The Bill of Rights and Immigrants

Question: Does the Bill of Rights apply to immigrants?

Recently I’ve been getting into some interesting discussions with my cousin’s husband. Many of these discussions tend to involve abortion, as he is adamantly “pro-life”, but recently he made some comments regarding the Constitution and its applicability, or lack thereof, to non-citizens.

First, to say the Bill of Rights applies only to citizens of the United States is incorrect. Those who say this do not fully understand the Bill of Rights or the Constitution. But then again, this is not really any surprise.

The United States Bill of Rights is comprised of the first ten Amendments to the Constitution of the United States. To say they are “rights”, though, actually undermines the purpose of the Constitution, which is to establish a republican form of government, which Article IV of the Constitution requires.

It is called the Bill of Rights to mirror the British Bill of Rights of 1689, in which the people of England received in writing guarantees of certain rights by the King.

In the United States under the Constitution, the government grants no one their rights. You have them, and have always had them. They are inherent and inalienable.

Now if the Bill of Rights applied only to citizens, whether natural born or naturalized, then the government could be absolutely tyrannical toward immigrants. This means the government could:

  • arrest them up for no reason (a violation of Article I, Section 9 requirement for a writ habeas corpus)
  • arrest them if they say anything the government does not like (violating their First Amendment right to free speech)
  • seize their property without cause (a violation of both the Fourth Amendment’s protection against unreasonable searches and seizures and the Fourteenth Amendment’s guarantee of due process)
  • torture them until they are inches from death (a violation of the Eighth Amendment)

Obviously none of this is occurring, because the government is indiscriminately restrained. Regardless of with whom the government is interacting, whether they be a citizen, legal or illegal immigrant, the government must act the same.

The Bill of Rights provides for further express limitations upon the government over what the Constitution provides. Originally they were interpreted to apply to the Federal government – the level ultimately established by the Constitution – but through the Fourteenth Amendment, they have been applied to all States as well.

Even the Supreme Court has interpreted the Bill of Rights as applying to everyone within the jurisdiction of the United States. In the case of Plyler v. Doe, 457 US 202 (1982), the Court found in a 5 to 4 majority that to deny children who are illegal immigrants a public education is a violation of the Fourteenth Amendment unless the State could reasonably justify such discrimination.

In the case of United States v. Brignoni-Ponce, 422 US 873 (1975), the Court ruled unanimously that to

allow roving patrols the broad and unlimited discretion urged by the Government to stop all vehicles in the border area without any reason to suspect that they have violated any law, would not be “reasonable” under the Fourth Amendment.

In other words, before the Border Patrol can detain individuals attempting to cross the border, they must have at a minimum reasonable suspicion that the individuals are attempting to enter or remain in the country illegally. And this is just the tip of the iceberg.

Any person who is in the United States, whether legally or not, is entitled to full rights under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. The Constitution and Bill of Rights are express limitations on our government, not licenses to citizens. They define the limited circumstances under which the government can do something to a person within her jurisdiction, regardless of whether that person is a citizen, legal resident, or illegal immigrant.

Does the Bill of Rights apply to non-citizens? The answer is an overwhelming Yes.

Follow-up: Please read the article “Revisiting the Constitution and non-citizens” for a more in-depth look at this topic.