciences
(2009).
[22] Diane Edwards La Voy, Foreign
nationals and American law, 15 Society
(1977).
[23] Mark D Rosen, When Are
Constitutional Rights Non-Absolute: McCutcheon, Conflicts and the Sufficiency
Question, 56 Wm. & Mary L. Rev.
(2014).
[24] Cole, T. Jefferson L. Rev., (2002).
[25] Pettit, Fordham Urb. LJ, (1996).
