Civil Liberties of Aliens

The extent to which the Constitution’s Bill of Rights and other political freedoms are enjoyed by noncitizens is a question that has existed since the founding of the United States. Even prior to the ratification of the Bill of Rights, the Constitution’s text distinguished between citizens of the United States and noncitizens, suggesting that the framers intended differential treatment between the groups, at the very least when it limited several federal offices to citizens. Arguably, the two most important differences wrought by citizenship status are the inability of noncitizens to vote and the fact that noncitizens are subject to exclusion and deportation.

Limits on other civil rights—such as the freedom of speech and the free exercise of religion—can be best understood by appreciating the limits on the voting rights of, and the exclusive application of immigration laws to, noncitizens. First, because noncitizens do not enjoy the right to vote, they rely upon citizens to protect their political interests, thereby limiting their ability to secure their rights. Second, because noncitizens are subject to exclusion and deportation under immigration law, their ability to exercise their civil rights in the United States may effectively be denied by removing them to their home countries. Finally, it should be noted that within the group of noncitizens, American constitutional and statutory law generally affords greater liberty and protection to lawful long-term residents than to temporary visitors or undocumented migrants.

The debate over the citizen–noncitizen divide with respect to civil liberties focuses on balancing the desire to preserve the exclusivity of citizenship as a status that ensures a person’s full membership in a polity against the recognition that noncitizens are human beings deserving of a basic level of dignity and liberty. The nation’s first test of the divide came with the passage of the Alien and Sedition Act of 1798. Because it permitted the president exclusive power to deport suspicious noncitizens without being subject to judicial oversight, the act pitted those committed to ensuring that noncitizens be provided the same due-process protections afforded citizens against those who believed the Constitution was created solely for the benefit of U.S. citizens.

On the one hand, Thomas Jefferson, James Madison, and other Democratic–Republicans saw the act as unconstitutionally depriving noncitizens due process of law by failing to subject their executive deportations to procedural check. On the other, Hamiltonian Federalists argued that foreign nationals were not parties to the Constitution, were not its beneficiaries, and therefore could claim no rights under it. In Chae Chan Ping v. United States, 130 U.S. 581 (1889), the Supreme Court sided with the Federalists by recognizing the plenary power of the federal political branches over immigration and noncitizens, citing a nation’s decision to deny entry to a noncitizen as incident to its sovereignty.

Analogously, current Supreme Court jurisprudence recognizes few constitutional due-process and equal-protection limits to federal immigration power, but generally places strict restrictions on the states’ powers to discriminate against noncitizens residing in the United States. Over time, the Supreme Court has reaffirmed Congress’s plenary power over immigration decisions to exclude or deport noncitizens, but has also stated that noncitizens legally within the United States were entitled to a rational-basis review of federal legislation that draws alienage distinctions. Because states do not possess Congress’s plenary power over immigration law, in contrast, the Court has subjected state laws that discriminate against noncitizens to strict review. The Constitution’s Article VI supremacy clause also provides textual support for the idea that where the federal government has chosen to regulate a field exclusively, as it has with immigration law, then contrary state laws are preempted by the federal, rendering the former unconstitutional.

Thus, while in Mathews v. Diaz, 426 U.S. 67 (1976), the Court upheld a federal law limiting the grant of Medicaid benefits only to certain noncitizens, in Graham v. Richardson, 403 U.S. 65 (1971), the Court struck down state laws limiting public benefits to certain individuals based on citizenship. The Court’s protection of noncitizens against state discrimination has extended to undocumented immigrants. In Plyler v. Doe, 457 U.S. 202 (1982), the Court struck down a Texas law that denied free public education to the children of undocumented migrants. The sole exception that the Court has recognized is that a state may limit certain occupations to U.S. citizens when the jobs involved go to the heart of democratic government, as in the case of state troopers (Foley v. Connelie, 435 U.S. 291, 1978) and public school teachers (Ambach v. Norwich, 441 U.S. 68, 1979).

Aside from protecting foreign nationals by employing this federal–state divide in its constitutional alienage jurisprudence, the Court has sometimes chosen to avoid interpreting the constitutionality of a federal immigration act altogether, presumably because it believes its hands are tied by the plenary power or preemption doctrines. Instead, the Court has relied on liberal interpretations of ostensibly anti-immigrant legislation, choosing to uphold and affirm the foreigner’s humanity through the approval of the legislation at issue.

Thus, in Woodby v. Immigration and Naturalization Service, 385 U.S. 276 (1966), the Court held that the government must prove a noncitizen’s deportability subject to a ‘‘clear, unequivocal, and convincing evidence’’ standard, which is more stringent than the ‘‘preponderance of the evidence’’ norm generally used in civil cases, of which deportation proceedings are a kind. Although not based on its interpretation of the Constitution, the Woodby court’s embrace of a standard more protective of noncitizen rights suggests that the judiciary’s willingness to cross Congress’s constitutionally approved plenary power over noncitizens and immigration when the Court believes some fundamental personhood norm might be violated, even if the challenged statute’s language might suggest a stricter reading.

VICTOR C. ROMERO

References and Further Reading

  • Cole, David. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York: New Press, 2003. 
  • Johnson, Kevin R. The ‘‘Huddled Masses’’ Myth: Immigration and Civil Rights. Philadelphia: Temple University Press, 2004. 
  • Motomura, Hiroshi, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, Yale Law Journal 100 (1990): 545–613. 
  • Neuman, Gerald L. Strangers to the Constitution: Immigrants, Borders, and Fundamental Law. Princeton, NJ: Princeton University Press, 1996. 

Cases and Statutes Cited

  • Ambach v. Norwick, 441 U.S. 68 (1979) 
  • Chae Chan Ping v. United States, 130 U.S. 581 (1889) 
  • Foley v. Connelie, 435 U.S. 291 (1978) 
  • Graham v. Richardson, 403 U.S. 65 (1971) 
  • Mathews v. Diaz, 426 U.S. 67 (1976) 
  • Plyler v. Doe, 457 U.S. 202 (1982) 
  • Woodby v. Immigration and Naturalization Service, 385 U.S. 276 (1966) 

See also Citizenship; Equal Protection of Law (XIV)

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