Do noncitizens have rights under the U.S. Constitution?
The answer is yes.
On Sunday, faith leaders from dozens of Indianapolis churches came together to promise to be safe harbors for "refugees, immigrants and other marginalized people."
MORE | Mayor Joe Hogsett, faith leaders discuss immigration protections at IndyCAN rally
The story sparked vigorous debate on the RTV6 Facebook page. A common refrain in that debate: The idea that noncitizens have no constitutional rights.
One commenter stated that "only legal Americans have rights here." Another comment asserted that "[noncitizens] have zero rights because they are not American citizens."
But, more than a century of case law shows that not to be the case.
Georgetown University Law Professor David Cole wrote a paper examining just this issue in 2003 entitled "Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?"
As Cole notes, the idea that noncitizens have no constitutional rights is widespread – but largely false.
"Given this record, it is not surprising that many members of the general public presume that noncitizens do not deserve the same rights as citizens. But that presumption is wrong in many more respects than it is right," Cole wrote.
Cole, now the national legal director for the American Civil Liberties Union, points out that the Constitution expressly limits noncitizens from two things: the right to vote and the right to run for federal elected office.
"All other rights, however, are written without such a limitation," Cole wrote. "The Fifth and Fourteenth Amendment due process and equal protection guarantees extend to all 'persons.' The rights attaching to criminal trials, including the right to a public trial, a trial by jury, the assistance of a lawyer, and the right to confront adverse witnesses, all apply to 'the accused.' And both the First Amendment's protections of political and religious freedoms and the Fourth Amendment's protection of privacy and liberty apply to 'the people.'"
In Zadvydas v. Davis (2001), the U.S. Supreme Court ruled explicitly that the Fourteenth Amendment's Due Process Clause applies to noncitizens in the U.S.
In his majority opinion, Justice Stephen Breyer wrote, "…once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."
The court has made similar rulings dealing with the First, Fifth and Fourteenth Amendments in Bridges v. Wixon (1945), the Fifth and Sixth Amendments in Wong Wing v. United States (1896) and the First Amendment in American-Arab Anti-Discrimination Committee v. Meese (1989).
"In short, contrary to widely held assumptions, the Constitution extends fundamental protections of due process, political freedoms, and equal protection to all persons subject to our laws, without regard to citizenship," Cole wrote. "These rights inhere in the dignity of the human being, and are especially necessary for people, like non-nationals, who have no voice in the political process."
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